"Over recent years I have been increasingly concerned at the growing distrust of some of our politicians."(Ben Shenton, Election profile, JEP)
Below is my text of the complaint I made regarding Senator Ben Shenton's conduct, which I made by email on the 26 March 2010. I have now received (06 April 2010) a letter from the committee informing me that they will be investigating the complaint.
I make in the letter a clear distinction between what I regard as acting dishonestly (as a matter of moral judgement), and acting illegally (which is a matter of law). Just so the distinction is clear, I am using dishonesty in the sense of a lack of probity, perfidiosity or treacherousness, which certainty seems to fit Senator Cohen's reaction to someone he says he supposed was a friend. As Ben Queree noted: "Not telling Senator Cohen that the conversation was being recorded was dishonest, keeping that record for two years was devious at best, doing all this to a colleague who thought he was talking to a friend is just rubbish and breezily passing it all off as his public duty is ridiculous"
I notice with interest that Senator Shenton appears to be mounting a "public interest" defence, asking what he was to do as he had the recording. If that succeeds with PPC and Data Protection, I hope they bear in in mind when considering the case of Senator Stuart Syvret, so that we can have some consistency.
Dear Constable Gallichan
I note that the Standing Orders clearly state -
Elected members should at all times conduct themselves in a manner which will tend to maintain and strengthen the public's trust and confidence in the integrity of the States of Jersey and shall endeavour, in the course of their public and private conduct, not to act in a manner which would bring the States, or its Members generally, into disrepute.
Elected members should at all times treat other members of the States, officers, and members of the public with respect and courtesy and without malice, notwithstanding the disagreements on issues and policy which are a normal part of the political process.
I wish to make a formal complaint about the conduct of the Senator Shenton who has impugned the reputation of the States Assembly and the Scrutiny panels by his surreptitious use of a phone recordings of Senator Frederick Cohen, contrary to the Data Protection Jersey Law.
I would note that it is generally accepted (e.g. in the UK and EU Member States) that recording or monitoring of calls is only prohibited where some of the contents of the communication - which can be a phone conversation or an e-mail - are made available to a third party, i.e. someone who was neither the caller or sender nor the intended recipient of the original communication. For example, according to Oftel, you do not have to let people know that you intend to record their telephone conversations, provided you are not intending to make the contents of the communication available to a third party. If you are you will need the consent of the person you are recording. In the UK, where organisations do feel it necessary to record or monitor calls - for whatever reasons - the rules under which they do so have been set by the Privacy of Messages condition of the major two telecoms class licences - the Self-Provision (SPL) and Telecommunication Services (TSL) Licences. The most fundamental requirement of this condition has been that every reasonable effort is made to inform all parties to a telephone conversation that it may or will be recorded.
While UK law does not apply in the case of Jersey, I would argue that the code of practice of Data Protection there certainly would apply, as it is simply a gloss on the Data Protection Law, which in basic terms is equivalent to ours. This states that:
Recording (and use of recordings) where X would be able to establish the identity of either party to the call, either directly from the recording or from other information which it is conceivable that X could obtain, would require you to first:
(i) Have informed that party how the recording would be used;
(ii) Obtain consent for the recording to take place (This may be implied from the fact that the customer has been notified and not object, but it is you should obtain explicit consent if the call reveals any information classified as sensitive by the DPA, ie details of race/ethnic background, political opinion, religion, trade union membership, physical/mental health, sexual life, offences committed or legal proceeding bought.)
(iii) The obligations in relation to processing of that data also apply, so that the data must be kept for longer than necessary, under secure conditions and must be accessible to the customer at their request.
I would note that Senator Shenton made a private conversation with Senator Cohen public, and by doing so eroded the confidence in the public's trust and confidence in the integrity of the members of States of Jersey, acting dishonestly (if not also illegally) by not obtaining consent from Senator Frederick Cohen. It is acceptable that Senator Shenton obtained the recording by accident (although without any notification that calls were being recorded!), but his use of it without the consent of Senator Cohen is clearly in breach of this code of practice.
I would therefore like to request that you investigate what seems a clear breach of standing orders.
I have also sent a copy of this email to Emma Martins so that she can investigate any breach of Data Protection in Jersey; clearly, in the UK, this would certainly be the case, and have sent copies to other parties who may be interested in the outcome.
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