Dan Whalen is a JD candidate at Osgoode Hall Law School.
Disgraced UK tabloid News of the World has finally crumbled under the mounting weight of the national phone-hacking scandal. As investigations heat up and criminal charges seem imminent, it is worthwhile to examine the law that prosecutors will seek to uphold and once again wonder why such little action has been taken until now.
The UK’s Regulation of Investigatory Powers Act 2000 (RIPA) is what transforms phone-hacking from a mere moral wrong to a bona fide legal offence. Specifically, s. 1 of the Act criminalizes the interception of phone calls unless performed by a member of the police or intelligence agencies acting with a warrant from the Secretary of State. Per s. 5(3), such warrants can only be granted in order to protect national security, prevent or detect serious crime, or safeguard the economic well-being of the UK. Notably, there is no exception for journalists or otherwise private citizens – even those purportedly acting in the public interest.
If a recent law, RIPA is hardly a novel concept. The Act was a concerted effort by the Blair government to align the activities of the state and its citizens with the European Convention on Human Rights. Article 8 of the Convention holds that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.”
Given both the law’s phrasing and clear appeal, there has been only minor debate regarding the interpretation of RIPA in the context of phone-hacking. Even News of the World editor Clive Goodman and private investigator Glenn Mulcaire – the only two individuals yet charged in the scandal – gave no protest during their trial in 2006. Rather, they went so far as to submit unreserved apologies along with their pleas of guilty. The voluntary shutdown of the paper by parent company News Corp also seems to be a tacit agreement with the application of RIPA to phone-hacking. Although it is impossible to know how future defendants in this scandal will plea, it thus seems doubtful that any would try to mount a serious challenge to the law.
All this begs the question: Given the increasingly “massive amount of evidence” spanning all echelons of the news world and the mostly undisputed consequences that RIPA bears for such evidence, how has such intrusive journalism escape punishment for so long? Even if the scandal only erupted in 2006, phone-hacking by British reporters has been a known phenomenon since as early as 2002. As noted, RIPA was passed in 2000. That leaves a nine year overlap in which only two individuals were charged. As I mentioned in my previous post, it seems that, as this scandal unfolds further, journalists will not be the only ones left with some explaining to do.