The UK Financial Conduct Authority grabbed six-years of call records from a Daily Mail financial journalist and exposed his sources at the request of its French counterpart.
Details of calls made and received by journalist Geoff Foster from 4 July 2007 to 14 June 2013, including the telephone numbers and identities of his sources, were handed over to the Autorité des Marchés Financiers (Financial Markets Authority) by the UK financial regulator.
Foster has been fined €40,000 by the AMF for alleged insider trading, relating to two “market report” articles published in 2011 and 2012 in which he reported on a possible bid from French luxury goods conglomerate Louis Vuitton Moët Hennessy to buy rival fashion retailer Hermès.
It is alleged that he improperly revealed “privileged information” in advance of publication, leading to the insider trading charge.
According to Bloomberg’s report of the hearing, Foster told the court: “In my 40 years’ experience, 27 years working for the Daily Mail, I definitively wouldn’t tell anybody what was going to be in my market report. It would have been a serious breach of my ethics and professional principles.”
A spokesperson for Foster and Daily Mail publisher Associated Newspapers has branded the court decision “deeply troubling” and as having “serious implications for financial journalism”.
Foster, who is now retired, intends to appeal the ruling.
On 22 September 2014 the FCA handed over all of its call data on Foster in two CDs, one of which contained an Excel file titled “AMF – Foster comms data 20140904”, according to court documents (translated from French).
It followed a request from AMF investigators on 14 August 2014 that the FCA hand over all material covering a five-year period that would reveal the existence of links, both social and financial, “between Foster and a third party, or one of his clients”.
According to court documents, the request was made under the International Organisation of Securities Commissions agreement, of which the AMF and FCA are both signatories.
In response to claims in court that AMF breached Foster’s human rights under European conventions, it claimed it had not specifically requested the details of his communications records.
The FCA is likely to have used the Regulation of Investigatory Powers Act, or RIPA, to obtain the data.
This was prior to an overhaul of the legislation in 2016 and before Press Gazette’s Save Our Sources campaign, which in 2015 succeeded in making any such requests for journalistic material subject to judicial sign off.
An FCA spokesperson told Press Gazette: “We do not comment on operational matters. However, we confirm that if we seek communication data as part of an investigation, we always comply in full with relevant legal requirements, including under RIPA.
“Our compliance with RIPA is subject to external inspection, and we have always been found compliant.
“Additionally, as part of standing arrangements under the multi-lateral MOU, we cooperate with overseas regulators, including the AMF, and share information for use in investigations.”
A spokesperson for Foster and Associated Newspapers said: ‘This is a deeply troubling decision with serious implications for financial journalism which Mr Foster intends to appeal.
“As the AMF recognised, Mr Foster – who retired some years ago and was the only journalist to cooperate at every stage of the investigation – never derived any personal benefit from trading in any shares and did not manipulate the market in any way.
“He has denied throughout that he ever told anyone what he was going to write and none of his articles came from insiders within any of the issuers of the stocks in question.
“The FCA’s decision to reveal a journalist’s confidential sources by submitting his phone records over many years – which were not even requested by the AMF – is an equally worrying aspect of the case.”
The Press Gazette Save Our Sources campaign was launched in September 2014 after this publication revealed that the Met Police had viewed the phone records of Sun political editor Tom Newton Dunn in order to find and punish officers accused of leaking information to the paper about the “Plebgate” affair.
The campaign helped prompt the Interception Commissioner to launch an inquiry which found police forces had used RIPA to secretly view the phone records of 82 journalists in order to identify their sources in a three-year period.
Up to 2015 such requests had been signed off internally by police forces themselves. The Interception Commissioner found that forces had ignored considerations of Article 10 (freedom of expression) of the European Convention on Human Rights which give a high level of protection to journalists’ sources under European law.
The commissioner then called for a change in the law to provide judicial oversight of telecoms requests to find journalists’ sources.
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