The phone hacking story continues to develop on a daily basis and is likely to continue to do so for a number of months. Further significant evidence has now been given to the House of Commons Select Committee and individuals , including Paul Gascoigne and Max Mosley, and companies, now seek to be central participants in the wide-ranging Leveson Inquiry into the media. Meanwhile, further Claimants are emerging with phone hacking claims against the News of the World with whispers as to the extent to which the scandal will infect Fleet Street generally. In January of next year those Claimants who remain (who currently include Jude Law and Steve Coogan) will participate in the first set of phone hacking cases against the News of the World.
But what are the legal principles behind the phone hacking claims and what do the claimants hope to achieve?
Under the Regulation of Investigatory Powers Act (RIPA) 2000 it is an offence for any person to intercept a communication "in the course of transmission" on a telecommunications system. Whether messages received and heard or read but left stored on the voicemail system could form the basis of a prosecution under the Act has been much debated not least because the police acted upon advice that stated it couldn't. This in part is responsible for the slow initial pace of the phone hacking story. There is no public interest defence to the offence and it also creates a civil right of action.
However, it is likely that most claims will be on familiar legal territory relying on misuse of private information/ invasion of privacy, breach of confidence and harassment. Indeed, Sienna Miller's claim was based on all three of these claims. Miller's claim settled with her being awarded an injunction in addition to damages amounting to £100,000. Miller has had a chequered history with News International which was no doubt reflected in the damages which the paper agreed to pay.
A key legal point of principle likely to be tested at the Trials next year is the availability of exemplary damages. Exemplary damages may be awarded where there has been a deliberate and knowing commission of a tort (i.e. a form a civil wrong) and a calculation that more is to be gained through the wrongful act than is likely to be suffered by any compensation to be paid. The High Court refused this in Mosley's privacy action albeit that it noted that the Court had considered it a possibility in the case of Douglas v Hello. In any event, it will be interesting to see how the Court deals with damages in relation to the phone hacking cases and whether the Court increases the generally low bar in respect of damages (other than in relation to Mosley's case) given the extent of the interference with individuals' privacy rights.
Chris Hutchings, partner in Hamlins' media team, acted for Hello! magazine throughout the leading breach of confidence/privacy case brought by OK magazine, Michael Douglas and Catherine Zeta-Zones. The team has extensive expertise and experience in relation to issues relating to image and reputation.
For any further information please contact Callum Galbraith, 0207 355 6033.