Hacking, raspberry jam and the power of PSI: on the deeper meaning of IP

Does it really matter what "intellectual property" is? After all, if we have specific types of IP such as patents, trade marks, copyright and designs, is not the existence of this emotive and woolly blanket term surely an irrelevance? No -- it can be important to know precisely what its parameters are. This is very much the case where the words "intellectual property" are employed as statutory terminology in a common law jurisdiction that has spent much of the past 400 years interpreting words to death. In this context, the IPKat s delighted to host this piece from Alan McKenna (Associate Lecturer at the University Kent, where this Kat began his involvement back in 1973). In it, Alan juxtaposes some still-smouldering embers of last month's British case law with a cookie that may soon be in the oven in the United States.

The recent decision of the Court of Appeal (England and Wales) in the conjoined phone hacking cases of (i) Coogan and (ii) Phillips v News Group Newspapers and Mulcaire [2012] EWCA Civ 48 has already been commented on by fellow blogs IPKat (here) and NIPC Law (here).  Now Joshua Brustein's New York Times article on start-up companies seeking to place a value on an individual’s data provides a further dimension to the issue of the nature of personal information that was relevant in Coogan and Phillips.

In Coogan and Phillips the Court of Appeal specifically considered the extent and effect of the Senior Courts Act 1981, s.72, which prevents use of the common law privilege against self-incrimination (PSI)  in certain types of action. Comedian Steve Coogan, and Nicole Phillips, a former assistant to the publicist Max Clifford, claimed their voice mails had been hacked by Glenn Mulcaire. The two sued for breach of confidence and misuse of personal information, seeking orders that Mulcaire identify both those who had instructed him to intercept the messages and those to whom he supplied their content. Mulcaire said no: such disclosures would incriminate him under section 1(1) of the Regulation of Investigatory Powers Act 2000, which makes intercepting voice messages illegal, something of which Mulcaire had already been previously convicted.

If the hacked information obtained from the voice mails was "intellectual property", it would come within the scope of section 72, and this would prevent Mulcaire arguing PSI. Section 72 states,

‘(1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person...to proceedings for a related offence...: 

(a)   From answering any question put to that person in the first-mentioned proceedings; or 

(b)   From complying with any order made to those proceedings. 

(2) Subsection (1) applies to the following civil proceedings in the High Court, namely:         

(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;..... 

(5) In this section: “intellectual property” means any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property.”

In deciding that section 72 applied so as to remove the defence of PSI, Lord Neuberger made it clear that the only basis by which intercepted information would constitute intellectual property as defined in s.72(5), was if it came within the words "technical or commercial information or other intellectual property" (para. 22).  What did these words mean? Lord Neuberger explained that technical information meant information of a technical nature and, similarly commercial information meant information that was commercial in character, rather than information that may have a value to someone; further, the expression was unlikely to have been intended to cover all ‘confidential information’, as otherwise that would have been explicitly stated (para. 32). 

Hacking the phones was never a problem
for Merpel, but she was never much good
at sticking the phones back together
again sfterwards ...

The defendants contended that confidential information was not intellectual property, and could not come within the concept of ‘commercial information or other intellectual property.’ The crucial question was whether the expression ‘technical and commercial information’ could extend simply to information, on the basis that information is not regarded as intellectual property at all (para. 33). Lord Neuberger felt the prevailing current view was that, while confidential information was not strictly property, it was not inappropriate to include it as an aspect of intellectual property: given the normal meaning of commercial information, the drafters of section 72 had intended confidential information of a commercial nature to be included in the definition of intellectual property (para. 39). He next had to decide whether non-commercial, in particular personal information, which would be protected on the grounds of confidentiality, could also come within the ambit of intellectual property as defined under section 72(5). It did, he said, on the basis of the use of the words ‘or other intellectual property’ in section 72 (para. 45). He felt it was hard to resist this conclusion: if confidential commercial information was seen to come within the ambit of intellectual property, so too must non-commercial confidential information as other intellectual property (para. 46). Why did the drafters adopt such an approach? It may have been that, at the time of drafting, the law of confidential information was routinely involved in commercial and technical contexts, but rarely in personal and non-commercial relationships (para. 47). 

Despite pointing out a possible concern as regards the fact that Nicola Phillips's voice mail messages would contain primarily confidential information relating to her clients, Lord Neuberger still found little difficulty in concluding that a significant amount of both Coogan’s and Phillips’s voice mail messages contained commercial and/or confidential information which would fall under section 72 -- though it might be possible for a specific defendant to argue that the information obtained was not confidential. If this were so, section 72 could not be invoked (para’s 56-59). 

The fact that callers leave voice mail messages points to the strong likelihood in many instances that the voice mail relates to senders' commercial or confidential information, rather than to information pertaining to the recipient of the message. But aside from that, what if in Coogan and Phillips the voice mail messages were purely (for example) about their love of raspberry jam? This would neither be commercial nor confidential information sufficient to activate section 72, and would surely be seen as purely trivial personal information. But in the digital era can it be said that any information is truly trivial? One of the current giants of the online world, Facebook, has a business model based on personal data, and being able to attract advertisers because of the personal information with which it has been provided. An advertiser representing a jam company would be most interested in an individual’s love of jam. For the advertiser this would not be trivial personal information, but how might the lover of jam see the information? 

Joshua Brustein's article in the New York Times discusses how new start-up companies are looking to put a price on personal data, with one idea being a personal data locker under the control of the individual to whom that data belongs, that will act as a single repository of information about that person -- and by which businesses would pay that person for access to their data locker. If these data locker plans become reality, it could be argued that any personal information was merely trivial information and. in this light, all data might have a value and as such be of a confidential nature. Might it thus be seen as intellectual property for the purposes of provisions such as section 72?"

How to make raspberry jam here
Raspberry jam: something to sing about here
The power of PSI here