Privacy Flashcards
What are the three conditions for breach of confidence action?
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
defence to breach of confidence?
only available defence is public interest
- broad defence
- public interest in knowing the information is greater than the public interest of upholding confidences
what did G Phillipson say about the development of Breach of Confidence
slowly being transformed and becoming more flexible through concepts such as good faith
what did Glidewell J say in Kaye v Robertson and at what paragraph?
para 66 - no actionable common law right of privacy
what is breach of confidence “better encapsulated as” and where was this said?
misuse of private information
- campbell v mgn 2004 at 17
what was said about the impact of the Human Rights Act 1998?
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
who first mentioned right to privacy and when?
brandeis and warren in 1890
who structured the torts of breach of privacy and how?
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
what did Hertfordshire law journal 2(2) 30-40 say?
the introduction of the HRA caused developments into privacy law in the UK beyond breach of confidence
what is article 8 in accordance with?
s 1 of the HRA 1998
What was the leading case post HRA and what happened (generally)
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
Campbell v MGN at HC, CoA, HoL?
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
what did Baroness Hale say in Campbell v MGN 2004?
using reasonable expectation of privacy test - although info was not medical records, it could jeopardise further treatment and severely impact Campbell
which case concerned public interest and what happened?
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
privacy and public authority?
under art 8 (2) there shall be no interference of this right by a public authority
what case relates to privacy and public authority? what happened?
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
inadequacy of uk law privacy protection? test?
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
von hannover (1) and (2) 2004/2012 criteria set?
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?
Murray v Big Pictures 2008
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
PJS v NGN 2016
- 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
Douglas v Hello 2001?
- entitled to commercial confidence as photos were not in public domain and thus confidential (BoC criteria)
