Investigatory Powers Bill — Incentive for Major News Publishers to Join an Approved Regulator — Claims of Unlawful Interception — Court Costs — 15 Nov 2016 at 15:15

The majority of MPs voted against requiring certain major news publishers, which are not members of an approved regulator, to pay the costs of any court cases in relation to claims of unlawful interception.

The rejected proposal would have given courts the freedom to make alternative, or no, awards of costs if it was judged just and equitable in all the circumstances to do so.

The rejected proposal would also have generally protected publishers which are members of an approved regulator, or those unable to reasonably become a member, from costs in such cases.

The rejected proposals would have provided an incentive for publishers to become members of an approved regulator.

MPs were considering the Investigatory Powers Bill^[1].

The motion supported by the majority of MPs in this vote was:

• That this House disagrees with the Lords amendments 15B, 15C, 338B, 339B and 339C.

The rejected amendment 15B^[2] sought to introduce a new clause titled Civil liability for certain other unlawful interceptions stating:

• (1) An interception of a communication is actionable at the suit or instance
• of—
• (a) the sender of the communication, or
• (b) the recipient, or intended recipient, of the communication,
• if conditions A to C are met.
• (2) Condition A is that the interception is carried out in the United Kingdom.
• (3) Condition B is that the communication is intercepted in the course of its transmission, by means of a public telecommunications system.
• (4) Condition C is that the interception is carried out without lawful authority.
• (5) For the meaning of “interception” and other key expressions used in this section, see sections 4 to 6.”

The rejected amendment 15C^[2] sought to introduce a new clause titled: Interception without lawful authority: awards of costs which stated:

• (1) This section applies where—
• (a) a claim is made under section (Civil liability for certain other unlawful interceptions) against a person (“the defendant“), or a claim is made for misuse of private information arising from an interception of a communication carried out before the date on which section (Civil liability for certain other unlawful interceptions) comes into force,
• (b) the defendant was a relevant publisher at the material time, and
• (c) the claim is related to the publication of news-related material.
• (2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—
• (a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or
• (b) it is just and equitable in all the circumstances of the case to award costs against the defendant.
• (3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—
• (a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or
• (b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.
• (4) This section is not to be read as limiting any power to make rules of court.
• (5) This section does not apply until such time as a body is first recognised as an approved regulator.
• (6) Subsections (1) to (3) shall only apply to a claim issued after this section comes into force.
• (7) For the purposes of this section “approved regulator”, “material time” and “news-related material” shall have the same meaning as in section 42 of the Crime and Courts Act 2013, and “relevant publisher” shall have the same meaning as in section 41 of that Act.”

The rejected amendment 338B^[2] stated:

• Page 191, line 38, after “(2)” insert “, (2A)”

Had it not been rejected this would have impacted clause 243 of the Bill titled Commencement, extent and short title adding a reference to a subsection 2A which would have been introduced by the rejected amendment 339(B) and stated:

• “(2A) Sections (Civil liability for certain other unlawful interceptions) and (Interception without lawful authority: awards of costs) come into force on the day following that on which this Act is passed.”

The rejected amendment 339C^[2] also sought to amend clause 243 of the Bill titled Commencement, extent and short title, it would have inserted the following subclause:

• “(3A) Sections (Civil liability for certain other unlawful interceptions) and (Interception without lawful authority: awards of costs) are repealed at the end of the period of six years starting with the day on which they come into force.”

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• [1] Parliament's webpage on the Investigatory Powers Bill
• [2] Amendment paper published on the 3rd of November 2016

Debate in Parliament |