Human Rights- Misuse of Private Information

Question 1

Misuse of private information

Answer 1

Established by Campbell v MGM (Naomi Campbell sued Daily Mirror over stories aout her attending Narcotics Anonymous meetings)

Loosely based on breach of confidence claim, but also HRA

CoA- confirmed in Vidal-Hall v Google that misuse of private info. was a separate tort

Court uses 2 stage test:
Stage 1- Does the C have a reasonable expectation of privacy?
Stage 2- Is their right to privacy more important than the D’s right to freedom of expression?

Question 2

Stage 1

Answer 2

Does the C have a reasonable expectation of privacy?

Take a wide range of factors into account from Murray v Express Newspapers – must take into ‘all circumstances of case’:

[I] The attributes of + effect on claimant
– In Campbell, C was vulnerable, publishing wouldn’t made her less likely to continue her drug treatment
– Terry v Person Unknown = footballer Terry tried to get an injunction about his affair - injunction not granted cause he had a robust personality and wasn’t especially intrusive

[II] Nature of activity
- Distinction between private activities (privacy likely protected) vs public (likely won’t)
– Author of a Blog v Times Newspaper Limited = police officer wrote a blog under the name ‘Night Jack’ - figured out his identity + were going to publish it - blogging is a public activity - no reasonable expectation of privacy
– Mosley v News Group Newspapers = Max Mosley, Pres of FIA had been filmed at a sadomasochistic orgy and News of the World published the story - ruled people’s sex lives were “essentially their own business” + reasonable expectation of privacy with regard to sexual activity

[III] Place activity was happening
- Campbell - reasonable expectation of privacy regarding photos taken at door of place the NA meeting was held
- Some level of uncertainty – Campbell - Baroness Hales = no expectation of privacy for people going about their ordinary business in public places - doesn’t cover trivial things
– ECtHR ruling - Von Hannover v Germany = photos of Princess Caroline didn’t contribute to public debate so Article 8 protected (but ECtHR dec. persuasive not binding)
-
[IV] Nature and purpose of intrusion
- Pictures more intrusive than words
– Peck v UK and ECtHR = “serious interference” of C’s Article 8 after BBC broadcasted footage of his suicide attempt

[V] Absence of consent and whether it was known/could be implied

[VI] Circumstances in which and he purpose for which the info. came into the hands of the publisher
– McKennit v Ash = C was singer whose friend, Ash, wrote a book about her personal details - a close friendship was the reason why the C had a reasonable expectation of privacy

[VII] Information in Public Domain
- If it’s already in pub. dom., no reasonable exp. of privacy because nothing for law to protect
– Mosley v News Group Newspapers - Mr Justice Eady agreed film impacted C’s right to privacy but refused an injunction cause it had been watched so widely so no privacy left to be protected
- A group (even a large group) doesn’t equal public domain
– HRH Prince of Wales v Associated Newspapers = published journals of Prince of Wales, including him describing Chinese officials as “appalling old waxworks” - newspaper argued he sent copies to 20-70 friends - but not a big enough group
- Even if some info. is in public domain, there can be a reasonable expectation of privacy which prevents further info. on the subject being published:
–CTB v Newsgroup - Ryan Giggs - name revealed in Parl - injunction still stood in place because there was likely to be other info. that was likely to be intrusive about the affair
– PJS case - PJS had 2 young children - had a threesome with AB and CD - publishing of story would cause distress to PJS’ family - not in exceptional public interest

Question 3

Stage 2

Answer 3

Balancing privacy vs freedom of expression

Campbell - court should take justification for each right into account and use a test of proportionality - whether benefit of suppressing info > benefit of publishing it

[I] Does it contribute to a debate of general interest?
–Rio Ferdinand v MG Newspapers = story published by an affair he had - ruled genuine public interest as he had just been appointed captain of English football team and there was debate over his character and whether he was a good role model
– Axel Springer v Germany - ECtHR held there was a public interest in reports of criminal proceedings

[II] Correcting a false image/impression
– Campbell = was a public interest - she was a drug addict and often said many models suffered problems with drugs but she didn’t
– David and Victoria Beckham = failed to get an injunction preventing their nanny revealing details of their relat. as they portrayed themselves to be a happy couple but nanny suggested that impression was false

[III] Public interest and celebrities
- In past, if it didn’t contribute to a general debate / correct a misleading impression Article 8 protected.
– Mosley v News Group Newspapers = found no truth in allegations of Nazi themed orgy + it wasn’t in public interest
- But after ECtHR dec. slight shift - Von Hannover v Germany No.2 = German courts justified in refusing an injunction as the prince’s health was a matter of public interest and he was a ‘public figure’
– Spielman v Express Newspapers - Speilman obtained an injunction to prevent stories of her teenage son (an international rugby player) being published - injunction stopped as he could be deemed a public figure
- ButPJS case ruled kiss and tell stories have no public interest, regardless of how famous ind. is

[IV] Using pictures
– Von Hannover v Germany
– **Von Hannover v Germany No. 2 **

[V] Remedies
- Main = injunction
- If info. already published, could receive damages
– Vidal-Hall v Google = misuse of private info separate tort, so privacy rights can be enforced against anyone, not just public authorities
- Injunctions:
a) Interim (hold until issue tried)
b) Permanent
- Section 12 of HRA - court must take into account importance of right to freedom of expression, extent the material is already in public domain & public interest
- **S.12 **treats both rights equally
- Superinjunction = prevents publication of material + mentioning action has been taken to prevent publication
- Anonymised injunction (not widely used) - refer to randomly selected initials