Letter: Legal position over the 'Dianagate' tapes
Your support helps us to tell the story
From reproductive rights to climate change to Big Tech, The Independent is on the ground when the story is developing. Whether it's investigating the financials of Elon Musk's pro-Trump PAC or producing our latest documentary, 'The A Word', which shines a light on the American women fighting for reproductive rights, we know how important it is to parse out the facts from the messaging.
At such a critical moment in US history, we need reporters on the ground. Your donation allows us to keep sending journalists to speak to both sides of the story.
The Independent is trusted by Americans across the entire political spectrum. And unlike many other quality news outlets, we choose not to lock Americans out of our reporting and analysis with paywalls. We believe quality journalism should be available to everyone, paid for by those who can afford it.
Your support makes all the difference.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
Join our commenting forum
Join thought-provoking conversations, follow other Independent readers and see their replies
Comments