SX, TXTS 'n BCKS

The News of the Word’s scoop on David Beckham’s alleged affair with Rebecca Loos has brought mobile phone technology into the limelight.

The sensational revelation of an exchange of several text messages, said to evidence an adulterous affair between the England skipper and Loos, also sparked debate concerning how the newspaper came to access to them.

The News of the Worldhave been given the details of Beckham’s texts in a traditional format: a transcript of them.

The allegations concerning Beckham were clearly defamatory. In order to justify the allegations a newspaper no doubt would call Ms Loos as its star witness. Proving the truth in these sorts of circumstances often comes down to one person’s word against another’s.

But what if neither party to an alleged affair is willing to assist? The text messages in this instance might provide useful corroborating evidence. Is there any evidential value to text messages at all? Issues also arise from the manner in which they are obtained.

Accessing the actual text message on the phone itself is one thing – the attendant information such as the number from which it was sent, the time and its content will be self evident.

However, where only transcripts of the alleged text messages are provided, this cannot be relied on with nothing more – how can they be proved to be contemporaneous notes? In either case what if it is argued that somebody else had access to the phone or that the phone was ‘hacked’ and the messages sent remotely.

It is suggested that technology is available that enables an unauthorised third party to access, download, edit and erase stored text messages (amongst other data stored on a mobile phone), including the ability to send secret instructions to mobile phones to call or to send text messages, without the owner’s knowledge (“snarfing”). Such fears have been played down by various mobile phone companies but arguments like these may be raised in future court proceedings.

The manner in which such information is obtained also raises privacy issues.

Clause 3 of the PCC Code states that everyone is entitled to respect for his or her private and family life. Journalists are also forbidden from using clandestine listening devices and intercepting private telephone conversations. There is a public interest defence.

Where a text message is provided by the sender or recipient, a breach of the Code seems unlikely.

However, where a third party provides the information, subject to any public interest defence, this will fall within the remit of Clause 3 and mere salacious gossip about a person’s private life is not in the public interest. The PCC has suggested its Code will specifically deal with how information is obtained from mobile phones and emails.

An action for breach of confidence (often stretched by judges to cover privacy complaints) may be brought. The manner in which the information is obtained is important and if a newspaper ought to know that the information is confidential it may be bound by a duty of confidence.

The nature of the relationship to be revealed is relevant to whether a Court will prevent disclosure – one night stands most likely not, but something akin to marriage and it probably would be. It is also relevant whether one of the parties to the relationship in fact wants to disclose- as with the kiss and tell stories.

There is the minefield that is the Data Protection Act. Where personal data is processed, this must be done fairly and lawfully – which often means consent is required (and consent of only one of the parties to a text exchange will not be sufficient in itself).

The journalistic exemption only provides a defence if there is a public interest in publication.

It is more difficult with what is often regarded as celebrity tittle-tattle, (although Beckham’s general presentation of his image as a devoted ‘family man’ may be sufficient reason for the press to argue that they are setting the record straight).

What is clear is that the ways in which information can be disseminated are rapidly increasing. As technology develops, the law must evolve to keep apace. It is not always easy for the press to know where the lines are drawn as technology, it seems, is always one step ahead of the law.

Monica Bhogal is a solicitor in the Media and Entertainment Department at Charles Russell.

Monica Bhogal

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