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The legal and moral issues surrounding phone hacking by News of the World


By The Drum Team, Editorial

July 6, 2011 | 8 min read

As more revelations are made against the News of the World's phone hacking practices continue to pour out, with the public becoming more appalled the more they hear, Intellectual Property, Media & Social Media Lawyer Steve Kuncewicz discusses the implications these stories will have on the media and those involved.

“Phone Hacking” has been making headlines in the very news outlets it is alleged have been complicit in it over the last few months, but no accusation made to date has been as serious as those made today against the News Of The World and its former editor (and now chief executive of News International) Rebekah Brooks.

The accusations were made after it emerged that Glenn Mulcaire, a private investigator formerly engaged by News International to gather intelligence on a number of high-profile celebrities and other public figures, may have been involved in or responsible for hacking into the voicemail of murdered schoolgirl Millie Dowler and the families of the victims of the Soham murder victims – all allegedly under Brooks’ watch.

The outcry has been understandably huge and predictably universal. Brooks has apologised as far as she can without admitting liability at this stage, which itself follows a public apology and admission of liability by News International in April this year to several celebrities who were put under surveillance by the News Of The World and their voicemails intercepted.

News International’s statement came after a long-running internal investigation and described “past behavior” as “a matter of genuine regret”. The company took steps to set up a compensation scheme for “justifiable claims” after “failing to uncover important evidence”, leading to action which was “not sufficiently robust”.

It followed the launch of several sets of civil proceedings against the tabloid by, amongst others, Sienna Miller, Steve Coogan, Kelly Hoppen, George Galloway, Andy Gray and Tessa Jowell. Some have already settled their claims and the estimated damages bill was thought to be around £20 Million, with each case and payout assessed in line with a set of criteria including whether or not the interception of voicemails actually led to a story being published.

Even if you believe that the Press’ freedom to report has been cut back too far by the Courts after the Max Mosely case in 2008 it’s impossible not to have sympathy for the Dowler Family, whose grief may well have been exploited for the sake of circulation and intensified by the apparent checking and/or deletion of messages from Millie’s mobile phone by a third party who was listening in rather than Millie herself, giving them false hope that she was still alive.

Amidst the growing hysteria, it’s worth looking at the legal as well as moral issues around phone hacking if for no other reason than to get an idea of the punishment which may await those found responsible.

Phone hacking involves both criminal offences, which can lead to a fine and/or imprisonment for those involved and a civil cause of action which allows its victims to sue for damages.

Section 1 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) makes it an offence to intentionally intercept communications transmitted over a public telecommunication system without a “lawful excuse”, which will only usually cover investigations by the Police or Security Services. Section 3 of the Act allows any victim of unlawful interception to sue in the Civil Courts. Unlike many similar offences and civil claims, there is no “public interest” defence available to Hackers.

The first major conviction under RIPA for phone hacking came in 2006 after Journalist Clive Goodman and Glen Mulcaire received prison sentences following the alleged surveillance of several members of the Royal Family against a backdrop of claims that there were only a few “rotten apples” involved. That statement now seems hollow at best.

Additionally, the Data Protection Act 1998 (DPA) allows the Information Commissioner’s Office to prosecute hackers for criminal offences including unlawfully obtaining, disclosing and procuring the collection of personal under section 55. Available defences involve obtaining the information in question to prevent or detect crime or if otherwise authorized to do so, again leaving surveillance solely within the province of the Police or other law enforcement bodies except where a disclosure is in the public interest, which is exceptionally rare and inconceivable in the case of the latest allegations.

Prosecutions brought over alleged instances of phone hacking under either Act have not so far led to the deterrent action that many predicted or expected, but in the wake of new evidence and a public outcry, several Journalists and their support teams may well now find themselves facing serious criminal penalties.

Even if evidence which proves guilt to the criminal standard of proof – beyond reasonable doubt – isn’t available to the prosecution or any sentences continue to be more lenient than victims may demand, further civil cases will be almost inevitable and may be far more damaging to the Journalists involved (at least in monetary terms) as well as easier to prove on the “balance of probability” – that one version of events is more probable than not.

Apart from a civil claim under section 3 of RIPA, the hotly-disputed “right to privacy” established in cases involving Naomi Campbell and Max Mosley will form the basis of at least some of the ongoing and future civil claims against News International and any other Newspapers who are alleged to have been involved in similar conduct.

UK privacy law is a combination of a balancing act involving the individual’s right to respect for their private and family life enshrined in Article 8 of the European Convention on Human Rights and the Press, the same convention’s Article 10 guarantee of Freedom of Expression (usually the basis for the Press’ defence to such claims) and the law of confidentiality, which deals with the misuse of information that is confidential in nature and disclosed under conditions which give rise to an obligation of confidentiality.

The basic question which the Court needs to answer in any privacy case is whether or not an individual has a “reasonable expectation of privacy” in the information obtained and/or disclosed without their consent, and whether or not the Press’ ability to report matters of public interest should take precedence over that expectation. It’s hard to see how personal voicemails can ever be seen as anything but private, especially in light of the judgment in Mosley v NGN which set the bar for public interest comparatively high – there is a big difference between what is of genuine public interest and what it simply “interesting to the public”.

Former Government Director of Communication Andy Coulson claimed earlier this year that there was no “culture of phone hacking” during his tenure as Editor at the News of The World, but today’s reports tell a potentially very different story – the worry in April was that not only was phone hacking far more widespread than had been suggested, but it went far higher up the chain of command than the “lone Journalists” previously suspected and the News Of The World may not be alone in being willing to step outside the law in search of a scoop.

Questions are being asked over how widespread phone hacking really is in the British press, how many Journalists have been involved and how much was known about their activities by senior management, including Rebekah Brooks. We’re no longer talking about a lone Journalist, and the aborted criminal investigations may now be the focus for renewed criticism.

Examples will almost certainly be set (hopefully internally as well as externally) and any institutional and systematic invasions of privacy simply will not be tolerated any longer, especially after several previous abortive investigations. Even though the Crown Prosecution Service had previously concentrated their efforts on voicemails intercepted before they were listened to by the intended recipient, this may now be less of a concern and even older messages may be the focus of new investigations after the apparent revelations in the Dowler case.

As the scandal continues to develop, more and increasingly sensational allegations are likely and it may be a long time before British investigative journalism rebuilds its previously enviable reputation. Although the allegations are just that and remain unproven at this stage it seems hard to imagine that those suspected of involvement will be able to remain unpunished for too much longer. Freedom of expression and investigative journalism must and will certainly survive, but not by any means necessary.


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