Unprecedented Privacy Awards in Phone Hacking Cases

22 May 2015

Author: Olivia O'Kane
Practice Area: Media and Defamation

O_okane

Lord Justice Leveson led the inquiry set up to investigate the role of the press and the police in the phone hacking scandal. On 14 November 2011 he opened up hearings by saying:

“The press provides an essential check on all aspects of public life. That is why any failure within the media affects all of us. At the heart of this Inquiry, therefore, may be one simple question: who guards the guardians?” 

Throughout the last few years we have seen High Court litigation, inquiries and criminal investigations into phone hacking.  During the scandal, and after 168 years of operation, News Group Newspapers announced on 10 July 2011 that it would close one of its bestselling titles, News of the World.

More recently on 13 February 2015 Trinity Mirror, owner of three national newspaper titles (MGN Ltd), the Daily Mirror, the Sunday Mirror and the People, published public apologies to: “all its victims of phone hacking.”

During March of this year, Mr Justice Mann presided over a four week trial in London’s High Court, in respect of further phone hacking claims brought against MGN Ltd; such claimants included Sadie Frost, Paul Gascoigne, Shane Ritchie and TV producer Robert Ashworth for example. 

The judgment in the MGN Ltd Hacking Litigation was handed down yesterday and is reported to be some 712 paragraphs long. The judgment provides a detailed analysis of facts, evidence and of the award of damages in respect of the various invasions of privacy. It is reported that the Judge awarded substantial damages to the claimants totaling over £1m, ranging from £72,500 for Lauren Alcorn to £260,250 for Sadie Frost. The judge said the victims had all suffered a:"serious infringement of privacy" and that the scale of hacking was: "very substantial indeed".

One of the claimants judgments is 195 pages long, Gulati v MGN Ltd which described the claim as seeking compensation for a number of reasons, described at paragraph [108]:

“the compensation should have several elements.  There is compensation for loss of privacy or “autonomy” resulting from the hacking or blagging that went on; there is compensation for injury to feelings (including distress); and there is compensation for “damage or affront to dignity or standing” [108].

There can be no doubt that the judge considered phone hacking as extremely serious.

While Trinity Mirror Plc. noted that MGN Ltd accepted it should pay appropriate compensation to individuals who were the target of phone hacking, it is understood that their initial view is that the calculation of damages may require clarification on an appeal. But it is not clear or even certain if an appeal will be progressed.

While the courts in Northern Ireland and elsewhere in the UK did not previously recognise a privacy law until after the enforcement of the Human Rights Act 1998 (HRA), there was some protection for private information pre 2000, including photographs and other recordings, in the traditional and well settled law of breach of confidence. 

Since the HRA our courts have developed our law in line privacy laws enshrined under Article 8 of European Convention on Human Rights (ECHR) protected by the Strasbourg Court.

A new cause of action for “misuse of private information” was first recognised in the Naomi Campbell case (Campbell v MGN [2004]), when the court first recognised that certain information may attach a reasonable expectation of privacy to it.  If information is deemed to be private, the courts then conduct a balancing exercise to determine whether that right to privacy can be justifiably curtailed by the right of freedom of expression as enshrined in Article 10 ECHR.  The Courts have recognised that it is of the greatest importance that the balance between these two considerations is struck in the right place. Naomi Campbell was awarded £3,500 for her privacy intrusion.

Until today the highest privacy award in the UK was £60,000 in respect of intrusions by the News of the World online when it published images and video recordings surreptitiously obtained of Max Mosley at a sex party. The newspaper had also falsely claimed it had a Nazi theme.

There are a number of statutory and common law protections of private information for a number of scenarios such as private post protected under the Postal Services Act 2000 and also the Data Protection Act 1998 which protects living individuals’ private information. 

The law on phone hacking and breach of personal private data is rather more complex than a case involving a misuse of private information claim. Hacking into messages on mobile phones is covered by the same law which now regulates phone tapping and other forms of covert information-gathering, the Regulation of Investigatory Powers Act 2000, known as RIPA, and can amount to a criminal offence. 

Perhaps it is the particularly deceptive method which is used in phone hacking together with the consequences of what hacking caused to its victims which accounts for the spectacular compensation awards.

Once I have considered all of the voluminous judgments in detail we will update you again about the court’s methodology in calculating damages for these types of cases.

For more information please contact Olivia O'Kane.

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