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Privacy and Private Investigators: A Right Royal Conundrum31st March 2021 Media Law
It's now almost a decade since a public inquiry led by Lord Justice Leveson was launched by the then Prime Minister David Cameron into "improper conduct" by the media.
The investigation followed the convictions of the now-defunct News of the World's former royal correspondent and a private investigator for 'phone hacking.
Even though it examined links between reporters, politicians, police and civil servants, it was the revelations of how certain titles and private detectives had repeatedly obtained private information on celebrities and individuals not in the public eye which caught the attention.
The scale of the breaches was astonishing. One estimate by the Metropolitan Police in July 2012 identified almost 4,800 potential victims of 'phone hacking by an investigator working on behalf of the News of the World alone.
It has also led to a continuing series of lawsuits involving those whose private details were obtained, some of which resulted in news stories. I was part of the team working at JMW on claims brought by many of those men and women.
Given the passage of time and the scrapping of the intended second stage of the Leveson inquiry in 2018, it might have been tempting to regard such malpractice by sections of the media as having been corrected.
However, all that changed with the admission in the last few weeks by an American who was paid by The Sun newspaper to produce private information about the Duchess of Sussex soon after she started dating Prince Harry.
That he was commissioned by the publication in 2016 - five years after Lord Leveson began his inquiry - underlined how the problem had not really gone away at all.
The 'paper professed that its request had been "legitimate" and confined to the kind of information which would not have breached privacy laws.
It's interesting, of course, that this latest development emerged with Prince Harry still involved in litigation against both The Sun's publisher, News Group Newspapers, and the former publisher of the Daily Mirror over allegations of 'phone hacking.
The use of private investigators by the media attracted huge amounts of attention. However, it arguably obscured the use of private investigators elsewhere in society and also the wider issues regarding the security of the digital data which we all generate on a daily basis.
After all, just months after Lord Leveson published his inquiry report, the Information Commissioner's Office (ICO) began its own investigation into the use of private investigators by a number of blue chip companies.
It was prompted by jail terms handed down to private detectives found guilty of "blagging" or obtaining private information by deception.
Investigators, it emerged, had persuaded banks, building societies and phone companies to provide details for the benefit of "private companies, solicitors and individuals".
The Information Commissioner, Elizabeth Denham, has stressed that the "illegal trade in personal information is not only a criminal offence but a serious erosion of the privacy rights of UK citizens".
That, in my opinion, is the very point.
The kind of data breaches suffered by royals and celebrities are not merely confined to those who make the front pages of our daily newspapers.
Illegal and unjustified accessing of personal information - whether carried out for or by media or major companies - is hugely intrusive and damaging.
So much information is now held digitally that keeping it secure presents a challenge, albeit one which organisations have a legal responsibility to rise to.
It's something recognised not just by the "rogue" private investigators identified by the ICO but by criminals too, as shown by our work on behalf of a growing number of victims of SIM card fraud.
Ensuring that investigators keep to material which is solely in the public domain is not just a task for newsdesks but the authorities as well.
Every failure to do so may not make the headlines but arguably has more significance for British households than tabloid tales of courting royals.
JMW has acted for victims of rogue private investigators. If you would like to discuss a case with one of our legal experts in confidence, please call or email us.