The Court of Appeal has rejected an appeal by the private investigator Glenn Mulcaire to overturn two High Court orders that seek to compel him to disclose who instructed him to hack phones.
In broad summary the Master of the Rolls: (a) interpreted the provisions of s.72 Senior Courts Act 1981 regarding crimes committed "in the course of infringement" very widely; (b) interpreted the notion of "technical and commercial information" very widely, so that it also included private information that could found an action for breach of confidence (as well as business/commercial information that could do so); (c) rejected the argument that the fraud limb should be broadly construed to include offences dishonestly committed (i.e he. restricted it to those offences in which fraud/dishonesty was necessarily inherent); and (d) rejected the Article 6 ECHR attack made on the terms of section 72 SCA, effectively holding such arguments were for any criminal trial.
The net upshot is that those advancing IP, passing off and breach of confidence claims (including privacy claims) can generally be pretty confident of negating the privilege against self-incrimination (PSI) arguments of Defendants in relation to not only statutory IP offences, but also conspiracy offences (statutory as well as common law), and the various hacking offences. Defendants will still try to identify strict liability or "no fraud/dishonesty" offences committed before or after the infringement so as to invoke PSI.
Tom de la Mare acted for the Secretary of State for Business Industry and Skills
For the full judgment on BAILII click: http://www.bailii.org/ew/cases/EWCA/Civ/2012/48.html