On Her Majesty’s Secret Service: UK Extends Meaning of IP in Phone Hacking Case to Remove Self-Incrimination Privilege

In the latest portion of the legal fallout from the News of the World “phone hacking” scandal, the UK Supreme Court held that former footballer and private investigator, Glenn Mulcaire must reveal his contacts with the corporation.

Mulcaire had been attempting to shield himself under the privilege against self-incrimination in civil proceedings centering on the alleged interception of phone messages. Mulcaire’s argument was that the information involved did not constitute intellectual property. However, it was held that s. 72 of the Senior Courts Act 1981 applied to this action, which constituted an intellectual property dispute, negating Mulcaire’s privilege from self-incrimination.

The phone hacking scandal was initially exposed in 2005 when Prince William discovered that a private business discussion was printed in the News of the World. The intricacies of how his private phone messages were hacked, and the ensuing police investigation was explored in a previous IPilogue post. Mulcaire and former News of the World royal editor Clive Goodman were criminally charged and jailed for conspiracy to intercept communications without lawful authority (contrary to the Criminal Law Act 1977). However, years later, it became clear throughout an onslaught of civil litigation that the scope of the scandal within the corporation’s ranks went far beyond Mulcaire and Goodman and their illegal interception of information from the royal family. In July 2012, it was disclosed that nearly 5000 people were victims of the phone hacking scandal, with 74 former News of the World employees being arrested in conjunction with the scandal.

The recent ruling in the ongoing legal battle against Mulcaire will have wide implications for both the ongoing civil and criminal litigation surrounding the scandal, as well as the rights of respondents in future intellectual property litigation. It is dictated in s. 72(2)(a) of the Senior Courts Act 1981 that the privilege against self-incrimination is withdrawn in “proceedings for infringement of rights pertaining to any intellectual property or for passing off”, which left the courts to establish the breadth of the definition of intellectual property in the context of this statute. Intellectual property is defined in s. 72(5) as “[meaning] means any patent, trade mark, copyright [design right], registered design, technical or commercial information or other intellectual property.” The primary issue in this matter was whether the intercepted information constituted intellectual property, which would withdraw Mulcaire’s privilege.

The claimant, Nicola Phillips, held that the intercepted messages contained “business and private information” about her clients, which she contended would place the litigation in the realm of s. 72 under the technical/commercial definition of IP. Mulcaire argued that the phrase “technical or commercial information” was limited by the text “other intellectual property”, seeking to narrowly apply the term to pre-determined forms of IP. However, the Court held that IP is a broad term that is not restricted to conventional application, including the confidential commercial information that was contained in Phillips’ phone messages, even though they contained a personal component. A key distinguishing feature of this interpretation is that solely personal information is not included in the IP heading, unless there is a clear commercial component. This commercial component is exclusive of the ability to turn the information to financial advantage by disclosure to the media. In the present matter, the nature of the information in Phillips’ messages was of a sensitive business nature, and included information about clients’ finances, security issues, and business transactions. In view of the Court’s interpretation of “technical or commercial information”, it clearly fell under the heading, leaving Mulcaire unprotected by the privilege of self-incrimination.

This ruling will undoubtedly influence the innumerable civil suits resulting from the scandal, and seems to have already influenced the criminal repercussions of the scandal. Although the police have not stated explicitly that it was Mulcaire’s disclosure that led to further charges being laid, following disclosure of his statement to the police, Mulcaire and seven others, including Prime Minister Cameron’s former director of communications Andy Coulson, were charged with conspiracy in relation to the scandal. The group will stand trial in September 2012. These charges also indicate that the UK police may seek disclosure of evidence in civil proceedings that may be relevant to ongoing investigations. Professionals in field of private investigation will also likely feel the impact of this case, as the ruling will likely be interpreted as a check to the legality of their actions, especially when under the employment of ‘unsavoury’ clients. Finally and perhaps most importantly, it applies a clear and broad interpretation to the statutory definition of IP, updating the definition to include modern forms of communication that have become staples in the business world.

Ryan Heighton is a JD candidate at Osgoode Hall Law School.

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