The media regulator said that it is investigating whether Sky News has broken broadcasting rules relating to fairness and privacy after using the hacked emails as the basis of story published on the web and aired on the news channel.
Earlier this month Sky News admitted that one of its senior executives had authorised a journalist to conduct email hacking on two separate occasions that it said were in the public interest – even though intercepting emails is a prima facie breach of the Computer Misuse Act, to which there is no such defence written in law.
Ofcom's investigation centres on rule 8.1 of the broadcasting code, which states that broadcasters must follow a series of standards and principles to avoid the unwarranted infringement of privacy in connection with how material to be used in broadcasts is obtained.
"Ofcom is investigating the fairness and privacy issues raised by Sky News' statement that it had accessed without prior authorisation private email accounts during the course of its news investigations," said a spokesman for the regulator. "We will make the outcome known in due course."
A spokeswoman for the broadcaster said: "As the head of Sky News John Ryley said earlier this month, we stand by these actions as editorially justified … The Crown Prosecution Service acknowledges that there are rare occasions where it is justified for a journalist to commit an offence in the public interest. The director of public prosecutions Kier Starmer told the Leveson inquiry that 'considerable public interest weight' is given to journalistic conduct which discloses that a criminal offence has been committed and/or concealed."
Sky News also pointed out that section 8.1 of the broadcasting code contains an explanation about how a broadcaster can justify a privacy infringement if it believes there is a public interest defence. Section 8.1 of the code states: "Where broadcasters wish to justify an infringement of privacy as warranted, they should be able to demonstrate why in the particular circumstances of the case, it is warranted … If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. Examples of public interest would include revealing or detecting crime … "
Sky News believes this defence applies in the case of John Darwin.
Gerard Tubb, the broadcaster's northern England correspondent, accessed emails belonging to Darwin when his wife Anne was due to stand trial for deception in July 2008. The reporter built up a database of emails that he believed would help defeat Anne Darwin's defence. Her husband had pleaded guilty to seven charges of deception before her trial.
Tubb later produced a story for the Sky News channel and website in which he quoted from emails that had been written by Darwin to his wife and to a lawyer.
The broadcaster also published a voicemail message on its website, dated 19 May 2007, in which Anne Darwin is clearly heard leaving a message for her husband.
Sky News has defended its actions arguing that police were made aware of the source of the material and that running the stories was justified in the public interest.
