Spying on a partner: Opening a Legal Pandora’s Box?
A high-profile legal case has emerged from the breakdown of the relationship between Dubai’s ruler, Sheikh Mohammed bin Rashid Al-Maktoum and his estranged wife, Princess Haya.
Background
The High Court has heard details of phone-hacking which have emerged during custody proceedings.
A number of key findings have been revealed including an allegation against Sheikh Mohammed that he has been unlawfully “snooping” on Princess Haya wife during the dispute. It is alleged that Sheikh Mohammed authorised the use of the sophisticated spyware software, Pegasus, to hack the Princess’ phone in addition to the phones of close contacts and her lawyers.
The Pegasus software is primarily used by government agencies rather than being available for individual purposes. It can be downloaded covertly on mobile phones (and other devices) to track a person’s location, read texts and emails, listen to phone calls, record live activity, as well as access apps and photos.
NSO Group, the Israeli cyber security organisation that developed the Pegasus software has since terminated its contract with the United Arab Emirates in light of the allegations.
Legal implications
Spouses and partners sometimes engage in covert surveillance of their partner or former partner. They do so for various reasons and may believe that they have justified reasons for doing so. For example, such software is used to obtain evidence of adulterous or illegal behaviour.
However, in principle, this type of behaviour engages several legal issues and potential causes of action given the private and sensitive nature of the information contained on our mobile phones.
As well as potential criminal liabilities for unlawful interception, such as Computer Misuse offences, other legal issues arising include:
- Misuse of Private Information: Cases of misuse of private information concern “the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.”
Importantly, private information is not limited to “secrets”, but also covers an intrusion into the personal life of an individual.
- Data Protection: The UK General Data Protection Regulation (‘GDPR’) and the Data Protection Act 2018 require personal data to be obtained, held, and processed fairly and lawfully, amongst other things, and provide individuals with the right to access data being held about them.
Potential Civil Remedies
If an individual can prove that their legal rights have been infringed, which involves careful scrutiny of the facts of the case, there may be various remedies available to them including the following:
- Injunctions/Court Orders: An injunction is frequently an important remedy in privacy cases. An injunction will prevent the wrongdoer from continued use of the spyware software or the information wrongfully obtained. A Court Order for the delivery up or destruction of offending material could require the wrongdoer to provide to their victim copies of the confidential materials they have obtained via covert surveillance and/or to destroy the offending materials.
- Damages: Damages may be awarded for the upset and distress caused by the snooping.
As covert surveillance tools continue to develop and become more readily available and accessible, individuals should be aware of the threats to their privacy, their legal rights and the steps that can be taken should these rights be infringed.