Logos And No-Gos: Personal Or Commercial?

The Supreme Court, in Philips v Mulcaire [2012] UKSC 28, rules on the scope of privilege against self-incrimination.

Glenn Mulcaire has remained at the forefront of the "phone-hacking" scandal and last month lost his appeal to the Supreme Court in relation to the interception of client voicemail messages left on the mobile phone of Nicola Phillips, PA to the PR consultant Max Clifford.

The Supreme Court dismissed Mr Mulcaire's appeal from the Court of Appeal and held that he could not rely on the common law privilege against self-incrimination as a defence to an application by Ms Phillips for an order requiring Mr Mulcaire to disclose who instructed him to intercept the voice messages and the nature of the interception.

Lord Walker delivered the judgment, with which the four other members of the Supreme Court concurred. The key issue addressed related to section 72(2)(a) of the Senior Courts Act 1981 (the 1981 Act) which provides a derogation from the privilege against self-incrimination for civil "proceedings for infringement of rights pertaining to any intellectual property..." and Lord Walker examined the meaning of "intellectual property" in this context.

PRIVILEGE AGAINST SELF-INCRIMINATION

Lord Walker explained that the 1981 Act is just one of numerous statutory provisions in which Parliament has thought it right to restrict privilege against self-incrimination in order to avoid the injustice of victims being deprived of an effective civil remedy. However, he made it clear that the 1981 Act was not introduced as part of any "wider legislative scheme". The 1981 Act was enacted in light of the House of Lords finding (in Rank Film Distributors Ltd v Video Information Centre [1982] AC 280) that "Anton Piller" orders, now known as search orders, could not be made in an infringement of copyright case (relating to copied video cassettes) because of the defendant's potential exposure to a charge of conspiracy to defraud.

"INTELLECTUAL PROPERTY"

As to the meaning of "intellectual property" within the context of section 72(2)(a) of the 1981 Act, Lord Walker first looked to the various definitions of the phrase and noted that there is no universal definition and that therefore Parliament had adopted a variety of definitions for different situations. Lord Walker explained that while there is no particular "potency" (where a definition may give words a meaning different from their own meaning) about the expression "intellectual property" and there...