After 168 years of publication, the News of the World published its last edition as a result of what has become known as the 'phone-hacking scandal'. There have been arrests and resignations. There is a police investigation and there will be a public inquiry. The debate has now moved to Australia with calls for a statutory media watchdog and the establishment by News Ltd of an internal review of editorial expenditure to confirm it has paid only for "legitimate services".
Getting access to information for news stories is a crucial part of any journalist's work. This may involve paying for the information. But how far can a journalist go before their actions become unlawful? In the first entry of our post-News of the World series on the Minter Ellison TMT blog, we look at how Australian law would apply to the 'phone-hacking' activities of News of the World, which activities are lawful and which would be an offence, what penalties could be imposed, what remedies victims might have under of breach of privacy and breach of confidence laws. We will also look at the extent to which journalists can record conversations in order to secure newsworthy information and the application of statutory privacy laws.
The 'hacking' techniques
The activities in question, loosely described as 'hacking', concerned the unauthorised access of voicemail messages left on the private mobile phones of people who we shall refer to as 'targets'. The techniques used have been described in reports as follows:
- calling a general number available from the mobile phone service provider which enables its customers to access their voicemail account from other phones, then accessing the target's account by entering their mobile phone number and their PIN number. It would be relatively easy to find out a target's mobile number and work out their PIN, because most people leave a default PIN, such as 1234, active, or use an easily remembered PIN number such as 0000;
- getting one person to call a target's mobile phone number and engage the line while at the same time, another person also calls that number and is diverted to the phone's voicemail account. Again, access to the messages would generally be easy if the PIN is set to default or an easy number; or
- using a method that has become known as 'blagging'. This involves calling up a service provider and purporting to be the owner of a target's mobile phone account then claiming to have forgotten the PIN and convincing the customer service operator to either disclose the existing PIN or to reset it to the default, allowing the caller to then access the taget's voicemail messages in one of the ways described above.
Using these methods to gain unauthorised access to voicemail messages held by a carrier licensed in Australia could breach Australian law. Under the Telco Act it is an offence to access stored communications 'with the knowledge of neither' the recipient or the person who sent the message. A stored communication means a communication that is not passing over a telecommunications system, is held on equipment that is operated by, and is in the possession of, a carrier and cannot be accessed on that equipment, by a person who is not a party to the communication, without the assistance of an employee of the carrier.
According to the Telco Act's Explanatory Memorandum, this includes SMS messages and voicemail messages. It is also unlawful to authorise or enable this kind of access. There are some exceptions to these rules, such as police interceptions, which require a warrant. None of the exceptions apply to journalistic activities unless of course the journalist has the consent of the recipient or sender.
Importantly, it is also an offence under the Telco Act to communicate, record, make use of, or give evidence in a proceeding of information obtained in this way. This would obviously include publishing the information in any news medium.
Each of these offences is punishable by up to two years imprisonment. Civil remedies are also available to a person aggrieved by a defendant who engaged in such conduct. This may be target, whose account was accessed, the person who left the message, or even a person on behalf of whom the communication was made.
The Commonwealth Criminal Code
These accessing techniques also raise issues of identity fraud. Under the Criminal Code 1995 it is an offence to deal in 'identification information' with the intention that you, or someone else, will purport to be another person, for the purpose of committing, or facilitating the commission, of an offence. This can carry a penalty of up to five years imprisonment.
The technique of 'blagging' would probably breach this prohibition. A 'blagger' would have to use a target's identification information, such as their name and date of birth, while purporting to be that target, in order to obtain a PIN number, which then enables the blagger to commit the offence of accessing a stored communication.
It is also possible that the actual accessing of the voicemail, by entering a PIN number, could be an offence under this section of the Code. The definition of identification information includes a series of numbers or letters (or both) intended for use as a means of personal identification. A voicemail account PIN number, whether or not it is the default number, is intended to be used to identify the owner of the account. By using that PIN number to access a voicemail account, the journalist is purporting to be the owner of the account, again for the purpose of committing the offence of accessing a stored communication.
What's next?
Our next piece in this post-News of the World series will look at whether in addition to any civil remedies that might be available under the Telco Act, a target can seek remedies for unauthorised access to their voicemail through a breach of confidence or a breach of privacy claim.
Partner: David Poulton
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