Briefing and Articles
7th December 2011
Hacking - does the Law protect You?GDNEWS Winter 2011 - Article by Max Robinson
"Hacking" was the buzz word of the summer as the News of the World (NOTW) was engulfed in scandal. Very quickly, a well-known newspaper closed after 168 years, the Metropolitan Police Chief and an Assistant Commissioner and several senior employees of News International resigned. There have been several arrests, a plethora of civil actions and a judicial inquiry under Lord Justice Leveson which is now taking evidence. However, much focus has been placed on this country's law in relation to privacy and how this protects, or in some cases doesn't, a victim of hacking.
There is no all-encompassing legislation covering the law of privacy in its entirety resulting in law that tends to be incoherent, providing neither transparency nor clarity.
The law of privacy is split into two: criminal and civil. Those actions are brought separately but evidence from criminal investigations can be used in civil cases. It was arguably disclosure by the Metropolitan Police in the criminal cases which subsequently contributed to the collapse of the NOTW.
The Regulation of Investigatory Powers Act 2000 ("RIPA") governs the interception of communications (commonly known as hacking). RIPA regulates the interception of communications (including telephone calls, e-mails and voicemail messages) and makes it a criminal offence as well as a civil wrong to intercept these "in the course of its transmission".
There was much criticism of RIPA after the Milly Dowler case. It was suggested that the journalists who listened to voicemail messages on Milly Dowler's mobile after they had been retrieved might not have committed an offence under RIPA as they did not intercept messages "in the course of their transmission".
It is not illegal to intercept communications if the interceptor does not disclose the recording to a third party, provided it is for the recorder's own use. However, if an interceptor discloses the recording to a third party such as a newspaper, this is an offence under RIPA.
There is no "public interest" defence, so an interceptor cannot say it was in the general public's interest to know of the contents of the victim's e-mail or voicemail message. The maximum sentence for this under RIPA is up to two years' imprisonment.
The Data Protection Act ("DPA") is another piece of legislation that makes it a criminal offence for a person knowingly and recklessly to obtain or disclose personal data. DPA mainly covers access to confidential databases, such as telephone accounts and bank records.
DPA does recognise, unlike RIPA, the public interest defence. Breaching DPA is far less severe than breaching RIPA as it does not attract a custodial sentence although punishment can include an unlimited fine.
With numerous different applicable laws making it complicated to pursue criminal claims, it is often left to civil claimants to pursue their own claims in order to obtain some sort of justice and compensation.
Since the European Convention on Human Rights ("ECHR") was incorporated into our law, the Courts have had to decide whether to give precedence to one's right to a private and family life (Article 8 ECHR) or the newspapers' right to freedom of expression (Article 10 ECHR). This is a fine balancing act but it is clear that the misappropriation of confidential or private information would give rise to a successful privacy claim. It seems entirely reasonable that one has an expectation of privacy in respect of personal telephone conversations, e-mails and voicemail messages.
It will be very difficult for a newspaper to pass the public interest test. This was highlighted in the Max Mosley case where the Court set a particularly high threshold in relation to the public interest test. The NOTW could not rely on the Article 10 defence as it was not considered a matter of genuine public concern. It decided that there was a big difference between what is interesting for the public and what is in the public's interest to make known.
Remedies mainly involve damages. The Court must assess the invasion of privacy, which could include distress, hurt feelings and loss of dignity. This is difficult to quantify and there is very little case law as most cases settle out of court. Ultimately, the key aspect for damages will be what and how much information was taken and what it was used for. Commercial information may well attract a higher award of damages than information that simply causes distress, hurt feelings and loss of dignity. However, damages for distress in relation to the family of Milly Dowler might well have been vast had they not chosen to accept an out of court settlement from News International rumoured to be between £2 to £3 million.
This article was published in the Winter 2011 edition of the GDNEWS. A copy of the newsletter, which includes additional articles, is available using the link below.