Phone-hacking claims - a new legal pursuit

26 January 2011. Published by Keith Mathieson, Partner

The pack of lawyers representing the alleged victims of phone hacking by the News of the World seems to grow on an almost weekly basis.

The lawyer for Gordon Taylor, possibly the first person to get a settlement from the newspaper, seeks distinction as the person who “devised the ‘phone-hacking’ claims.  He is said to be acting for several claimants.  At least three other law firms say they are either actively pursuing claims against the newspaper or advising clients on potential claims.  But what is the law on phone hacking and what do these claims actually amount to?

The act of intercepting someone’s telephone calls is most obviously a criminal rather than a civil matter.  Section 1 of the Regulation of Investigatory Powers Act 2000 makes the unauthorised interception of communications a criminal offence.  The offence covers fixed and mobile telephone lines, emails, texts and pager messages.  A person ‘intercepts’ a communication by making some or all of the content of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.

Does s. 1 of RIPA apply to the hacking of voicemail messages?  The police have apparently taken the view that it does not unless the message has not yet been listened to by the intended recipient: see their evidence to the House of Commons Culture, Media & Sport Select Committee in 2009 (at page 364).  But the CPS is now reviewing the matter and is reported to be thinking that s. 1 may indeed apply to the hacking of messages whether they’ve been listened to or not – a position that would strike most people as what the law must surely have intended.  This is also what s. 2(7) of RIPA seems to say.

Phone hacking may also be an offence under s. 48 of the Wireless Telegraphy Act and it may attract criminal sanctions under s. 55 of the Data Protection Act 1998.

Civil liability may of course also arise under the Data Protection Act – the unauthorised interception of phone messages is the antithesis of fair and lawful processing of data.  Finally, phone hacking will usually give rise to liability for misuse of private information and/or breach of confidence and/or breach of Article 8 rights.  It seems to have been quite easy for the News of the World to have accessed people's voicemail messages, but the lack of security attached to individuals' voicemail systems can hardly be interpreted as in invitation to listen in.  And it will be a rare case when such an interference will be held to have a legitimate public interest justification.  Clause 10 of the Press Complaints Commission's Code of Practice does, however, at least envisage the possibility of phone hacking being in the public interest.

For all the media coverage and the hue and cry of the legal pack, it is not yet clear how many of the various alleged victims of phone hacking who are said to have claims will actually be able to pursue them.  Some, such as Nicola Phillips, the former PA to Max Clifford, and the freshly-sacked football commentator Andy Gray, are involved in applications for disclosure of documents, suggesting that their claims are not yet fully formed.  Others such as Lord Prescott and Chris Bryant MP are also seeking disclosure of information (in their case from the Metropolitan Police) and (oddly) a declaration that their Article 8 rights have been infringed by the police.  It remains unclear how many claimants are actively pursuing the News of the World or will ever be able to do so.

See further sections 7.3, 4.3.4, 5.8.2 and 11.3 of the Privacy Law Handbook

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