Who owns your voicemails? Phone-hacking Steve Coogan and Andy Gray

News of the World and private investigator Glenn Mulcaire are alleged to have intercepted the mobile-phone voicemails of football commentator Andrew Gray and comedian Steve Coogan. Civil proceedings have begun and the Met are considering whether to bring criminal proceedings.

Mulcaire wanted to rely on the privilege against self-incrimination in the civil proceedings – refusing to disclose information that had the potential to incriminate him in criminal proceedings. However, s. 72 of the Senior Courts Act 1981 provides that the privilege of self-incrimination does not apply in proceedings concerning the infringement of intellectual property rights. So are the voicemails intellectual property or not?

On Friday Mr Justice Vos held in [2011] EWHC 349 (Ch) that the definition of ‘intellectual property’ in the Senior Courts Act included any technical or commercial information that can be protected as such by action and therefore did include the claimants’ allegedly intercepted voicemail messages. Consequently Mulcaire was not excused by the privilege against self-incrimination from answering questions in the civil proceedings.

It is expected that the defendants will appeal as they have done in the parallel Nicola Phillips proceedings.

Could the claimants simply have relied on the argument that Mulcaire had in any case infringed copyright in sound recordings by recording and transcribing the voicemails? Copyright in sound recordings is owned by their ‘producer’, who is ‘the person by whom the arrangements necessary for the making of the sound recording are undertaken’. Would this be Steve Coogan and Andrew Gray – or would it be Vodafone?