Where is the Tort? Something seems to be missing in the Investigatory Powers Bill

2nd March 2016

Here is an interesting omission from the Investigatory Powers Bill published yesterday.

The current legislation – the Regulation of Investigatory Powers Act 2000 – provides, at section 1(3), a tort for unlawful interference (emphasis added):

Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either—

(a) an interception of that communication in the course of its transmission by means of that private system; or

(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system

This provision means a person can sue another person for unlawful interception, rather than just rely on the government to prosecute.  It was, in this way, a directly enforceable privacy right.  (It was a tort used, I understand, in phone and computer hacking claims.)

But the Bill does not (seem to) have this tortuous protection for individuals, even though Part 1 of the Bill is supposedly protecting privacy. (If it somewhere else in the vast Bill, I cannot find it.  Please correct me if I am wrong.)

If this is correct, and the tort is being repealed, then why is the government removing this civil law right, leaving the individual only with criminal law protection under what will be the new Act – which in turn needs the prior consent of the Director of Public Prosecutions?

I have just noticed the omission (it was also missing from the earlier draft Bill). There may be a good explanation. Let’s see.  I have asked the Home Office if they can tell us.

But there is no point adding “Privacy” to the title of Part 1 of the Bill if the government is also taking the directly enforceable tort from the statute book.

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10 thoughts on “Where is the Tort? Something seems to be missing in the Investigatory Powers Bill”

  1. Was this the basis under which the News of the World hacking victims used? Does its absence seem to mean that similar victims would not be able to sue in future?

    P.S. Very pleased with your sponsorship news. Keep up the good work

  2. Might the omission be related to the fact that section 1(3) of RIPA related only to “the use of a private telecommunication system”?

    By “private telecommunications system” is meant a comms network set up and operated by a company or a university, for example, and which is connected to the public network – see s2(1).

    Under s1(1), any interception of (private) communications originating on the public network is a criminal offence.

  3. QC
    So my ‘phone provider Sky using a BT landline box, both privately owned, can give permission retrospectively, to the government to intercept my private conversations without the need to apply for a court issued warrant.
    That being the case, does the same apply to a telephone booth anywhere on a street or in a public owned building as you have described?

    1. Susan

      That is not my understanding of RIPA. Look at section 2(1) and sections 3 and 4 again.

      Your ‘private’ phone at home, or a telephone box somewhere, both connected to a BT landline are part of a “public telecommunications service” [s2(1)].

      Interception of communications on a public telecommunications service in the UK generally requires a warrant [s3 and s4].

      A “private telecommunications system” is not as you characterise it. It is “private” because it is not part of a service “offered or provided to, or
      to a substantial section of, the public” [s2(1)].

      Thus the internal telephone system and the internal computer network provided for use by employees of a law firm, for example, are private telecommunications systems because they are not part of a telecommunications service provided to the public. Ditto for universities because their internal telecommunications systems are provided only for the use of students and staff, not for the public.

      Section 3(3) provides for interception without a warrant by the operator of a private telecommunications system in certain circumstances.

      1. Thank you David, I appreciate it.

        I have received a reply, I thought you’d like to see it:

        >>”Thank you for your email on the 3rd March regarding the Investigatory Powers Bill.

        I am sending your letter to the Minister responsible for this issue and I will ensure that you receive a copy of the response.

        You may also like to see the Written Ministerial Statement on the Investigatory Powers Bill from the Home Secretary, Theresa May MP.

        http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm160301/wmstext/160301m0001.htm#16030131000175“>>

        I shall keep,you informed!

        Thanks again for all your work on this.

        David

        1. Hi there,

          I have received a reply from the Rt. Hon. John Hayes MP, Minister of State for Security, as follows …

          >>”Dear Sir / Madam,

          The Investigatory Powers Bill will transform the law relating to the use and oversight of Investigatory powers. It will strengthen safeguards and introduce world-leading oversight arrangements.

          The Bill responds to the recommendations of the three independent reviews by David Anderson QC, the Independent Reviewer of Terrorism Legislation; Parliament’s Intelligence and Security Committee; and a panel convened by the
          Royal United Services Institute. Collectively the three reviews proposed important changes to the way these powers are overseen and recommended the introduction of consistent safeguards and greater openness. These· proposals provided the basis for the legislation. The Bill does three key things:

          • First, it brings together all of the powers already available to law enforcement and the security and intelligence agencies to obtain communications and data-about communications. It makes these powers – and the safeguards that apply to them – clear and understandable.
          • Second, the Bill radically overhauls the way these powers are authorised and overseen. It introduces a ‘double-lock’ for the most intrusive warrants, including interception and.all of the bulk capabilities, so that these cannot come into force until they have been approved by a judge. And it creates a
          powerful new Investigatory Powers Commissioner to oversee how these powers are used
          • Third, it ensures powers are fit for the digital age. The Bill makes a new provision for the retention of internet connection records in order for law enforcement to identify the communications service to which a device has connected. This will restore capabilities that have been lost as a result of changes in the way people communicate.

          To provide greater clarity, we have refined technical definitions and have published additional supporting material to explain how the powers in the Bill will be used and why they are needed. This includes an operational case for bulk
          powers setting out in more detail than ever before why the agencies need these powers, examples of how they are used, and the safeguards that will govern their use under the Bill.
          The privacy safeguards are also stronger and clearer. The Bill incorporates additional protections for journalists, removing a key exemption for the security and intelligence agencies when seeking to identify journalists’ sources. And it incorporates statutory protections for lawyers.

          He also raises the issue of the civil tort which exists in section 1 (3) of the Regulation of Investigatory Powers Act 2000 (RIPA). Section 1 (3) of RIPA can only be used in very narrow circumstances where an individual has the right to control the use or operation of a private telecommunications system and intercepts a communications, in the course of its transmission without lawful authority. Although it 1s not clear from his email which cases he is referring to, and we are not in a position to give advice on particular cases, it is unlikely that section 1(3) of RIPA would apply because the individuals are unlikely to have had the right to control the use or operation of a private telecommunications system.

          The circumstances in which section 1 (3) of RIPA might apply would be where a company with its own private telecommunications system (for example an internal phone or email system), were to intercept an employee’s communication(s) without lawful authority. Section 3 of RIPA sets out the conduct which would constitute lawful authority but it includes interception with the consent of both the
          sender and intended recipient of the communication or with the consent of either the sender’ or intended recipient and a directed surveillance authorisation under Part 2 of RIPA.
          In light of the limited circumstances in which section 1 (3) applies and given we are not aware of it ever being used, and the other protections available for personal information and /or private communications, it was not considered necessary to include this provision in the Bill.
          However, this issue was raised during committee stage for the Investigatory Powers Bill on 12 April and the Government committed to look again at this issue.”<<

          I would be interested in your thoughts on this reply, and whether you feel it has address the issues you raised. I am not a lawyer, but it seems a bit weasel-worded to me.

          Thanks again for all your work on this.

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