Misuse of Private Information

Question 1

First appeared in…

Answer 1

Campbell v MGN (2004)

Question 2

Campbell v MGN (2004)

Answer 2

Photographed leaving an NA meeting, also published details of her treatment regime.
She had previously denied taking drugs.
Brought a claim for breach of confidence and was awarded damaged for the publishing medical information (the treatment regime).

NOTE: not a standard breach of confidence claim.

Question 3

Key points of the Campbell case

Answer 3

The information in question was not in the public domain (Coco stage 1), but MISINFORMATION was (that she denied taking drugs)

She was in a public space when photos were taken (so debatable whether it was sufficiently confidential).

Was there a legitimate public interest in the information?

With the HRA now in force, are courts required to fashion a new doctrine to comply with Art 8? (horizontal effect)

Question 4

Lord Nicholls in Campbell

Answer 4

Arts 8 and 10 are in competition, but “neither has precedence over the other”.

The tort of breach of confidence is “better encapsulated now as misuse of private information”

“This tort, however labelled, affords respect for one aspect of an individual’s privacy. That is the value underlying this cause of action”

“An individual’s privacy can be invaded in ways NOT involving publication of private information. Strip searches are an example.”

Question 5

So, the Campbell MPI methodology:

Answer 5

1) Reasonable expectation of privacy
2) ‘Ultimate balancing test’ (between C’s privacy (Art 8) and D’s rights (Art 10), including any public information in receiving the information.

Question 6

Reasonable expectation of privacy

Answer 6

The relevant information cannot be deemed ‘obviously private’ if the person to whom it relates cannot reasonably expect their privacy to be respected (Campbell v MGN)

This is a test of the reasonable person in the same position as C with the same public profile.

Hale in Campbell says if she was just going out to buy milk, there wouldn’t be a claim as there is nothing private about that information.

Question 7

Von Hannover v Germany (No. 1)

Answer 7

Photos of Princess Caroline and her family going about everyday activities in public. Having failed in Germany, she successfully brings a claim to ECtHR for Art 8 violation.

She had a reasonable expectation of privacy even in public when going about everyday business due to the “zone of interaction”.
- That’s not what Hale said in Campbell!

Question 8

Criticism of Von Hannover

Answer 8

Phillipson (2007): The HoL in Campbell had just developed the common law in line with Art 8, only to have Strasbourg ‘move the goalposts’.

Kay (2005): There are very few grievances that cannot fit this description.

Question 9

Refining the reasonable expectation method

Answer 9

Murray v Express Newspapers (JK Rowling’s baby)

Prioritising Campbell over Von Hannover

Murray can have a reasonable expectation of privacy distinct from his parents’, and that he can have it in a public place.

Reasonable expectation test must take account of all circumstances including;

• attributes of the claimant
• nature of activity
• the place
• nature and purpose of the intrusion
• absence of consent
• the effect of publication on the claimant

NOTE: consideration given to the fact the parents had tried to shelter their baby from publicity.
Contrast to others who might choose to publicise photos to promote their own interests.

Question 10

So, test in Murray v Express Newspapers

Answer 10

Two tests for determining reasonable expectation of privacy:

1) The ‘obviously private’ test (nature of information) (Campbell v MGN test)
2) An holistic test (consideration of all relevant circumstances)

Where the 1st test is not satisfied, use the 2nd.

Question 11

What about a claimant who wants to stop information relating to someone else coming out?

Answer 11

A claim for MPI will only succeed where the claimant has a reasonable expectation of privacy in respect to information about THEMSELVES, not someone else.
- O v A (2014)

In O v A, an MPI claim was dismissed as the information did not concern the claimant’s private life, but his father’s.

Courts concerned that if the case succeeded, it would open the floodgates to claims outside of family.

Does this conflict with Gulati v MGN?

Question 12

Gulati v MGN (2015)

Answer 12

Phone hacking into voicemails of celebrities.
Information was on the people calling the claimants.
Aren’t the claimants suing in respect to information about someone else?
- If not, this would surely be a pure intrusion case?

The information obtained was not published. Is the tort narrowing to deal with pure intrusions?

Record levels of damages (six-figures)

Question 13

Criticism of Gelati v MGN

Answer 13

Moreham (2015): Believes that the case had expanded the tort to pure intrusions.

HOWEVER:

• only a HC case, does’t bind its self
• The only point actually litigated was the measure of damages. The paper already conceded misuse of private information.

Question 14

Ultimate balancing test

Answer 14

As MPI came off the back of HRA, there is emphasis on balancing Arts 8 and 10.

Re S (2005) per Lord Steyn:

1) Neither article has precedence over the other
2) Where 8 and 10 are in conflict, you need an ‘intense focus’ on the comparative importance of each
3) The statutory justifications for interfering in the right must be taken into account (Art 8(2), Art 10(2))
4) The proportionality test must be applied to each

Question 15

Proportionality test

Answer 15

ECHR proportionality is different to EU proportionality (Lord Reed in R v Legal Services Board).

Only the following (Lord Reed in Bank Mellat (2013)) would be relevant to MPI claim (others are covered in Steyn’s test):

• Whether the impact of infringement is proportionate to the likely benefit of the measure.

Question 16

Mosley v NGN (2008)

Answer 16

Nazi orgy.
Claim of breach of confidence and MPI.

D says Mosley had no reasonable expectation of privacy, and even if he did, his Art 8 rights were outweighed by Art 10. The public had a right to know.

Eady J rejects this argument:

• Uses the Campbell methodology and Re S balancing test.
• Holds that Mosley had a reasonable expectation of privacy relating to his sexual activities.
• Recovers £60,000
• Notes the “distress and indignity”

Question 17

Von Hannover v Germany (No.2)

Answer 17

Laid down criteria for national courts to follow when looking at balance between Arts 8 and 10:

• general interest
• how well known the claimant is
• prior conduct
• consequences of publication
• proportionality

NOTE: this is very similar to the criteria in Murray v Express Newspapers. Particularly ‘prior conduct’ which relates to how Murray’s parents did not publish their own pictures of baby when he was born.