6. Privacy Flashcards
Is there a right to privacy in the UK? Why/why not?
Yes – Human Rights Act 1998 gives effect to Article 8 ECHR: the right to a private and family life, home, and correspondence
Why is the right to privacy limited in the UK?
(1) It can only be directly asserted against public authorities so it is not a tort of privacy
(2) It is not an absolute right – a public authority can interfere with the Art 8 right for the protection of the rights and freedoms of others
Which case outlines that there is no tort of privacy?
Wainwright v Home Office
Why is there no tort of privacy according to Wainwright v Home Office?
It is an area which requires a detailed approach which can only be achieved by legislation, not the common law
Are there any prospects for a statutory ‘tort of privacy’? Why/why not?
No – a Joint Committee on Privacy and Injunctions stated that a statutory definition would risk becoming outdated quickly and would not allow for flexibility. They did not recommend one
If there is no tort of privacy, how can tort law protect privacy?
It can protect certain aspects of privacy, such as the peaceful enjoyment of one’s home (private nuisance) and informational privacy (MOPI)
In which case did the courts confirm the existence of a privacy-based action in tort?
Campbell v MGN (2004)
Why does the MOPI tort not offer absolute protection for private information?
The claimant’s privacy interests must give where where the defendant’s interests in freedom of expression prevail
What is the two-stage test of liability for MOPI? Which case set this out?
(1) Does the claimant have a reasonable expectation of privacy in respect of the information in question? (Art 8)
If yes, then:
(2) Does the claimant’s right to informational privacy outweigh the defendant’s interest in publishing the information in pursuit of their right to freedom of expression? (Art 10)
Campbell v MGN
How do the courts establish whether someone has a reasonable expectation of privacy? Which case set this out?
What a reasonable person of ordinary sensibilities would feel if he or she was placed in the same position as the claimant and faced with the same publicity
Murray v Express Newspapers
What must be taken into account by the courts when determining if a claimant has a reasonable expectation of privacy?
All the circumstances of the case, e.g. attributes of the claimant, nature of the activity in whcih claimant was engaged, etc.
What are some examples of information that satisfies the first stage of the MOPI test? Give the cases
Information relating to sexual life (Mosely v MGN)
Details of a medical condition and its treatment (Campbell v MGN)
Diary entries, even if circulated to a select group of people (HRH Prince of Wales v Associated Newspapers)
Knowledge of intimate information acquired as part of a friendship (McKennitt v Ash)
Fact of a police investigation into allegations of sexual abuse, prior to any charges (Richard v BBC)
In Campbell v MGN, why were the media allowed to publish details of the claimant’s drug addiction when claimants are usually entitled to a reasonable expectation of privacy with regard to this?
Claimant had previously publicly declared that she did not do drugs
The media were entitled to set the record straight if this aspect of someone’s life was previously brought into the public domain
Does information need to be true in order for someone to have a reasonable expectation that it will be kept quiet?
No, as long as it can be seen to relate to ‘private matters’ (P v Quigley)
What did Re S establish?
The starting position is that neither Art 8 nor Art 10 right has precedence over the other
When is freedom of expression more likely to prevail over the right to privacy?
Where the matter contributes to a debate of general interest, i.e. public interest
What was established in John v Associated Newspapers?
There can be no claim in MOPI regarding a photograph of an adult in public doing something ordinary
What is different about photos of adults and children in public with regard to MOPI? What cases set this precedent?
A child can have a reasonable expectation of privacy
The press cannot seek to publish pictures of children taken in public if it knows the parents would object
Murray v Express Newspapers, Weller v Associated Newspapers
What was the decision in Peck v UK? Why?
The defendant had breached the Art 8 rights of the claimant because they had showed the relevant part of the video to a greater extent than any passer-by would have seen it
Why were photos of Naomi Campbell leaving a Narcotics Anonymous meeting considered a MOPI?
She took steps to ensure she wouldn’t be seen but a newspaper photographed her from a hidden location with a zoom lens – deliberate steps to take a photo of her
What are the two remedies for MOPI?
Injunction, damages
What are the different types of injunction?
Interim injunction in place until full trial
Permanent injunction to prevent publication even after the trial
What are the two terms in which injunctions can be issued?
Anonymised injunction, where one or both of the parties has their identity anonymised
Super-injunction, where the existence of the injunction itself cannot be publicised
Which case sets the precedent that interim injunctions can still be granted against the press even though the information can be accessed online/overseas?
PJS v News Group Newspapers Ltd
