The claim by London's Metropolitan Police that the interception of messages is only illegal when the message has not been listened to, read or collected by the recipient has been challenged by a privacy law expert.
The Met's Assistant Commissioner John Yates told MPs that the police force's legal advice was that it was not against the law to hack into messages that someone has already received. Data protection law expert Rosemary Jay has challenged this interpretation of the law.
Yates was responding to MPs' questions about the Met's investigation into the reportedly large number of people whose mobile phone messages may have been listened to by News of the World journalists or private detectives working for the paper.
Yates told The Commons Home Affairs Select Committee that though the Regulation of Investigatory Powers Act (RIPA) made it illegal to intercept any private message sent over a telecoms network, the Met's advice had been that this actually only applied to as-yet unreceived messages.
"Hacking is defined in a very prescriptive way by the Regulation of Investigatory Powers Act and it’s very, very prescriptive and it’s very difficult to prove," he told the Committee. "We’ve said that before and I think probably people in this room are aware of that. It is very, very difficult to prove. There are very few offences that we are able to actually prove that have been hacked. That is, intercepting the voicemail prior to the owner of that voicemail intercepting it him or herself."
Section 2(2) of RIPA says that interception takes place "only if [a person] ... [makes] some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication".
Rosemary Jay, a data protection and privacy law expert at Pinsent Masons, the law firm behind OUT-LAW.COM, recognised that this could mean that only unread or unheard messages are protected, but only if other sections of the law are ignored.
She pointed out that section 2(7) of the Act extends the meaning of section 2(2). It says:
"For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it."
"If you go to section 2(7) of RIPA it is clear that accessing a message when it is stored is still interception," said Jay.
"It says the law applies to messages stored 'in a manner that enables the intended recipient to collect it or otherwise to have access to it," she said. "So if you keep it on system to have access in future then that communication has been transmitted and is being stored in a manner that enables the intended recipient have access to it."
"Just focusing on subsection 2 misses out fact that subsection 7 says that stored messages are covered," said Jay.
The Information Commissioner's Office (ICO) has published guidance on the monitoring of employees at work which also says that RIPA's definition of unlawful interception "includes access to e-mails before they have been opened by the intended recipient, but does not include access to stored records of e-mails that have been received and opened".
Jay said that the Met and the ICO's interpretations of RIPA are not only inconsistent with the wording of the section, but also with the UK's obligations under the European Convention on Human Rights (the Convention).
"The Human Rights Act said that laws should be read in the light of rights under the Convention," said Jay. "Article 8 of the Convention gives the right to privacy of correspondence . If you read subsection 2 as meaning that once you have read your email or listened to your voicemail anybody can read it or listen and it is not interception, how is that protecting the right to the privacy of correspondence?"
Jay also said that the UK has an obligation under the Privacy and Electronic Communications Directive to protect the confidentiality of the content of communications transmitted over public telecoms networks through the law.
"If we say that once a stored message has been read it is no longer an interception, how are we complying with [the Directive]?" said Jay.
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