Phone-hacking is not a hanging offence

In February Donald Trelford, the respected former editor of the Observer, wrote in the Independent that the phone-hacking saga was a case of "dog eats dog gone barking-mad".

In his view, the agenda was driven by a combination of MPs and celebrities bent on revenge against the tabloid press, greedy lawyers and the "anti-Rupert Murdoch faction".  The fuss about phone-hacking was "obsessive, hysterical and opportunistic".

Since Trelford's article, News International has admitted certain instances of voicemail interception, which may be thought to leave Trelford with a spot of egg on his face.  But Trelford's observations retain some force: much of the recent discussion has been characterised by exaggeration, vindictiveness and self-interest.  Yes, intercepting voicemails is a crime and it's an invasion of personal privacy, but it's not the most serious crime and nor in most cases is it even at the more serious end of the scale of possible privacy infringements.

One of the more extreme contributions has been by the Labour MP Tom Watson, a member of the House of Commons Culture, Media and Sport Committee.  On the Labour Uncut blog he lays into the Murdoch empire - and indeed the Murdoch family - with unrestrained abandon.  The phone-hacking affair has "pulverised careers, relationships and lives"; Murdoch's operation is about to "sink in shame" and "judgment day is round the corner"; News International's approach to "a saga of mass criminality is one of dumb insolence"; people have "had their lives turned inside out", suffering "depression, sleepless nights and fear"; they've "lost friends and loved ones" and contemplated suicide.   Watson expresses the hope that "those bullies are getting a flavour of the misery they have casually meted out to people over many years".

Henry Porter has said the phone-hacking affair is "one of the most serious post-second world war scandals to affect British public life" and expressed the view that it is "hard to imagine a more dangerous breach of trust by a public corporation".  A prominent London media lawyer has said that phone-hacking was "endemic on Fleet Street" with "just about every news organisation" being involved "at one level or another".  Charlotte Harris, a lawyer representing a number of claimants, has said that up to 7,000 people may have had their phones hacked by the News of the World.

Lawyers are "outraged" on behalf of their clients.  One lawyer's outrage has sent him spinning into a vortex of mixed metaphors.  Rod Dadak, a solicitor said to be representing "potential claimants", is quoted by Reuters saying:

This is Murdoch's Watergate because the cat is out of the bag. Two or three people have taken the rap but the powers that be must have known or turned a blind eye to what was going on. ... It's a black hole.

Today, the lawyer who represented Max Mosley, Dominic Crossley, has called for phone-hacking claimants to be awarded exemplary damages (i.e. damages of a punitive and non-compensatory nature) to reflect News International's "shocking" behaviour and to deter them from doing it again.  He notes that News International's parent company News Corporation, has a turnover of US$33 billion.  Against that figure, he suggests only eye-watering awards of damages will have any impact on the News Corp "beast".   Mark Lewis, the lawyer who claims to have "devised" phone-hacking claims, is indeed seeking "huge" damages for his client Mary Ellen Field, a former confidante of the model Elle McPherson who says she lost her job, reputation and health in consequence of phone-hacking by the News of the World.

Steady on, chaps.  Phone-hacking's bad, but there's a lot of worse stuff going on.  Can it really be right for claimants to expect damages of hundreds of thousands of pounds for the indignity of a tabloid hack listening to their voicemail messages?

As Dominic Crossley concedes, damages in privacy cases in the UK have been nowhere near six figures.  Until Eady J awarded Max Mosley £60,000, they hadn't even reached five figures, though a few cases had been reported in which settlements involved the payment of sums in the region of £30,000 to £40,000.  In Max Mosley's case Eady J said:

It has to be recognised that no amount of damages can fully compensate the Claimant for the damage done. He is hardly exaggerating when he says that his life was ruined. What can be achieved by a monetary award in the circumstances is limited. Any award must be proportionate and avoid the appearance of arbitrariness. I have come to the conclusion that the right award, taking all these considerations into account, is £60,000.

Every case is different, but is it really likely that any of the victims of phone-hacking will be able to say their lives were ruined?  Lord Prescott, Sienna Miller and Steve Coogan, to take three not particularly random examples, might be thought to lack those features that would normally define those whose lives had been ruined.  Max Clifford, who settled his claim against the News of the World some time ago, displays cheerful resilience in the face of his ordeal.

The News of the World does appear to have valued Mr Clifford's claim (and that of Gordon Taylor, head of the Professional Footballers' Association) at a surprisingly high level.  We do not know the reasons why they decided to pay as much as they did and it seems not unreasonable to suppose that the confidentiality clauses apparently contained in the settlement agreements may have been an important factor.  Moreover, News International's own statement, in referring to a compensation fund, will have done little to dampen claimants' expectations of a big pay day.  But it nonetheless seems unlikely that if the courts have to decide what compensation should be paid to victims of phone hacking, they will award anything like the sums the News of the World seems to have agreed to pay Clifford and Taylor (this may not, of course, be a concern for some of the claimants, who apparently just want an apology).  Instead, the courts will take a close look at all the circumstances of each case and make a reasonable and proportionate award.  It is quite possible that some claimants who are able to demonstrate real harm and distress will receive payouts even greater than Max Mosley, but it is equally possible that other claimants won't get anywhere close to that sort of figure.  It may be worth remembering that if you sue for personal injury, £60,000 is roughly the figure you get for the loss of an arm.  Six figure damages are reserved for brain damage and quadriplegia.  Do we really think phone hacking is on the same scale?

See further section 3.9 of The Privacy Law Handbook

Donald Trelford's article in the Independent