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If this is correct, and the tort is being repealed, then why is the government removing this civil law right, leaving the individual only with criminal law protection under what will be the new Act – which in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.

header banner image

Regular blogging at Jack of Kent is made possible by the kind sponsorship of Hammicks Legal Information Services.  

If you value this blog and its free content, please do click on this link to Hammicks and have a browse.

Please subscribe to this Blog. To get alerts for my new posts at Jack of Kent and the FT, and anywhere else, please submit your email address in the “Subscribe” box at the top of this page.