It has led to Andy Coulson stepping down from his position as the Prime Minister’s director of communications and being questioned by the police alongside former News of the World editor, Rebekah Brooks. It may be that the ongoing police investigations, Operation Weeting and Operation Elveden, will lead to more people, and potentially some quite senior figures, facing criminal charges. The government has announced that a public inquiry or inquiries will be held, but it appears that these will focus on the relationship between the police and the media and media regulation more generally. The criminal side is spoken about in a very black and white way: if a crime has been committed charges can be brought. What constitutes a criminal offence in this area is, however, not quite so readily identifiable or easy to prove.
Regulation of Investigatory Powers Act 2000
The regulation of interception of communications is primarily governed by the Regulation of Investigatory Powers Act 2000 (RIPA). Section 2 of RIPA provides that it is a criminal offence intentionally and without lawful authority to intercept a communication on a private system in the course of its transmission unless it is done or authorised by someone with the right of control. “Interception” is defined as making some or all of the contents of the communication available to someone other than the sender or intended recipient. Crucially, in accordance with section 2(2), interception of a communication has to be “in the course of its transmission”. This has led to debate about the status of accessed and un-accessed messages.
Accessed and un-accessed messages: the Metropolitan Police view…
Addressing the Commons Home Affairs Select Committee in October 2010, the former Metropolitan Police Assistant Commissioner John Yates, himself now embroiled in the scandal, stated that the interception of messages is only illegal when the message has not been listened to, read or collected by the recipient. He claimed to be relying upon the Director of Public Prosecutions, Keir Starmer, QC. The rationale behind Yates’ comments was that once the lawful recipients have read or listened to their inbox messages, each read message “has been transmitted” rather than “is being transmitted” and an offence under RIPA has not been committed.
...and the view of the DPP
However, on 13 March 2011 in an open letter to the Guardian, the DPP took the forthright step of challenging John Yates by alleging that the Assistant Commissioner had misquoted him in an attempt to justify the police response to the current phone hacking scandal. In clarifying his approach, the DPP pointed out that the issue is yet to arise before the courts and stated that he has “advise[d] the police and CPS prosecutors to assume that the provisions of RIPA mean that an offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient.”
John Yates’s interpretation is, however, consistent with the Information Commissioner’s Office (ICO) guidance on the monitoring of employees at work published in 2007, which states that RIPA’s definition of unlawful interception includes access to e-mails before they have been opened by the intended recipient, but does “not...include a business accessing a stored collection of e-mails that have been received and opened or deleted by the intended recipient, and a business accessing a stored collection of sent emails” (see Part 3: Lawful Business Practice Regulations explanatory notes).
Despite that, a close look at RIPA reveals that this interpretation is at odds with s2(7). According to s2(7), “the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”
This means that any message stored to have access to in future “is been transmitted”. As, technically, the nanosecond between someone’s voice being converted into an electromagnetic system and being transmitted to the recipient who listens to the voicemail constitutes a course of transmission, accessing any stored message is interception and should constitute an offence.
This corresponds with the Home Office “Interception of Communications” Code of Practice on the use of the RIPA which states at paragraph 2.14 that it is illegal to intercept communications “at any time when the communication is being stored on the communication system in such a way as to enable the intended recipient to have access to it”. Whilst not referred to explicitly, this implies applicability to all voicemail messages, unread or read.
The view of the courts
The courts are yet to tackle this issue head on. There has been the high profile criminal case in January 2007 of News of the World journalist Clive Goodman and private investigator Glenn Mulcaire, charged with conspiracy to intercept communications as well as substantive offences of unlawful interception of communications which related to accessing voice messages left on the mobile phones of members of the Royal Household. The defendants, however, pleaded guilty without first asking the court to decide at what stage the offence had been committed. The impression from the Metropolitan Police and the CPS is that hacking is very difficult to prove. Integrity of the data and potential corroboration, coupled with the proper consideration that the ‘mischief’ in question is sufficiently serious to warrant a criminal penalty may also provide potential hurdles for prosecutors.
No tort of breach of privacy
A bi-product of the focus on hacking reminds us that both judges and Parliament have fought shy of creating a tort of breach of privacy on a par with the tort of breach of confidence.
The victims’ position
However the civil courts have not frozen out alleged victims of the phone hacking scandal. Mann J, in Phillips v News Group Newspapers Ltd and Mulcaire  EWHC 2952 (brought by a colleague of the publicist Max Clifford) found that hacked messages are “plainly capable of being confidential” and “capable of having a real commercial value” [para 45]. In that case the High Court ordered that Mulcaire must provide answers to questions in relation within the proceedings at the same time as denying him the right to rely on the privilege against self-incrimination.
On this basis, proceedings have been instituted against Mulcaire and News Group in Gray v News Group Newspapers Ltd  All ER (D) 296 by football commentator Andrew Gray and comedian Steve Coogan, who was only alerted by the police to the fact that details of his mobile telephone number, account number and password were in the hands of Mulcaire at the conclusion of their investigation. The police informed Mr. Coogan that there was no documentation in their possession that indicated that his voicemail messages were unlawfully intercepted. Both Mr. Coogan and Mr. Gray are in the process of claiming injunctions and damages for breach of the equitable duty of confidence, invasion of privacy and misuse of private information. Many more suits may follow in light of the more recent revelations.
Guarding against the invasion of individuals’ privacy
Adopting a purposive interpretation of acts such as RIPA and the Computer Misuse Act 1990 must lead to the inevitable conclusion that the state is seeking to guard against the invasion of individuals’ privacy. If such acts are to be labelled as criminal, it seems inconsistent to deny an individual the right to a private civil remedy in the same unrestricted terms. Following this, it would seem that the continuing resistance to creating a distinct tort of breach of privacy is becoming ever-more tenuous.
The need for a uniform approach
Whilst celebrities and high ranking political figures may have forced this topic to the forefront of the political agenda, the breach of privacy furore is starting to have wider and more sinister implications. Therefore, rather than focusing efforts on discussing areas of interpretational dispute, this issue demands a uniform approach by the courts and investigating authorities if the purpose of the legislation is to be achieved.
Sarah Lewis and Yousif Elagab,
18 Red Lion Court