Privacy

Question 1

how can privacy be defined?

Answer 1

• Warren & Brandeis (1819) “the right to be let alone”

Question 2

what were the three requirements for a breach of confidence in Coco v AN Clark

Answer 2

• The information must have the ‘necessary quality of confidence about it’
• The information must have been ‘imparted in circumstances importing an obligation of confidence’
• There must be unauthorised use of the information to C’s detriment

Question 3

does the breach of confidence extend to third parties who the confident discloses the information

Answer 3

• yes

- F Gurry, Breach of Confidence

Question 4

how does Stephens v Avery extend BoC

Answer 4

• it now includes personal infomation

- No need for prior relationship

Question 4

what is the principle laid out in Spycatcher

Answer 4

• A duty of confidence could arise where there is ‘an obviously confidential document’

Question 5

what case introduce the doctrine of Misuse of private information?

Answer 5

• Campbell v MGN Ltd

Question 6

where does a duty of confidence arise in Campbell

Answer 6

• “duty of confidence” whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential’

Question 7

what is the test in Campbell that can trigger a claim?

Answer 7

• whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy

Question 8

what rights are in conflict with each other in Campbell

Answer 8

• article 8 - private life

- article 10 - freedom of expression

Question 9

what is the campbell methodology

Answer 9

1) Reasonable expectation of privacy – burden of proof is on the claimant
2) Balance between C’s privacy and D’s rights/interests (usually freedom of expression), including any public interest in receiving the information - courts remain neutral

Question 10

how is a “Reasonable expectation of privacy” asessed?

Answer 10

• if the document is obviously confidential (spycatcher)
• Lord Hope: “what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.”

Question 11

what amounts to public interest?

Answer 11

• mundane everyday activity is not private but going to a drug meeting is not an everyday activity and deserves protection

Question 12

why was there a violation of art. 8 in Von Hannover v Germany (No.1) (2004)

Answer 12

• Princess Caroline has a ‘reasonable expectation of privacy’ even in public and when going about everyday business.
• It is not entirely clear from the judgment in Von Hannover whether the violation arose due to the taking of the pictures (intrusion) or their publication (MPI)

Question 13

what factors need to be taken into account when evaluating the circumstances of the case in Murray v Express Newspapers? (6)

Answer 13

• attributes of the claimant
• the nature of the activity in which the claimant was engaged
• the place at which it was happening
• the nature and purpose of the intrusion
• the absence of consent
• whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.

Question 14

what does Murray v Express Newspaper concern

Answer 14

• third party claimants (if children of famous parents have claim for reasonable expectation of privacy)

Question 15

what were the two tests that emerged for determining whether C has a “reasonable expectation of privacy” in Murray v Express Newspaper

Answer 15

A) the “obviously private” test (nature of the information)
B) an holistic test (consideration of all relevant circumstances)
- Where A is not satisfied, the court will proceed to B.

Question 16

what case states that a claim in MPI will lie only where C has a REP in respect of information about themselves, not someone else?

Answer 16

• O v A

Question 17

what is An emerging “balancing” method in Re S? (4)

Answer 17

1) ‘Neither article has as such precedence over the other.’
2) ‘Where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.’
3) ‘The justifications for interfering with or restricting each right must be taken into account.’
4) ‘The proportionality test must be applied to each.’

Question 18

what is the considerations in Von Hannover v Germany (No 2) when establishing a balance between art. 8 and 10? (6)

Answer 18

1) Contribution to a debate of general interest – is it gossip or is it genuine public interest
2) How well known is the person concerned and what is the subject of the report? – attributes of the claimant
3) Prior conduct of the person concerned
4) Method of obtaining the information and its veracity/circumstances in which the photographs were taken – did the person know, or is it a public event where paparazzi be expected to be there
5) Content, form and consequences of the publication
6) Severity of the sanction imposed by domestic courts – margin of appreciation doctrine. Courts have discretion on the sanctions

Question 19

what did Reklos & Davourlis v Greece about violation of privacy

Answer 19

• there was a Violation of privacy even though no publication (though possibility of later publication recognised) – just taking the photo is a violation of art 8
• Art.8 has no age limit

Question 20

what is stated about public figures when considered the class of claimants?

Answer 20

• The argument that “public figures” automatically enjoy reduced privacy because there is an inherent public interest in what they do.

Question 21

what is stated about Role models when considered the class of claimants + case?

Answer 21

• The argument that certain individuals who are “role models” must accept a greater degree of scrutiny and intrusion into their private lives
• NB the courts often conflate the public figure/role model rationales
• A v B

Question 22

what is stated about Waiver of privacy when considered the class of claimants + case?

Answer 22

• The argument that certain individuals, by reason of having spoken about private issues publically in the past, have “waived” their privacy in respect of other information about themselves.
• How much effort has been made to protect ones privacy
• Duchess of Sussex v Associated Newspapers

Question 23

what did Spelman state about sport?

Answer 23

• There is no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport.”

Question 24

what does Weller v Associated Newspapers say about young people

Answer 24

• “[T]he sensitivity of children develops as they age. … An older child is likely to have a greater perception of his own privacy and his experience of an interference with it might well be more significant than for a younger child.

Question 25

what is the “k line”?

Answer 25

• The interests of K’s children could (though would not automatically) tip the balance in favour of granting the injunction

Question 26

what is the CDE line?

Answer 26

• Claimant has a wife and children simply means that there are more persons whose rights have to be taken into account
• it is “well established” that third party interests are relevant

Question 27

what are the Two lines of authority have brought third party interests to the forefront of privacy claims (which are normally applications for interim injunctions)

Answer 27

• the CDE line

- the K line