Breach Of Privacy

Question 1

Origins of the concept

Answer 1

Not novel
Institutional writers
Initially, contracts only in order to underpin obligation of confidentiality

Right to be let alone (Howard & Branden)

Question 2

Which professionals are bound by confidentiality?

Answer 2

Doctor and patient, priest and penitent, solicitor and client, banker and customer (AG v Guardian Newspapers)

Question 3

Will a preexisting relationship always mean that info is confidential?

Answer 3

Existence of mt&c is not of itself conclusive in establishing that info is confidential e.g. Husband telling his wife who won the football

Question 4

Confidentiality owed by lawyers

Answer 4

Communications between client and agent are confidential (Munro v Fraser)

But sol can be excused for disclosing when fraud / some other illegal act (Conoco Ltd v The Commercial Law Practice)

Question 5

Duty on medical professionals

Answer 5

Only if compelling reason to tell

No contractual basis because of NHS setup. Anonymisation - not breached if individuals can’t be identified from it.

Question 6

Duty on bankers

Answer 6

Not to disclose to third party unless implied / express consent, public duty to disclose (Tournier)

Question 7

Is disclosure ever necessary in the interests of public safety?

Answer 7

Protected 3rd party from death or serious injury. In some cases where grave risk to others, doesn’t matter that patient withheld consent

Tarasoff - positive duty to warn if imminent danger!

Question 8

Why add non-contractual?

Answer 8

Historically, required betrayal of some relationship which pre-existed.

But - Artificiality of distinction between info obtained through betrayal of a confidential relationship and the underhand means used by another

Potentially even higher presumption of privacy because info not freely given.

Question 9

What kind of non-contractual breaches?

Answer 9

Letters to lover (Cadell v Davies & Stewart)

Disclosure of medical treatment (Campbell v MGN)

Disclosure of sexual relations (Mosely v MGN)

Question 10

What are the constituents for an action for breach of confidence?

Answer 10

Did info have necessary quality of confidence?

Was it imparted in circumstances importing an obligation of confidence?

Was that an unauthorised use of that info to the detriment of the party communicating it?

(Coco v An Clark)

Question 11

When is an intrusion into privacy justified?

Answer 11

Info not protected if

1) entered public domain
2) trivial
3) Public interest in disclosure overrode public interest that confidences should be protected

(AG v Guardian)

Question 12

Why have we shifted from Confidentiality to Privacy?

Answer 12

Court must now consider art 8 where individual’s home and family considered.

Individual - individual but also against businesses and public authorities

Question 13

Can information ever be private but not confidential?

Answer 13

If already in public domain ie refers to conduct in a public place (Murray c Express newspapers)

Question 14

How does the English position differ?

Answer 14

1) traditionally both countries req’d prior relationship. Now seems silly not to include where info taken by surreptitious means
2) 3rd parties - AG V Guardian - if you have knowledge, then applies you also. Scotland - no clear recognition. But difficult to see where 3rd parties might escape liability but would not in England

Question 15

Media already in the public domain

Answer 15

Can exclude claim

If needs painstaking amount of research to access, not in public domain.

Private domain might be well populated (Douglas v Hello)

Even unsavoury incident on airplane (Tom Jones)

Question 16

What about useless or trivial info?

Answer 16

Again precludes chances.

Confidences in commercial context not allowed if just tittle tattle. (Coco v AN Clark)

Question 17

What about public interest in disclosure?

Answer 17

Legitimate interest in its disclosure of concerns proper admin of criminal and civil justice etc

High - national security concerns, working of gov etc

Medium - business impropriety

Low - intimate relationships, health matters, bereavement etc

Question 18

Why are spatial and functional zones of interaction important?

Answer 18

Revelations of home life regarded as intrusive

Situation of embarrassment / humiliation (Campbell v MGN) (X v BBC)

Even well known figures entitled to privacy for activities that have no bearing on their public functions (von Hannover v Germany)

Question 19

What effect does prior relationship with the media have?

Answer 19

Relevant consideration where pursuer is already well known figure.

MP’s wife had no relationship (Archer v Williams)

Question 20

Considerations when balancing art 8 and 10

Answer 20

No need for contractual relationship

Widened scope

• neither article has precedence over the other
• intense focus in comparative importance of rights is important
• justifications in interference

Question 21

What is the overall situation for privacy protection?

Answer 21

Good, but need better protection for other elements!

Question 22

Pringles v Bremner

Answer 22

Action for damages relevant where pursuer alleged wrongful entry into his house by police officers and a search of his effects without valid warrant

Question 23

Martin v McGuiness

Answer 23

Pursuer alleged that evidence inadmissible and that damages should be awarded to compensate him for his distress. Watched his home and interviewed his wife. No, there was public interest in safety under art 8(2)

Question 24

Wainwright v Home Office

Answer 24

No tort of invasion of privacy. W and her son strip searched before visiting her other son. Appealed against decision that they had suffered a form of trespass to the person. While privacy was a value underlying c/law breach of confidence, it did not apply to the case of personal privacy.

Question 25

Henderson v Chief Constable

Answer 25

Inappropriate strip death became actionable as affront to dignify and privacy of individual

Question 26

McKennit v Ash

Answer 26

Defendant published both recounting details of her friendship with C. Some details untrue. Defender tried to allege that falsity was a complete defence. CoA said that truth / falsity might be relevant in determining whether the defendant’s right to freedom of expression was engaged.
Claim for misuse of private info did not necessarily disappear if info was false.

Question 27

Campbell v MGN

Answer 27

Fashion model who had claimed publicly that she did not take drugs. Published articles discussing her drug addictions and details of therapy and photos as she left Narcotics Anonymous. Accepted that bare fact of her addiction could he published in paper but objected to accompanying photos.

Photos are worth a thousands words. Words lose confidential worth once in public area, but photos do not

Not how a reasonable person of ordinary sensibilities would have reacted if placed in same position.

Question 28

Murray v Express Newspapers

Answer 28

JK Rowlings baby. Not confidential as out in the open, in public arena but still
Private.

Question 29

AG v Guardian Newspapers

Answer 29

Book which had been prohibited from being published in England was published elsewhere. Injunction in England then could not artificially restrict readership is info already in public domain.

Question 30

Mosley v News Group

Answer 30

F1 boss has sick Nazi orgy with 5 hookers. Right to privacy outweighed by public interest in disclosure?

Law now afforded protection to info in respect of which there was a reasonably expectation of privacy.

Disclosure of consensual sexual activity is not in public interest. No proof that it was Nazi themed

Question 31

Ferdinand v MGN

Answer 31

F had wild reputation previously but calmed down. Then paper published report that he’d had an affair which continued after F was engaged. Screenshots of texts and photos of them together.
Held- info protected by art 8. Texts esp worthy of protection when used in combo with other items

Question 32

Von Hannover v Germany

Answer 32

Germany breached art 8 by failing to provide adequate remedies for Princess after press continually published photos of her shopping, at beach club etc. balance struck between right to respect for private life and freedom of expression was unfair. Not only secluded spaces, public too.

Question 33

Archer v Williams

Answer 33

Injunction to prevent publication of her diaries and damages against her former secretary. Not public figure in her own right but came into public eye following prosecution on public charges. Right to protect confidentiality of her private life clearly outweighed her secretary’s right to freedom of expression

Question 34

X v BBC

Answer 34

Pursuer was a teenager whose consent to being filmed was compromised by her age, poor literacy and state of intoxication.

Question 35

What range of interests are protected?

Answer 35

Informational
Territorial
Personal

Question 36

Is there a tort / delict of breach of privacy?

Answer 36

Territorial - see Pringle v Bremner & Martin v McGuiness. Recognised in Scotland under art 8, but not separate right.
Lord Bonomy - just because no specific right has been recognised, doesn’t mean it can’t be recognised!!
No cases since this, so no definitive answer.
Privacy of the person. Wainwright - ECHR, recognised right but not in HoL. Not a separate tort. But Henderson v Chief Constable acknowledged that this was a right.

Difference between Scotland and England

English - lots of different torticles. Developed by precedent and don’t like creating new things. Not based on rights. Generally more likely to be receptive to idea of a right to privacy.