Privacy

Question 1

What are the three conditions for breach of confidence action?

Answer 1

from Coco v Clark 1969
1. info capable of being protected
2. obligation to keep information confidential
3. info is used in way that breaches confidence

Question 2

defence to breach of confidence?

Answer 2

only available defence is public interest
- broad defence
- public interest in knowing the information is greater than the public interest of upholding confidences

Question 3

what did G Phillipson say about the development of Breach of Confidence

Answer 3

slowly being transformed and becoming more flexible through concepts such as good faith

Question 4

what did Glidewell J say in Kaye v Robertson and at what paragraph?

Answer 4

para 66 - no actionable common law right of privacy

Question 5

what is breach of confidence “better encapsulated as” and where was this said?

Answer 5

misuse of private information
- campbell v mgn 2004 at 17

Question 6

what was said about the impact of the Human Rights Act 1998?

Answer 6

it was a ‘catalyst for legal change’ - harris et al, 2009 p 31
it ‘arguably changed breach of confidence to breach of privacy as courts relied on Article 8 since its introduction - U. Smartt

Question 7

who first mentioned right to privacy and when?

Answer 7

brandeis and warren in 1890

Question 8

who structured the torts of breach of privacy and how?

Answer 8

W. Prosser in 1960
1. intrusion on seclusion/private affairs
2. publication of embarrassing but true facts
3. publicity which portrays a person in a false light
4. appropriation of a person’s name/likeness

Question 9

what did Hertfordshire law journal 2(2) 30-40 say?

Answer 9

the introduction of the HRA caused developments into privacy law in the UK beyond breach of confidence

Question 10

what is article 8 in accordance with?

Answer 10

s 1 of the HRA 1998

Question 11

What was the leading case post HRA and what happened (generally)

Answer 11

Campbell v MGN 2004
FACTS: articles about model who famously said she never did drugs - caught at NA, article contained photos and details
DECISION:
- disclosure of her being an addict was in the public interest as she had publicly denied the accusation
- photos and additional details about treatment were unnecessary and violated privacy rights

Question 12

Campbell v MGN at HC, CoA, HoL?

Answer 12

HC- yes breach of confidence, balance of art 8 and 10 - despite the fact she was a celeb, the info was confidential - test for BoC = reasonable expectation of privacy
CoA - reversed decision, photos added legitimacy to claims
HoL - reversed again and upheld HC but restricted it slightly
- the public’s right to details is lower than the right to know about misleading comments

Question 13

what did Baroness Hale say in Campbell v MGN 2004?

Answer 13

using reasonable expectation of privacy test - although info was not medical records, it could jeopardise further treatment and severely impact Campbell

Question 14

which case concerned public interest and what happened?

Answer 14

A v B and C 2002
- appeal against interim injunction (allowed)
- any interference with art 10 had to be justified regardless of whether in public interest
- prior judge applied inappropriate protection to transient relationships and failed to properly consider Art 10 rights of the women involved

Question 15

privacy and public authority?

Answer 15

under art 8 (2) there shall be no interference of this right by a public authority

Question 16

what case relates to privacy and public authority? what happened?

Answer 16

peck v uk 2003
- claimed breach of art 8 due to disclosure of cctv footage by local authority
- ECtHR = yes breach! - no relevant or sufficient reason for disclosure
- art 8 applied despite P in public area because he was not a public figure or in attendance of a public event
- ECtHR accepted that incidents that happen in public can be private in nature and have a reasonable expectation of privacy

Question 17

inadequacy of uk law privacy protection? test?

Answer 17

although inadequate, can be remedied by ECHR
3 part test:
1. must be prescribed by law
2. must have legitimate aim
3. must be unnecessary and unproportionate
if yes to all then violation

Question 18

von hannover (1) and (2) 2004/2012 criteria set?

Answer 18

2004
- ECtHR = yes breach, photos taken in climate of continual harassment and context of photos (covert and no consent)
- harassment of public figures cannot be disregarded
2012
- ECtHR = no appeal allowed - photo of prince in poor health has public interest so no Art 8 violation
- set criteria for domestic courts for balancing art 8 and 10:
1. does the info contribute to debate of general interest?
2. is the person well-known/ is the subject matter?
3. prior conduct of person involved
4. content, form and consequence of publication
5. circumstances?

Question 19

Murray v Big Pictures 2008

Answer 19

HC refused injunction for M
- J Patten relied on Campbell - reasonable individual in child’s place - no intrusion as was unaware - appeal allowed
UKSC - had reasonable expectation of privacy as no photo would have been taken of him if his mum was not famous - HC did not take his age into account enough

Question 20

PJS v NGN 2016

Answer 20

• infidelity
• CoA gave injunction
• story came out abroad so injunction was lifted
• UKSC reinstated the injunction, saying CoA erred in balancing act and relied too much on art 10

Question 21

Douglas v Hello 2001?

Answer 21

• entitled to commercial confidence as photos were not in public domain and thus confidential (BoC criteria)