Undercover reporting - 'Cablegate'

11 January 2011. Published by Keith Mathieson, Partner

On 20 December 2010 the Daily Telegraph published a report based on secretly recorded conversations with the Business Secretary Vince Cable.

The reporters from the Telegraph had gained access to Mr Cable's advice surgery by falsely representing themselves as Liberal Democrat supporters. During the conversations Mr Cable had said he had a 'nuclear option' of bringing the Coalition Government down if they pushed him too far.  The report was followed by further reports based on the conversations.  In one such report it was revealed that Mr Cable had 'declared war' on Rupert Murdoch.  In consequence of the report, Mr Cable was stripped by the Prime Minister of any further role in determining the competition aspects of Mr Murdoch's bid to augment his shareholding in BSkyB.  Vince Cable was not the only victim of the Telegraph's sting: a number of other Coalition ministers also made embarrassing disclosures to the paper.

It has been suggested that the reporters breached Mr Cable's confidence.  In an article on the Guardian website David Howarth, a Cambridge law lecturer and former Liberal Democrat MP, argues that the reporters' actions were unethical and illegal.  According to Mr Howarth, the use of subterfuge, misrepresentation and clandestine recording devices was in breach of clause 10 of the Press Complaints Commission's Code of Practice.  Although the code permits the use of undercover methods where the publication is in the public interest, which would include preventing the public from being misled, Mr Howarth argues that there was no prior statement by Mr Cable that would have misled the public: the doctrine of collective cabinet responsibility means only that ministers agree not to contradict cabinet decisions in public, not that they always agree with those decisions.

In Mr Howarth's opinion, Mr Cable (and other MPs caught in the Telegraph's sting) might have civil actions for breach of confidence and breach of copyright.  He points out that it might be difficult to show that any loss had arisen in consequence of the breach of confidence, but he regards a copyright case as 'more promising'.   In a final twist of the knife, he suggests that the Telegraph may have committed an offence under s2 of the Fraud Act 2006 by 'dishonestly making a false representation with the intention of putting someone at risk of pecuniary loss or with the intention of making a pecuniary gain for another'.  He points out that there is no public interest defence under the Fraud Act.

So far as we know, there is no pending legal action against the Telegraph.  The PCC has confirmed to the Guardian that is has received a handful of third party complaints about the affair and it remains to be seen whether any formal adjudication is ever made.  The Telegraph maintains that the use of covert recording was justified and in line with the PCC code.  A spokesman for the newspaper said: "The Daily Telegraph takes the PCC code extremely seriously and has always adhered to it. There is a clear public interest in The Daily Telegraph publishing this story."

See further sections 11.3.4 and 11.3.9 of the Privacy Law Handbook

Daily Telegraph's report

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