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  That is why, for example, “libel chill” had the impact it did: there were things which would not be published, whatever the public interest.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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