Let me introduce you to the strange world of Hackney Council.
Our story begins in May 2010 with Andrew Boff, a Conservative politician seeking election as Mayor of Hackney.
It would be fair to say Mr Boff did not have an easy relationship with Hackney Council.
For reasons which are not compelling, his election address was not included by the Council in the booklet sent to voters before the mayoral election. There was then a decision to list him as a candidate in that booklet but still exclude his election address.
I understand that this exclusion was based on “Counsel’s advice”, possibly the advice of a QC.
It must have been very clever advice, as I cannot understand why the election address was excluded.
Indeed, the exclusion simply smacks of improper practice.
However, it is not that distinctly odd decision which this blogpost is concerned with.
It is what happened next.
Something very troubling.
According to Mr Boff, and there seems no reason to disbelieve him, he was then contacted by confused voters, who had thought he was not actually standing for election.
For example, as stated in a local newspaper, the Hackney Citizen, Mr Boff received the following email:
My wife called the above number which is on the Hackney Government Mayor Candidate election brochure which was sent to all houses in Hackney and has a two page comment from each Candidate for Mayor. She asked why the Conservative Party wasn’t listed / didn’t have a comment page like the other parties. XXXX1 at Hackney Government who answered the phone said that it is because the Conservative party candidate for Mayor didn’t meet the qualification criteria and so wasn’t eligible to run for Mayor. My wife pointed out that you are on the ballot paper, to which the man said that this was a development that came up after the ballot paper was sent which is why you are included on the ballot but not in the booklet. He also said the Christian party didn’t qualify either.
This was becoming a remarkable situation.
Not only had Hackney Council refused to print and distribute the election address of a candidate for the mayoral election, it was actually telling callers to the election telephone information line that no Conservative candidate was standing at all.
As Mr Boff explained to me:
I received a number of contacts from people who had said that they had called up the Council to ask why my manifesto was not in the Mayoral Booklet and been told I was not a candidate. I must say, that I thought at first they must be mistaken and had misinterpreted what had been said. I also received two emails from people (included on the Hackney Citizen website) which also made the accusation. I decided to test it for myself.
And so Mr Boff telephoned the election information line.
The Hackney Citizen explains what happened next:
Mr Boff the phoned the council as an anonymous caller to hear what enquirers were being told.
Mr Boff said, “The council call centre staff member went to talk to the election office staff to get advice and at the end confirmed that I am not standing”.
This was now a serious matter.
It is really not open for a Council to misinform the public – the electorate – in this way.
Perhaps Hackney Council thought they could get away with this.
However, Mr Boff had taken the precaution of recording his telephone conversation.
And he handed the audio file to the Hackney Citizen.
I asked him why he handed it to the media and not take it up with the Council directly:
I initially did call the Council and asked them what they were going to do about it. I did not receive a satisfactory reply from them.
I also asked him whether it was really appropriate to record the council worker without telling her:
I wanted to reproduce, as far as possible, the experience of a cold caller to the Council. To announce that I was recording the call wouldn’t have been conducive to that aim.
The officer concerned was exemplary and she went out of her way to perform her official functions with efficiency. I wish more were like her!
The Hackney Citizen, quite rightly, ran with the story and posted the audio file on its website. It was (and still is) posted in both a full and edited form.
The council worker is not named nor is she at all identifiable from the audio files.
But what is demonstrated beyond any doubt is that Hackney Council is telling voters that there is not a Conservative candidate for Mayor.
I asked Mr Boff whether the newspaper should have printed a transcript instead:
That’s really a question for Hackney Citizen but I supplied them with the recording which they published. I did not supply a transcript. If I had supplied a transcript I’m sure they would have published that too. I am delighted that they chose to publish it in full and also an edited version. The advantage of the audio recording is that it is very difficult to tamper with and rebuts any accusations that the officer may have been misheard.
I posed the same question to Keith Magnum, the editor of the Hackney Citizen:
We posted the audio clips on our website as we believed there is a clear public interest case, and thought that people should be able to hear the evidence for themselves, believing it to be more compelling than if it had been reported in transcript form.
Now, confronted with such incontrovertible evidence of wrongful conduct, what would one expect Hackney Council to do next?
Hackney Council seems to then take leave of its senses.
One cannot overstate how bizarre and utterly inappropriate its next step is.
Hackney Council threatens the Hackney Citizen with an injunction.
And it does so in a way which is simply astonishing.
See here for perhaps the most witless litigation letter I have ever seen.
The Council does not even trouble itself was stating what law of which it believes the Hackney Citizen to be in breach.
And the Council does not think to mention on what legal basis it believes it can obtain such an injunction.
Any threat by a public authority to use the coercive power of law in respect of public criticism is a matter for concern and should prompt anxious scrutiny.
And any threat by a public authority against a local newspaper reporting alleged misconduct is a serious issue.
But for the public authority to not even state what the applicable law is for the legal threat is extraordinary.
How can the recipient of the threat even take appropriate legal advice as to how to respond to the threat?
The courts and the legislature have been careful to limit the ability of local authorities to threaten injunctions and other legal actions which may inhibit free speech.
The Derbyshire rule prevents public bodies from suing (and thereby threatening to sue) for defamation; the Spycatcher cases ensured that any public body seeking an injunction for breach of confidentiality needs to meet public interest requirements which are not demanded of private bodies.
And the Human Rights Act 1998, which gives effect to Article 10 of the European Convention of Human Rights, provides it is is unlawful for a public authority to do anything which disproportionately interferes with freedom of expression.
What regard does Hackney Council have to any of these significant legal issues in threatening an injunction?
The threatening letter was improper.
And it is to the credit of the Hackney Citizen that it did not back down.
I asked Keith Magnum what his initial response was on receiving the letter:
We were puzzled as the Council’s initial letter did not make any allegations of wrongdoing on our part. It simply stated that in the Council’s view it was unlawful for Mr Boff to have disclosed the recordings to us. We were unsure why the Council addressed their concerns to us, rather than to Mr Boff.
I then asked Mr Boff what his view of the threat was:
Despicable but a confirmation of the generally Orwellian approach that has seen lawyers being used to hush people up and the Council barring people from its premises for not having the right views. This is how they have operated for years. People in receipt of their largesse know that to challenge the Council risks grants being withdrawn and vilification.
What concerned me was the lack of an legal basis for such a serious threat.
An injunction, and a threat of an injunction, should not taken lightly. It is a court order, the breach of which can lead to onerous criminal and civil consequences.
Even in litigation not involving public bodies, injunctions should only be threatened sparingly and then only in respect of precisely stated legal breaches or threatened breaches.
So what did Hackney Council believe to be the actual legal basis for its heavy-handed legal threats? Or would it admit it did not have one and that the threat should never have been made?
I thought I would ask Hackney Council these questions.
Question: On what legal basis was the injunction threatened?
Answer: That the publication of the voice recording was in breach of the Data Protection Act 1998.
The brief history of the matter is that a candidate in the elections who is a very experienced politician did not comply with the legal requirements for submitting an election address to be included in the Mayoral election booklet. The election address submitted was held invalid upon the advice of a leading QC in elections law.
As the candidate’s election address did not appear in the Mayoral booklet, a number of residents telephoned the Council to ask why that was the case. Staff at the Council’s Call Centre were properly advised by the Elections team to explain to callers that the candidate did not submit a valid election address and therefore his election address was not included. Nevertheless the Mayoral booklet did list the names of all the candidates standing in the elections.
We understand the candidate was informed by a few members of the public that they had been told by the Council’s Call Centre staff that he was not a candidate in the elections.
The candidate had the opportunity to direct his concerns about this to the Returning Officer. However he chose not to do so but instead called the Call Centre anonymously and asked why the candidate’s election address was not in the Mayoral booklet. The staff member who answered the call contacted the Elections team for guidance and was told it was because the candidate had not submitted a valid election address.
The staff member returned to the caller to convey that information. The caller then proceeded to ask whether that meant he was not a candidate in the Mayoral election. That was a technical question that the staff member could not answer. She hesitated but as the question was repeated several times, she gave the wrong answer and said he was not.
This was a junior member of staff and the Council regretted that she gave such an answer without seeking further guidance. We have publicly acknowledged and apologised for this mistake.
The conversation having been taped without the staff member’s knowledge by the caller was passed to Hackney Citizen who placed it on its website.
The Data Protection Act regulates the processing of the personal data of living individuals who can be identified from the data. We consider that the voice of our member of staff is personal data because the person could be identified from her voice by those known to her. The Council has at no point objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording.
The Data Protection principles require that personal data be processed fairly by every data controller who processes the personal data. The data controller must give the data subject notice of the processing of the personal data and must process it fairly. In this case, our member of staff was not given any notice and the publication and disclosure of the recording was made without the individual’s knowledge or being given the opportunity to object which can reasonably be regarded as unfair.
Whilst Section 32 of the Act provides that a data controller may be exempt from the principles where he reasonably believes the publication of the material is in the public’s interest, we do not regard the breach of the Data Protection Act to be justifiable under Section 32. This view has been endorsed by external legal advisers who are experts in this area of law. The contents of the tape can easily be reported to the public without playing the actual voice of the person. The Council would have no objection to this nor would we argue that it was not in the public interest. That is not the issue in this matter.
[Note, this answer does not actually explain what the Council thinks entitles it to an injunction as a remedy in this case. The data protection point is incorrect. The voice recording is not personal data. A breach of the Data Protection Act does not not by itself give rise to the right to obtain an injunction against a third party – remember the threatening letter states only that Mr Boff is in some breach, not the newspaper. And the Council does not explain why any of this is not set out in their threatening letter, where it should have been, rather than set out in an email to a blogger – me.]
Question: Will Hackney Council disclose the legal advice and the instructions to the legal department?
Answer: External legal advice was sought from the Media Law Partner of a leading firm of solicitors. That advice is covered by legal advice privilege so we are unable to disclose it.
[I would so love to know which Media Law Partner that was.]
Question: Would Hackney Council have any objection to my Jack of Kent blog (not The Lawyer) hosting the audio files?
Answer: As the Council has stated, it has no objection whatsoever to the publication of a report about the incident and the contents of the conversation between the Council staff and the caller. The objection raised was to the publication of the voice recording of our junior member of staff, who has been extremely distressed about having her voice published in this way.
Question: Why has the Council still not applied for an injunction?
Answer: The Council engaged with the Hackney Citizen on behalf of a very junior member of staff who was extremely distressed by the publication of her voice. The Council has apologised for the mistake this member of staff made and at no stage have we objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording. The Council feels it would serve no further purpose to continue our dialogue with the Hackney Citizen on this matter. The case is closed from the Council’s point of view.
[This is very significant. Not only are the Council wrongly shifting the blame onto a junior employee, which is deeply inappropriate; it is also stating the “case is closed from the Council’s point of view” – however, this was complete news to the Hackney Citizen which still believes it was facing the threat of legal proceedings. To threaten a misconceived and baseless injunction application is one thing; to not bother to tell the potential defendant that the case has been dropped is quite another.]
Question: Does the Council yet accept that it does not have, and never had, any legal basis for threatening an injunction?
Answer: The legal basis is that the publication of the voice recording was in breach of the Data Protection Act 1998. Expert legal advice obtained endorsed this view.
[Again, this is missing the point. The question is what entitled the Council to threaten an injunction. They clearly have not got a clue.]
The answers of Hackney Council to this first round of questions were not promising.
The answers suggested to me the following: the Council had not actually thought through its threat of an injunction; that the “data protection” points were subsequent attempts to rationalise a threat which had been made with out any legal basis, else such points would have been mentioned in the threatening letter; and that the Council’s dropping of the threat was now being done as haplessly as the threat of the injunction had been made in the first place.
It all seemed rather gormless.
So I asked some further questions; indeed, far more pointed and serious questions.
Exactly where in the Data Protection Act is there the legal power for Hackney Council to obtain an injunction against the Hackney Citizen? Please provide the relevant section of the Act for this particular remedy.
Why is the audio recording been treated as personal data? What is the legal test being relied upon? Or is it just being asserted that it is?
When did Hackney Council refer this matter to the Information Commissioner?
Do Hackney Council now accept the letter threatening such an injunction should not on this occasion have been sent? Or would Hackney Council again send a similarly worded letter in similar circumstances?
In general, is Hackney Council resorting to litigation threats too readily? Is Hackney Council actually “out of control” in respect of its threats of litigation?
I waited keenly for the answers to these searching questions; indeed, I waited an entire working day.
And then, at the very end of that working day, I received my response.
Hackney Council was going to refuse to answer these further questions:
The Council engaged with the Hackney Citizen on behalf of a very junior member of staff who was extremely distressed by the publication of her voice. The Council has apologised for the mistake this member of staff made and at no stage have we objected to the facts or the content of the conversation being reported in full. The objection was to the posting of the voice recording. The Council feels it would serve no further purpose to continue our dialogue with the Hackney Citizen on this matter. The case is closed from the Council’s point of view.
I thought I would double-check, just to make sure.
After all, I was raising some fairly serious questions and allegations.
The sort of questions and allegations any public authority acting properly would address as an absolute priority.
Was Hackney Council really refusing to answer these difficult questions?
Their further response was brief:
The case is closed from the Council’s point of view.
Of course, there is one obvious reason why the Council did not wish to answer these further questions.
It realised it could not do so without it becoming even clearer that its conduct in this matter had been improper.
So where does this leave us?
Hackney Council threatened an injunction against a local newspaper without stating the legal basis for an injunction. It then drops the threat in an answer to a blogger’s query without even telling the newspaper.
It then comes up with a preposterous data protection point which it cannot even begin to justify when probed.
In my view, and on the basis of the information I have set out above and available to me, there is something deeply worrying about Hackney Council’s threat of an injunction against a newspaper properly reporting on the Council’s wrongful conduct.
It is not right for any public authority to threaten an injunction against a newspaper in these circumstances.
Hackney Council has acted illiberally and improperly in this matter.
In my opinion, in respect of both the threat and in its failure to properly explain the legal basis of its threat, Hackney Council’s conduct here is a disgrace.
This article was originally published on jackofkent.blogspot.com on Thursday 8 July 2010