A Ha! Steve Coogan Convinces Court of Appeal That Confidential Information is Intellectual Property

Many of us have suspected it for years. But it took the man behind Alan Partridge – Steve Coogan – to persuade the Court of Appeal to confirm that confidential information is indeed intellectual property.

Steve Coogan v. News Group Newspapers Ltd and Glenn Mulcaire

Case summary

The case was part of the continuing fallout from the News of the World hacking scandal. Mr Coogan (and Ms Phillips, Max Clifford’s PA, in a separate claim) had each bought proceedings for breach of confidence and misuse of private information as a result of their voicemail messages being hacked into. They each applied for an order that Mr Mulcaire (the investigator at the centre of the story) should disclose the identity of those who had instructed him to intercept the voicemail messages along with details of what was intercepted and to who the information was provided.

Mr Mulcaire objected to providing the information on the basis that he had a right not to incriminate himself; as intercepting messages is an offence under s1(1) of the Regulation of Investigatory Powers Act 2000.

The privilege against self-incrimination is based upon s72 of the Senior Courts Act 1981, which says that “a person shall not be excused… from answering any question …or complying with any order” because to do so may expose that person to criminal proceedings in “…proceedings for infringements of rights pertaining to any intellectual property…”. Intellectual property is then defined as “any patent, trade mark, copyright, design right, technical or commercial information or other intellectual property”.

It was firstly argued by Mr Mulcaire that information obtained from intercepting the voice messages was not intellectual property, as confidential information was simply not intellectual property. So it was argued it fell outside the scope of s72; as “technical or commercial information” only extended to trade secrets.

But the Court of Appeal disagreed. The Master of the Rolls came to the view that whilst “confidential information is not strictly property, it is not inappropriate to include it as an aspect of intellectual property.” So where such information was of a commercial nature, it was covered by s72. It was therefore not open to Mr Mulcaire to claim privilege.

The Master of the Rolls went further and also said that confidential information not of a commercial nature was also covered. He made the point that information in one person’s hands could be personal, but to another person, it could be commercial; the sole reason why Mr Mulcaire was intercepting personal messages was because of their potential commercial value to the News of the World. So he saw no attraction in treating confidential information differently depending on whether it was commercial information or personal information.

It was next argued that s72 did not extend to disclosure of the identity of the persons who had given the instructions or to whom information was passed. It was argued that s72 only applied to “an offence committed by or in the course of the infringement” and that as the infringement only occurred when the messages were listened to, it could only permit disclosure of what had been listened to. But it is well established in law that a further misuse of confidential information occurs when the information is passed on so it clearly extends to the persons who received it. Neither did the Court of Appeal have much difficulty deciding that the person who instructs someone to infringe is part and parcel of the act of infringement as well.

As a fallback argument, Mr Mulcaire also claimed that s72 was inconsistent with his human rights and specifically his right to a fair trial. But this was also rejected. The privilege is not an absolute right; you have to balance the various rights and it was perfectly proper to come to the view that one individual’s right to a private life should outweigh a theoretical and speculative right to a fair trial (Mr Mulcaire was not at this time being prosecuted although it is possible he could face a further prosecution in the future). This was particularly so when the criminal process builds in various safeguards to protect a Defendant.

So it was a good day in Court for Steve Coogan who has been at the forefront of the campaigns against the excesses of the press.  It was also a good day for those wanting disclosure of the full extent of who at News of the World knew what. And a good day for those of us who have long believed that confidential information was an essential aspect of intellectual property.