The law and culture of phone hacking

Ignorance of the law is no excuse, as the old maxim says.

Nonetheless, there is something troubling about the spate of phone “hacking” which allegedly occurred in the first decade of this century. (Yes, I know the alleged interceptions of voicemail were not hacking in a precise technological sense, but bear with me.)


Newspaper offices are notoriously risk averse when it comes to the law.  That is why, for example, “libel chill” had the impact it did: there were things which would not be published, whatever the public interest.  The possible legal exposure was too much.  And even if an experienced editor would want to take a “robust” view, the in-house lawyers are there to urge due caution.


So what happened?

Why did any alleged phone hacking take place in this environment of compliance and risk avoidance?


Part of the answer was perhaps that the areas of law which dealt with phone hacking – namely the Regulation of Investigatory Powers Act and the Computer Misuse Act – were simply not well known to newspaper editors and lawyers steeped in the old media laws of libel and copyright.  As technology changed, the applicable laws changed as well, but that was not realised until far too late.

But part of the answer may also be  that it did not occur to anyone involved that it could even be a breach of the criminal law.  So, with no apparent law to comply with, only culture and ethics would act as any restraint on accessing the voicemails of others, or instructing private detectives to do so.

In practice, culture and ethics provided no barrier at all.


Phone hacking was probably never, in essence, a problem of illegality but one of culture.

There was this great new way of getting stories, and there seemed no compelling reason not to exploit it.

And so people did.

Ignorance of the law may never be an excuse, but sometimes it can also explain certain things.




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7 thoughts on “The law and culture of phone hacking”

  1. I would just like to add that you mentioned …

    “spate of phone ‘hacking’ which allegedly occurred in the first decade of this century”

    is allegedly incorrect..

    Almost all of us think it was going on in the last decade of the last century….allegedly…the 1990’s

    Still waiting ‘patiently’ for Hackgate Part 3 from your good self.

    Keep up the excellent work. You are indeed a great man.

    Steven Nott
    Leveson Witness 6th Dec 2011

  2. I think it’s maybe somewhat generous to view it as an entire field of experienced media lawyers, admittedly with a particular focus on libel and IP, looking at reporters dialling into other people’s voicemails to report what they found and saying “I can’t imagine any potential issues with that”.

  3. Fascinating reflection – thank you for posting. The case is often made that phone hacking fell outside the scope of internal or external regulation but this provides another way of thinking about it. A question I’m interested in is how the legal treatment of a complaint or story affects the ‘ethical’ approach (and if such a separation can be made).

  4. Experienced media lawyers DID understand the Regulation. Indeed, there is at least one case of a lawyer telling a reporter to “find it out another way”, though subsequent actions of both lawyer and reporter ultimately led to dismissals. Information and advice exchanged between lawyer and client (the editor) is privileged and protected. Ultimately it is the editor’s decision whether to publish, however the story was obtained and with knowledge of the risks involved as should have been outlined to him/her by the lawyer. It is afterwards that the lawyer takes over in either defending the complaint or settling out of court. There are numerous cases where the complaint has been settled, not because of the merits of the complaint but merely because the cost of litigation is too high and the parent company – or the insurers – see settlement as the cheaper option: think of Jeffrey Archer and Robert Maxwell, to name but two. Unfortunately, the accountants hold too much sway. It takes a brave company board to back the case for truth, and there are not many of them around these days.

  5. What I find much more worrying is the appearance of collusion between the police and newspaper to prevent and suppress a proper investigation and the impression that the newspaper made significant attempts to suppress evidence. It is very far from clear that the investigation has even attempted to follow through the organisation to those who truely instigated or authorised these actions. Itis at least plausible that the very highest management in News International may have been aware and involved in key decisions but no serious effort has been made to uncover the truth of this.

    There is at least the appearance of a fear to take on the very highest level of major media companies.

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