(1) s72 was applicable in both cases and had the effect of depriving D2 from relying on PSI as a defence because the information intercepted from the voicemail messages falls within the definition of ‘intellectual property’ as contained in s72(5). The term ‘technical or commercial information’ within the definition of intellectual property meant “information which is commercial in character, rather than the fact that is has value”, and s72 covered both confidential and non-confidential commercial information (the latter by virtue of the words ‘or other intellectual property’ that were included in s72(5)).
Provided that there was evidence establishing that a significant amount of confidential information was ordinarily included in the voice messages, s72 could be invoked. Where a defendant has intercepted voicemail messages there must be a strong presumption that at least some of the information contained in the messages was confidential.
Given the nature of the messages likely to have been received on both Ms Phillips’ and Mr Coogan’s mobile telephones their claims therefore constituted ‘proceedings for infringement of rights pertaining to’ confidential information within s72(2)(a).
(2)(a) Where a person intercepts voicemail messages on the instructions of another those instructions can be said to be part of the interception itself, and therefore requiring D2 to provide information as to the identities of those third parties did not fall foul of the ‘related proceedings’ condition in s72(3). By ordering that D2 provide that information it therefore was not trespassing outside the confines of s72.
(2)(b) A finding that s72 was incompatible with Art 6 ECHR was not supported by Strasbourg jurisprudence. In any event, any argument to this effect was merely speculative at this stage; D2’s Art 6 ECHR rights would only become relevant if the information obtained was actually used in criminal proceedings against him.
(3)(a) Vos J did not err in striking out the parts of D2’s Defence. It would be perfectly possible for D2 to apply for a stay or adjournment without pleading PSI as a reason for a sparse defence, instead justifying the reason in a supporting witness statement or affidavit.
(3)(b) The Court should only impose additional safeguards where there was good reason for doing so, and here that was not the case. In addition, various judicial dicta deprecating PSI did not encourage any judicial extension of safeguards in respect of s72.