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How Hacking Trials Are Reshaping Privacy Law

14.11.2013 Personal Litigation, Commercial Disputes

Max Robinson

Max Robinson Partner

The term hacking was the buzz word in the summer of 2011 when the world watched as the much-publicised scandal engulfing the News of the World unfolded before our eyes.

In a short space of time, a well-known, if not necessarily much-loved, newspaper closed after 168 years of publication, the chief of the Metropolitan Police resigned as did an assistant commissioner and several senior employees and executives of News International (although not Rupert Murdoch and his son James, who had their own humiliation in front of a parliamentary committee).

There have been several arrests, a plethora of civil actions and not forgetting a thorough judicial inquiry into the press undertaken by Lord Justice Leveson.

More than two years after the closure of the News of the World and just when we thought that this scandal was “old news”, we now have the criminal trials against the “people in charge of the purse strings” (as described by the prosecutor Andrew Edis, QC), namely Rebekah Brooks and Andy Coulson.

Although there has been much media hype in respect of the current criminal proceedings, there has also been significant focus on this country’s law in relation to privacy and how it protects, or in some cases doesn’t, a victim of hacking.

The first important fact to point out about the law is that there is no all-encompassing legislation that covers the law of privacy in its entirety. This means that the law in this area tends to be rather incoherent as well as failing to provide any real transparency or clarity.

The law in relation to privacy can be split into two categories: criminal and civil. Criminal and civil actions are brought separately but evidence from the criminal investigations can and has been used in civil cases (and vice versa).

For example, some of the evidence being used against Rebekah Brooks and Andy Coulson in the current criminal proceedings was used during the civil investigations against the News of the World. Moreover, it was, of course, arguably the impetus of the civil cases that forced disclosure from the Metropolitan Police that subsequently caused the collapse of the News of the World.

The Regulation of Investigatory Powers Act 2000 (RIPA) is the primary legislation in relation to the interception of communications (more commonly known as “hacking”).

RIPA regulates the interception of postal and electronic communications (including telephone calls, e-mails and voicemail messages) and makes it a criminal offence as well as a civil wrong to intercept such communications “in the course of its transmission”.

There has been much criticism of RIPA in light of the Milly Dowler case. It has been suggested that the journalists who listened to voice-mail messages on Milly Dowler’s mobile telephone might not have committed an offence under RIPA as they did not intercept these messages “in the course of their transmission” but only after they had been retrieved. However, recent case law has confirmed that the court will not look at cases in such a limited way and that listening to voice-mail messages can indeed be in contravention of RIPA.

Unlike the Data Protection Act 1998 (DPA), there is no “public interest” defence to RIPA, meaning that an interceptor cannot rely on it being in the general public’s interest to know the contents of the victim’s e-mail or voice-mail message.

The maximum sentence for an interceptor convicted under RIPA is up to two years imprisonment. Moreover, in May 2011 the court was given further powers and can now impose a financial penalty of up to £50,000 on anyone involved in unintentional interception.

Section 55 of the DPA makes it a criminal offence for a person to knowingly and recklessly obtain or disclose personal data. The DPA covers access to confidential databases, such as telephone accounts and bank records.

The DPA does contain, unlike RIPA, a public interest defence. It is worth noting that breaching the DPA is far less severe than breaching RIPA as it does not currently attract a custodial sentence, but punishment can include an unlimited fine. However, there is speculation that the DPA might be amended in order that a custodial sentence can be given in some circumstances.

With numerous different applicable laws that make it complicated to pursue criminal claims, it is often left to civil claimants to pursue their own claims to obtain some sort of justice and, of course, compensation for breach of privacy.

The Human Rights Act 1998 was the first piece of legislation in which protection of privacy was codified into statute after the incorporation of the European Convention on Human Rights (ECHR) into domestic law.

Subsequently, the court has had to weigh up the significance of an individual’s right to a private and family life (Article 8 ECHR) against a newspaper’s right to freedom of expression (Article 10 ECHR).

This is often a fine balancing act but it is clear that the misappropriation of confidential or private information may give rise to a successful privacy claim. However, there may of course be a public interest defence. It seems entirely reasonable that an individual should have an expectation of privacy in respect of their personal telephone conversations, e-mails and voice-mail messages.

It may be difficult for a newspaper to pass the public interest test associated with Article 10 and this was highlighted in the Max Mosley case, where the court set a particularly high threshold in relation to this test.

In this case, the News of the World could not rely on the Article 10 defence as it was not considered a matter of genuine public concern. The court decided that there was a big difference between what is interesting to the public and what is in the public’s interest to make known.

A selection of remedies is available to successful civil claimants and these mainly involve damages.

The court must assess and quantify the invasion of privacy, which could include distress, hurt feelings and loss of dignity. This is often difficult to quantify as many cases reach an out of court settlement.

Ultimately, the key aspect in relation to damages is the measure of what and how much information was taken and what it was used for. Information with commercial elements might 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 have been in excess of £2 million.

In summary, the civil and criminal law in relation to privacy seems to be ever changing as the courts respond to the public outrage after the closure of the News of the World and the subsequent criminal cases against many of its former employees.

We shall see shortly how the court deems the actions of Rebekah Brooks, Andy Coulson and the other key defendants. These proceedings will doubtlessly deter these journalistic habits being used in the future.

Article authors:

Max Robinson