Restricting the role of privilege against self-incrimination

The phone hacking saga rumbles on. Amid the furore, the Court of Appeal has decided that Glenn Mulcaire, the private investigator at the epicentre of this media maelstrom, cannot rely on the privilege against self-incrimination (Coogan v News Group Newspapers Ltd [2012] EWCA Civ 48).

Privilege against self-incrimination (PSI) protects a person from being compelled to produce documentation or provide information that might incriminate him in criminal proceedings, or otherwise expose him to a penalty. PSI is not, however, an absolute right, and is subject to several statutory exceptions.

Section 72 of the Senior Courts Act 1981 (SCA) removes PSI in civil cases in the High Court regarding infringement of 'rights pertaining to any intellectual property'. Intellectual property includes any 'technical or commercial information or other intellectual property' (section 72(5)).

In Coogan, the claimant sought an order requiring Mulcaire to provide information identifying the individuals who instructed him to intercept his phone messages and the nature of the interception itself. Intercepting voice messages being an offence under the Regulatory of Investigatory Powers Act 2000, Mulcaire asserted PSI on the basis that providing this information would incriminate him. The Court of Appeal upheld the claimant's claim that information obtained by phone tapping constituted intellectual property such that Mulcaire could not rely on PSI.

Lord Neuberger concluded that 'as a matter of both principle and practice', non-commercial confidential information fell within the section 72(5) definition of 'technical and commercial information' because of the words 'or other intellectual property' that followed the expression. He observed that it would be surprising if you could rely on PSI in a breach of confidence claim relating to personal information, but not in an otherwise identical claim relating to commercial information. Equally, the same information could be commercial in one person's hands and ?personal in another's. It could not be right (and was not the draftsman's intention) that section 72 might or might not apply depending on how a claim was pleaded.

Defining confidential information

In Coogan it did not matter that all of the intercepted messages were not confidential, as long as some of them were. It was Lord Neuberger's view that if you can prove that the intercepted voice messages would ordinarily contain a significant amount of ?confidential information, section 72 will normally apply and PSI will be lost. The court did not define a 'significant amount', save to say that it meant 'more than insignificant'. In fact, it held that even though there may be numerically fewer confidential messages, this would be outweighed by the greater importance of the confidential messages.

The key question is how confidential information can be defined with any real precision. There will presumably be some information which to an outsider would seem innocuous or trivial but may be vital commercial or confidential information to its owner

Wide implications

The broader interpretation of intellectual property endorsed by the Court of Appeal should be borne in mind by those drafting contractual definitions. In particular, any reference to 'other intellectual property' may ?encompass confidential information even if this is not expressly stated and, as such, could be a trap for the unwary.

Outside the sphere of phone hacking litigation, Coogan has wider implications for ?businesses whose commercial or technical confidential information has been misused. Those responsible for infringing intellectual property rights may be forced to answer uncomfortable questions in this respect without the protection of PSI. Alternatively, defendants will have to assert that they committed offences involving no dishonest or fraudulent conduct either before or after the infringement to still be able to rely on PSI.

Following the Court of Appeal's broad interpretation of section 72, it seems that while the umbrella of intellectual property has become broader, conversely, PSI will surely come to have a more circumscribed role in intellectual property disputes in the future.

Coogan will doubtless be relied on by other phone hacking victims. However, the principles laid down by the Court of Appeal will also have significant consequences for those bringing actions for breach of confidence or conspiracy, as the opportunity for defendants to assert PSI to justify their refusal to provide information relating to their wrongdoing has been curbed.

The Supreme Court has given Mulcaire leave to appeal. It remains to be seen whether the Supreme Court subscribes to the same broad interpretation of intellectual property and endorses Lord Neuberger's view that PSI has 'had its day'.