Letter: Legal position over the 'Dianagate' tapes

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The Independent Online
Sir: I read with interest Adam Sage's report regarding the legal implications of the so-called 'Dianagate' tapes ('Confusion over recording law', 26 August). He says that the law under the Interception of Communications Act 1985 is unclear and implies that there is no other remedy to prevent the publication of such intimate conversations.

This is not entirely true; the common-law remedy of breach of confidence would allow either party to the conversation to apply for an injunction to prevent publication and to claim damages against the individual or individuals publishing the private telephone conversation. In 1984, the Court of Appeal restrained the Daily Mirror from publishing the private telephone conversations of a well-known jockey. It was accepted in that case that the interceptor could be sued either for breach of confidence or for breach of statutory duty, as there was clearly also illegal telephone tapping.

It has been reported that the Prince of Wales has already made use of the law of breach of confidence to obtain an ex parte injunction to prevent publication of tape recordings of telephone conversations with the Princess of Wales before their marriage.

Similarly, under the Copyright, Designs and Patents Act 1988, there is now copyright in the spoken word, if it is recorded. Either party to the taped telephone conversation, therefore, would have a right of action to sue for unauthorised publication of their spoken words. Further, because of the 'moral rights' provisions in that Act, both parties to the conversation might be able to sue for derogatory treatment of their work if the editing of the conversation amounted to distortion or mutilation of the conversation.

Either of the above remedies would have provided a means to apply for an injunction prior to publication and presently give rise to a claim for damages by either of the offended parties. But - and this is a big but - in order to bring the action in civil law, the plaintiff would have to identify him or herself as one of the speakers in the conversation, and accept that this is a recording of an actual telephone conversation which took place. In those circumstances, therefore, it seems extremely unlikely that any such actions will be brought.

Yours faithfully,

SUSAN ASLAN

Partner, Media Group

D. J. Freeman

London, EC4

26 August

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