A cyber scene of crime – in everybody’s home

cybercrime-100534917-primary-idgeThis blog has covered a number of claims for damages arising out of the misuse of private information. The Mirror Group phone hacking case is one example (see my post here and the appeal decision here), and the fall-out from the hapless Home Office official who put private information about asylum-seekers on the Internet, being another – (Gideon Barth’s post on TLT here). See also below for related posts.

But this post is to give a bit of context, via the wider and scarier cyber crime which is going on all around us. It threatens the livelihoods of individuals and businesses the globe over – and has given and will undoubtedly give rise to complex spin-off litigation.

So let’s just start with the other week. On 21 October 2016, it seems nearly half the Internet was hit by a massive DDoS attack affecting a company, Dyn, which provides internet services infrastructure for a host of  websites. Twitter, Reddit, Netflix, WIRED, Spotify and the New York Times were affected. DDoS, for cyber virgins, is Distributed Denial of Service, i.e. an overloading of servers via a flood of malicious requests, in this case from tens of millions of IP addresses. No firm culprits so far, but a botnet called Mirai seems to be in the frame. It is thought that non-secure items like cars, fridges and cameras connected to the Internet (the Internet of Things) may be the conscripted foot soldiers in such attacks.

And now to the sorts of cases which have hit the headlines in this country to date.

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Phone hacking: massive privacy damages

_83144843_hackingcompGulati v. MGN Ltd [2015] EWHC 1482 (Ch), Mann J – judgment here

For some years in the early and mid 2000s, a routine form of news-gathering in the Mirror Group was phone hacking – listening to voicemails left for celebrities by their friends, and then dishing up revelations in their papers.  And this judgment amounts to a comprehensive pay-back time for the years of distress and upset sustained by those celebrities, as the ins and outs of their private lives were played out for the Mirror Group’s profit. The damages awarded well exceeded those previously payable, as justified in the tour de force of a judgment by Mann J. 

Warning – the judgment, compelling though it is, runs to 712 paragraphs. It concerns the assessment of damages in eight cases. The Mirror Group belatedly admitted liability and apologised, not before denying any wrongdoing to the Leveson inquiry. Other claims rest in the wings pending this trial. But with awards between £72,500 and £260,250, the bar has been set high by Mann J.

The claimants (with one exception) were the classic subjects of tabloid columns, namely EastEnders and Corrie stars (or those unfortunate to be married to them), the sometime air hostess girlfriend of Rio Ferdinand, Jude Law’s former wife, Sadie Frost, and, inevitably, Gazza. Seven sued because the hacking led to repeated articles about them. The eighth, Alan Yentob, Creative Director of the BBC, was hacked because of the information derived from the famous people who had left voicemails for him.

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Was it human rights wot won the phone hacking scandal?

2011 may be remembered as the year of Article 8. The public may not realise it, but the two major news stories of this year have had at their core the 8th article of the European Convention on Human Rights, the right to privacy and family life. And without this controversial law, the phone-hacking scandal may never have been exposed.

First came the super-injunctions scandal, in which the public, egged on by the popular press, became enraged at sportsmen using expensive privacy injunctions to keep details of their alleged bad behaviour out of the news. That scandal has now been replaced by a much bigger one, relating to illegal phone hacking. The affair has already led to the demise of the News of the World.

As the human rights organisation Liberty have pointed out, the newspaper was never a fan of New Labour’s Human Rights Act. Amongst other things, it fought an expensive and partially successful privacy battle against Max Mosley over claims that he slept with prostitutes in a “sick Nazi orgy“. It has always been suspected that the tabloid press’s almost universal antipathy towards the 1998 Act, which in theory at least should be popular as it protects citizens against nasty state intrusion, was inspired by the fear that the privacy rights it bolstered, despite the competing right to freedom of expression, would prevent them doing their jobs. And now, with some irony, it is a tabloid newspaper and not a public authority which may represent the 1998 Act’s most high-profile scalp.

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Police may have duty to inform victims of phone hacking

Bryant & Ors, R (on the application of) v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin) (23 May 2011) – Read judgment

The police may have a duty under article 8 of the European Convention on Human Rights (the right to privacy) to inform members of the public that their phone calls have been intercepted. 

This was only a judicial review permission hearing, which means that the full “substantive” judicial review will still have to be argued at a later date. In short, the case is the latest in the long-running News of the World phone hacking affair (see this post and this one on Inforrm’s Blog for the latest developments).

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