Privacy

Question 1

Kaye v Robertson

Answer 1

Traditional position in English law is that there is no right to privacy, and so no tort for breach of privacy

Question 2

Article 8 ECHR

Answer 2

Guarantees that individuals have a right to private and family life under the ECHR. This was an important development on the English law of privacy after the HRA incorporated Art.8 into English law

Question 3

Campbell v MGN

Answer 3

Seminal case on the development of English privacy law in tort. HL held by a 3-2 majority that C could claim for MISUSE OF PRIVATE INFORMATION. Two stages of the claim:

1) Reasonable expectation of privacy for C - OJBECTIVE
2) Court considers countervailing factors that weigh against C’s right of expectation here

Question 4

Murray v Express Newspapers

Answer 4

C can still have a reasonable expectation of privacy in a public place. Also, it does not matter that C is a child and is too young to understand the concept of privacy - they still have a reasonable expectation of privacy

Question 5

Countervailing Factors

Answer 5

• Art 10 ECHR
• Public interest
• Revelation of criminality
• Role models
• Setting the record straight

Question 6

Campbell v MGN - public interest

Answer 6

If the breach of C’s reasonable expectation of privacy is on a matter of high public interest, then this is more likely to justify the misuse of private information. Lady Hale explained that there is a scale for matters of public interest - more important matters e.g. about politicians are more likely to justify the breach, than e.g. footballer gossip

Question 7

A v B

Answer 7

Court interpreted public interest differently to Lady Hale in Campbell - a flourishing and diverse press is in the public interest, therefore this strongly weighs against C’s reasonable expectation of privacy

Question 8

Campbell v MGN - Criminality

Answer 8

Where the invasion of privacy reveals information about C’s criminal activity, this also may justify the breach of C’s reasonable expectation of privacy. But it does not in itself justify it - revealing class A drug use was NOT sufficient in Campbell, which potentially shows a high threshold for this to apply

Question 9

Ferdinand v MGN

Answer 9

Role models in the public eye have a lower reasonable expectation of privacy - so where they are a role model it is more likely that the invasion of privacy will have been justified

Question 10

Spelman v Express Newspapers

Answer 10

Where the invasion of privacy relates to an aspect of C’s life which is publicly scrutinised already, they have a much lower reasonable expectation of privacy

Question 11

McLaren v News Group Newspapers

Answer 11

A previously held position that made C a role model still continues with them after they have left the position - so McLaren still had a lower reasonable expectation of privacy after leaving job as England manager

Question 12

K v News Group Newspapers

Answer 12

The court MUST consider the surrounding factors of C’s private life when determining whether the invasion of privacy was justified, especially if C has young children who are likely to be adversely affected by the publication

Question 13

Mosley v News Group Newspapers

Answer 13

Court has to take into account balancing different factors when awarding damages, so e.g. Art.10 ECHR on freedom of expression needs to be considered when awarding damages (this would lower the amount awarded otherwise). Also, exemplary damages are NOT available for invasion of privacy claims. Thirdly, English law does NOT require D to notify C of the story in advance.

Question 14

Von Hannover v Germany (ECtHR)

Answer 14

ECtHR set out five relevant factors for domestic courts to consider when balancing rights under Articles 8 and 10:

1) Whether the info contributes to a debate of general interest
2) Notoriety of the person concerned
3) Prior conduct of person
4) Content, form and consequences of publication
5) Circumstances in which the info was acquired
- -> Use this first in countervailing factors for balance between Art.8 and Art.10 rights!

Question 15

Weller v Associated Newspapers

Answer 15

Court held that children have a reasonable expectation of privacy, even if they are only babies. Shows how much the courts are willing to protect the rights of children in privacy - esp. in public etc.
Court also applied Von Hannover factors and fell in favour of C’s reasonable expectation of privacy - publication not for matter of public interest etc.

Question 16

Vidal-Hall v Google

Answer 16

Court CONFIRMED that the tort introduced and developed since Campbell is misuse of private information - new tort under English law, which has developed since the introduction of the HRA 1998. Misuse of private information is a new tort, distinct from breach of confidence

Question 17

PJS v News Group Newspapers

Answer 17

CA granted an interim injunction for misuse of private information against widely-known story involving gay celebrity couple. Court gave weight to the fact that C’s children would be adversely affected by the publication, which shows how willing the courts are to protect children in privacy cases.
Secondly, CA emphasised the principle of there being a public interest in setting the record straight - so need to look carefully at what image C has presented of themselves, and if this is false then there is a strong countervailing factor in justifying the invasion. D does however, need to set the record straight in a ‘MATERIAL RESPECT’

Question 18

PJS v News Group Newspapers (2016)

Answer 18

Another interesting point arising from the litigation - CA after first judgment, then reversed it and held that it would not award an interim injunction where it would not be effective (as the story was widely known online). But the SC reversed this and upheld the interim injunction - shows strength of protecting children particularly. Balance seems to be swinging towards protecting privacy more under Art.8

Question 19

Cream Holdings v Butterworth

Answer 19

Test for courts awarding interim injunctions for invasions of privacy is whether the claim is more likely to succeed than not. But the courts takes quite a flexible approach in this regard, so a court can take a more relaxed approach e.g. if the circumstances make that appropriate

Question 20

CTB v News Group Newspapers

Answer 20

Court awarded a super injunction preventing the Sun from publishing a story about Ryan Giggs’s affair, despite the fact that the information was already being circulated and discussed online. Eady J revealed interesting point that the purpose of courts awarding interim injunctions is NOT just to prevent the story being revealed, but also to prevent C and their family from suffering further intrusion and harassment - shows courts have a number of reasons for awarding interim injunctions.