For months the British media has been mired in the phone hacking scandal and today I’ve been thinking about some legal issues it has raised.The first is whether voicemail messages and text are ‘confidential information’ under the Law and the second, wider issue is about whether such CI should be covered by a specific right to privacy under English Law.
As lawyers we are used to the concept of confidential information being a type of intellectual property. CI usually appears as defined term in business contracts and non-disclosure agreements. The definition of it is always more or less the same to cover secret business information, IP, sales & marketing information and business processes but it might occasionally be tweeked by the lawyer drafting it if they know the client has something particular in mind . The question is though, with so much data being created, stored and made freely available by private publication on social media, blogs and even Wikipedia, how do we determine what is “confidential information” and a legally protected form of Intellectual Property and what is personal information and thus not IP? Should we not even try to distinguish the two?
In the recent English Court case of ((i) Coogan and (ii) Phillips v News Group Newspapers and Mulcaire, Coogan and Phillips claimed that their hacked voicemails were confidential information. The Judge decided that the voicemails probably were a type of intellectual property and they probably contained commercial or confidential information. Good, that’s clear then! This leaves the vexed question of whether the content of a voicemail has a bearing on whether the message is CI or not? It seems logical that it should. If the message relates to business or commerce then it probably is CI, right? But what if the message contains personal rather than business information? In the datacentric world of social media, personal data is a commodity and why shouldn’t it also be protected as valuable confidential intangible/intellectual property?
We might cross the line here into arguments for a right to privacy. Under English Law no such right exists. Recent cases such as Douglas v Hello! have conceded that there is a civil right (or tort) against ‘breach of confidence’ and have permitted claims for ‘misuse of private information’ arising from the premise that personal information can also be CI, but these torts have been strained to fit a judgement that seems ‘proper’ where no other law would adequately assist.
In light of the clear failure of Press self-regulation and the exponential growth of data in a myriad of forms, perhaps it’s time we stopped thinking of CI as commercially focused and consider all information as confidential unless it is marked otherwise. CI could come with a ‘Creative Commons’ style license indicating the person or business to whom it relates agrees to share the information and a firm presumption that where there is no license, the information must remain secret and undisclosed. Could this type of ‘self-regulation’ by oneself work and would the Law recognise it?