Phone Hacking as an Actionable Breach of Privacy

N. A. Moreham, Victoria University of Wellington Faculty of Law, is publishing Liability for Listening: Why Phone Hacking Is an Actionable Breach of Privacy in volume 8 of the Journal of Media Law (2015). Here is the abstract. Here is the abstract.

The fallout from the phone hacking scandal which has engulfed two of the United Kingdom’s major newspaper companies is well-known to anyone with an interest in media law. But until recently, many of the legal issues arising from the hacking – including the juridical basis for liability for listening to private conversations – had not been tested. This article explores the significance of the acceptance, in the recent English High Court decision Gulati v MGN Ltd, that phone hacking itself is an actionable wrong. It begins by explaining how the judgment moves the privacy tort beyond its traditional focus on the disclosure of private information. It then explains how breach of confidence – particularly the Court of Appeal’s decision in Tchenguiz v Imerman – provides a possible juridical bases for that extension. The article goes on to argue though that Mann J’s judgment in Gulati does more than just extend breach of confidence principles into the privacy context. It also recognises that there is more to privacy than the dissemination, or indeed the acquisition, of private information; that privacy can also be breached by watching, listening to, or physically encroaching on a person against his or her wishes. By recognising these physical privacy interests, Gulati represents a conceptual sea-change in English law and, the article will argue, can be seen to be ushering in a new tort based on intrusion into physical privacy interests.

Download the article from SSRN at the link.