Phone hackers get the message

Do IP rights subsist in telephone voice messages? That was the central issue in the recent cases of Coogan v News Group Newspapers Ltd [NGN] & Glenn Mulcaire and Phillips v NGN & Glenn Mulcaire, which were heard ­together before the Lord Chief ­Justice of England and Wales, the Master of the Rolls and the vice-­president of the Court of Appeal (CoA).

Claims were brought by comedian Steve Coogan and Nicola Phillips, a former assistant to publicist Max ­Clifford, against NGN alleging that voice messages on their mobile phones had been intercepted ­unlawfully by, or on the instructions of, private investigator Mulcaire and/or NGN. At first instance Mr ­Justice Mann in the Coogan case and Mr Justice Vos in the Phillips case held that Mulcaire could not rely on the common law defence of privilege against self-incrimination (PSI) in order to resist disclosing certain ­information about who instructed him to intercept those voice ­messages.

This was because Section 72 of the Senior Courts Act 1981 removed PSI in IP cases, including those relating to “technical or commercial information or other intellectual property”. The Master of the Rolls, Lord ­Neuberger, dismissed the appeals in a judgment that is characterised by its pragmatism.

PSI has been reduced in scope by many disparate statutory provisions and Neuberger added his voice to the longstanding calls of high ­authority for this privilege to be ­abolished.

There are several areas of privilege, such as legal professional privilege, that are an uneasy mix of common law and fragmented pieces of ­legislation.
These muddled areas ­require ­rationalisation so that they can be understood, in particular, by ­international litigants.

Neuberger held that, “while the prevailing view is that confidential information is not strictly property, it is not inappropriate to include it as an aspect of intellectual property”.
In doing this Neuberger sidestepped the sterile debate about whether ­confidential information is or is not property. This may well have consequences for the types of relief that may be ­obtained in such cases and offers scope for invention.

Substantively, Neuberger held that “non-commercial - and in particular personal - information, which could be protected in law on the grounds of confidentiality”, fell within the ambit of “or other intellectual property”. This finding was “a matter of both principle and practice”, which ­illustrated the pragmatic approach adopted in these cases in order to reach a conclusion that resulted in justice being done.

This objective was facilitated ­further by waiving aside difficulties over disclosure in relation to ­messages that might contain neither commercial information nor any other IP, as well as issues over whether Phillips had proper locus standi to bring the action.

Does the CoA now have a successor to Lord Denning?