Eavesdropping in the UK – Is it Legal to Spy on Calls?

März 11, 2014


In the United Kingdom, spying on phone calls has come to the forefront of the privacy debate. First, there was RupertGate or MurdochGate in which reporters from News of the World were criminally prosecuted and brought before Parliament and numerous governmental bodies for their phone hacking.

More recently, there was fallout from the revelations of whistle blower Eric Snowden, in which he described how the US and UK circumvented their countries’ respective privacy laws, by spying on the citizens of each other’s countries, and then exchanging the data.

To this charge, Foreign Secretary William Hague said “Intelligence gathering in this country, by the UK, is governed by a very strong legal framework so that we get the balance right between the liberties and privacy of people and the security of the country.”

Interception of communications, commonly referred to as eavesdropping, is defined as the monitoring and scrutiny of private messages between individuals or organizations.  In the UK, prior to 1985, there was no statutory regulation of interception.  With respect to governmental surveillance, It was carried out under the Royal Prerogative, with the only oversight being the informal “judges rules”.

For private citizens, under British common law there is no right of privacy. ] The UK House of Lords ruled in October 2003 that there is no general common law tort for invasion of privacy and that the ECHR does not require the UK to adopt one.  Wainwright and another v. Home Office (UKHL 53 2003).  Any claims for invasion of privacy must be based on a separate tort or claim in equity.

The United Kingdom has taken several shots at creating a remedy for invasion of privacy with respect to intercepted communications.  The first attempt was the passing of the Interception of Communications Act 1985.  The act was passed in response to a legal challenge before the European Court of Human Rights. Malone v. The United Kingdom, Application No. 8691/79 (1984).

Malone, an antiques dealer, was charged with dishonest handling of stolen goods.  His conviction had been based, in part, upon a telephone conversation which had been intercepted by a police officer.  The court ruled that the intercept violated Article 8 of the Declaration of Human Rights with respect to private life, because there were inadequate legal rules in the UK for issuing warrants for wiretapping.

The ICA 1985 established a criminal offense for the unlawful interception of communications by means of a public communications system.   However, the UK statutory scheme was again found to be inadequate by the Strasbourg Court.  Halford v. The United Kingdom, Application No. 20605/92 (1997).

Halford was the highest ranking police officer in the United Kingdom and claimed that she was denied a promotion as the result of gender discrimination.  After filing several complaints, both her office phone and her home phone were tapped by the Merseyside Police.  The court again ruled that the intercept of the office phone violated Article 8 of the Declaration of Human Rights, because Halford had not been informed her office phone was subject to monitoring.

Following Halford, the Regulation of Investigatory Powers Act 2000 provided the framework for lawful interception of communications.  Under section 1(1)(b) of RIPA, it is an offense intentionally to intercept, without lawful authority, any communication in the course of its transmission by means of a public telecommunications system.

Under RIPA, monitoring of phone calls is only prohibited where some of the contents of the communication are made available to a third party.  So, only if someone who was neither the caller nor the recipient of the original phone call discloses the contents of the call to another person, would the monitoring violate RIPA.  Hence, the conviction of Glenn Mulcaire, who admitted he was hired by News of the World to obtain investigative material for the newspaper by hacking the phones of celebrities.

Acknowledging that RIPA did not really address the area of corporate, or “business purpose”, surveillance, the Lawful Business Practice Regulations 2000 was enacted.  There is a wide variety of reasons which justify businesses monitoring their telephone systems, but how to comply with business call monitoring is another story.

Ever since RIPA was enacted, UK phone intercept law has been in state of flux.  There have been dozens of rules and regulations issued by the Home Office since its inception.

Accordingly, it is highly unlikely that an intercept of a telephone call could ever be the basis of a prosecution or civil suit.  Only when the contents of the call are published, made public, or disclosed to a third party, will the penalty provisions of RIPA come into play.

Although not a RIPA case, an example of the court’s inclination to find a tort where there has been disclosure of information for which there is a reasonable expectation of privacy involved Naomi Campbell.   Campbell v. MGN Ltd, (UKHL 22 2004).

In Campbell, a source informed the Mirror that Campbell was attending group sessions with Narcotics Anonymous.  The Mirror covertly took photographs of Campbell entering and leaving those meetings.   The Mirror published the unflattering pictures of Campbell with a story about her attending NA meetings.  In a rather convoluted decision, the Court created a tort for wrongful use of private information, or breach of confidentiality, even though the Mirror had no relationship with Campbell or the informant.

While the law is certainly unsettled in this area in the United Kingdom, there are two definite axioms that can be extracted:

(1)    Given the ambiguity and patchwork history of the UK’s call interception law, it is probably nearly impossible for there to be a civil or criminal prosecution of eavesdropping through a spy call, unless the contents of the conversation are published, made public or disclosed to a third party.

(2)  To make interception of a call clearly legal, you should get consent of one party.  This is mentioned in RIPA with respect to governmental wiretaps.

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