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So what is ‘phone hacking’?

By Professor Ian Walden

Over the past two years there has been much furore over journalists accessing the voicemail of celebrities and other newsworthy people, particularly the scandal involving Milly Dowler. As a result of the subsequent police investigation, ‘Operation Weeting’, some 24 people have since been arrested and the first charges were brought by the Crown Prosecution Service in July 2012 against eight people, including Rebekah Brooks and Andy Coulson. The leading charge was one of conspiracy “to intercept communications in the course of their transmission, without lawful authority.” But what does ‘phone hacking’ mean and has the CPS got it right?

The charge, under section 1 of the Criminal Law Act 1977, relates to an offence under the ominously worded Regulation of Investigatory Powers Act 2000 (‘RIPA’), section 1(1). The RIPA is primarily concerned with the powers of law enforcement agencies to investigate criminality by listening into phone calls and other types of covert surveillance. The Act also criminalises the interception of communication by others, including journalists.

When drafting the 2000 Act, one of the objectives was to update the law of interception to reflect developments in modern telecommunication systems and services, especially email. One element of that reform was to recognise that telecommunication systems sometimes store messages on behalf of the intended recipient, to enable them to collect the message at their convenience. In such circumstances, according to section 2(7) of the RIPA, the communications shall be considered still ‘in the course of transmission’. One key issue to be decided in the forthcoming ‘phone hacking’ cases is therefore whether listening to somebody’s voicemail message falls within this exception.

So why does uncertainty arise? The issue for the court to decide is whether a distinction should be made between accessing voicemail messages that have been listened to by the intended recipient and those that have yet to be heard. In the former case, it can be argued, the communication is at an end and the voicemail service is simply being used as a storage medium. As such, no act of ‘interception’ has taken place.

Answering this seemingly simple question of interpretation is made more complex as a result of an apparent change of position on the part of the CPS. In November 2009, Keir Starmer QC, Director of Public Prosecutions, gave evidence before the Culture, Media and Sports Committee about the meaning of section 2(7). He argued, on the basis of the observations of Lord Woolf CJ in R (on the application of NTL) v Ipswich Crown Court [2002], that the provision should be interpreted narrowly, such that a message was only ‘in the course of transmission’ until it had been collected by the intended recipient. This statement led to a very public disagreement between Keir Starmer and John Yates, the then Acting Deputy Commissioner of the Metropolitan police, who argued for a wide interpretation of section 2(7). By July 2011, however, the CPS had committed a volte-face and decided to “proceed on the assumption that a court might adopt a wide interpretation.”

As a consequence of this legal uncertainty, there would appear to be a very real chance that the coming prosecutions may fail. As well as the considerable waste of police resource that would result, and the adverse impact on public confidence, this reliance on the crime of ‘interception’ seems unnecessary, as suggested by the moniker ‘phone hacking’. An alternative charge would seem to be available under section 1 of the Computer Misuse Act 1990, for ‘unauthorised access to computer material’. This was the original ‘hacking’ statute, and the offence carries the same maximum tariff as that for unlawful interception, i.e. two years imprisonment. There can be no question that a voicemail service is held on a ‘computer’, while it would seem relatively easy to show that the perpetrator, which can include both the private investigator and the requesting journalist, knew that such access was unauthorised.

The rationale for pursuing journalists for ‘intercepting’ rather than ‘hacking’ phones is not immediately clear, but the outcome of the forthcoming cases may simply represent another sorry stage in the long running saga of newspaper phone hacking.

Ian Walden is Professor of Information and Communications Law at the Centre for Commercial Law Studies, Queen Mary, University of London. His publications include Computer Crimes and Digital Investigations (2007), Media Law and Practice (2009) and Telecommunications Law and Regulation (4th ed., 2012). Ian is a solicitor and Of Counsel to Baker & McKenzie.

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