Invasion of Privacy Flashcards
Kaye v Robertson and Sport Newspapers Ltd [1991] CA
Gordon Kaye suffered serious brisk injuries as a result of a car accident. While in hospital, an editor and photographer ‘interviewed’ him and later marketed it as a scoop. The nature of the injuries meant that Kaye had no recollection of the interview.
Kate’s agent sought an injunction against the newspaper, alleging that it was an invasion of privacy. Not a tort, so had to use defamation, malicious falsehood, trespass and passing off - all but malicious falsehood failed.
Court of Appeal recognised it was a clear invasion of privacy, but nothing more could be done. English tort law had created various ‘boxes’ of liability which, if a claim does not fit into them, leaves no redress.
Douglas, Zeta-Jones and Northern & Shell plc v Hello! Ltd [2005]
The celebrity couple married in a New York hotel, and had sold the photographic rights to OK! magazine. The wedding was otherwise private, invitation-only, and guests were asked not to bring cameras. Despite security, a freelance photographer got in and covertly took photos and sold them to Hello! magazine. The couple sought and failed to achieve an interim injunction, relying on the HRA and breach of confidence.
The court found that there had been a breach of confidence, relying on the Coco definition. It said that Hello! should have realised that there had been ‘an obligation of confidence’ existed in relation to the photographs (otherwise the photographer wouldn’t have had to take them secretly).
The couple were awarded £14,500 damages for interference with the remaining right to privacy they after selling the photographic rights in the first place.
Breach of confidence, Coco definition:
- Information exists which has ‘the necessary element of confidence about it’
- The defendant could be said to be obliged to keep the information confidential; and
- ‘Unauthorised use’ of the information was made by the defendant.
Campbell v MGN [2004]
The Daily Mirror published stories relating to the fact that Naomi Campbell was seeking treatment for drug addiction. On one occasion, showed a photograph of her leaving a NA meeting as well as details of a treatment she may have.
Campbell framed her action as a breach of confidence, on the grounds that any ‘reasonable person’ would realise that details of her actual treatment and where this was taking place was clearly confidential.
A bare majority of the HoL upheld her claim - partly. Because she had previously denied having a drug problem, the publishing of the facts was only correcting an inaccurate image she had portrayed of herself.
Medical information is always a confidential matter, and so details of her treatment and the photo (showing where she may have the treatment) could not be published. Both things, if published, could have negative effects on her treatment.
Post-Campbell two-stage gets used to determine a breach of confidence or ‘misuse of private information’:
1) Did the claimant have a ‘reasonable expectation of privacy’ with regard to the information? If so,
2) Does the claimant’s interest in maintaining their right to privacy outweigh the defendant’s interest in freedom of expression?
In establishing a ‘reasonable expectation of privacy’, which is generally quite obvious, what is the secondary test if it is not so?
It must be asked whether the disclosure of the information would cause offence to a ‘person of ordinary sensibilities’ if it was about them
Loreena McKennitt v Niema Ash [2006] CA
Ash, a close friend of Canadian folk artist McKennitt, wrote a book detailing her time on tour with her. The book included information about McKennitt’s sexual relationships, an ongoing legal dispute with her business partner over some property and her emotional response to the death of her fiancé.
Ash admitted the information could only be known as a result of the close relationship between the two of them.
Injunction granted and £5,000 in damages.
Von Hannover v Germany [2004] ECtHR
Princess Caroline of Monaco alleged that media intrusions into her daily routine were infringing her rights under Articles 8 and 10. She claimed that numerous paparazzi photos of her undertaking daily activities, including some of her children, were an invasion of her right to private, home and family life.
Unsuccessful in Germany.
The ECtHR upheld her claim, holding that the key issue was whether the information published was genuinely in the ‘public interest’. When going about her daily life, she had a ‘reasonable expectation’ of privacy.
Murray v Express Newspapers plc [2008] CA
Rowling claimed on behalf of her 18-month-old son David, who has photograph taken of him in a pushchair in public using a long-lens camera. Claimed on behalf of him, seeking damages for the infringement of David’s right to privacy as well as an injunction to prevent further publication of similar images.
Failed at High Court, judge held that the law did not provide for a ‘press-free zone’ for celebrities and their children.
CoA overturned this, David had a legitimate expectation of privacy.
Theakston v MGN Ltd:
Theakston attempted to injunct MGN from publishing a story about how he visited a brothel in Mayfair, London.
Theakston argued it breached his right to privacy under Article 8 of the European Convention of Human Rights, and that the activities had taken place in private and therefore should be treated as confidential. Argued that because he was a presenter for a younger audience he should conduct himself appropriately in public.
Public interest in knowing he was there so claim denied, but in relation to photos they were likely to be of an especially intimate, personal and intrusive nature and so the right to privacy outweighed the newspapers’ right to freedom of expression.
Jagger case:
Ms Jagger brought her claim in misuse of private information and breach of confidence. Some blurred stills with “censored” stars covering the parts for which modesty had special claims were taken whilst engaging in sexual activity behind the front door area of the club.
Bell J accepted that the somewhat public place did not deny the claimant the likelihood of success in a privacy claim, given the ECHR cases of Von Hannover and Campbell v MGN. The judge considered that moral turpitude was not a factor which should prevent further dissemination of embarrassing images.
Wood v Commissioner of Police for the Metropolis
Facts: Wood was a media-coordinator for the Campaign Against Arms Trade (CAAT). He was photographed by police on the street outside an annual general meeting of a company whose subsidiary organised a trade fair for the arms industry.
Photographs were taken to help police identify potential offenders. Claimed it contravenes his article 8 right.
Held: article 8 was engaged. The mere taking of a photograph was incapable of doing so, but not knowing for what the photo was taken was a sufficient intrusion into his article 8 right. Taking of it was a legitimate aim, but retaining it for more than a few days wasn’t.
