Privacy and misuse of private information

Question 1

The tort of breach of confidence

Answer 1

Tort which focused on the improper use of information disclosed by one person to another in the context of a relationship of confidence:

• Marriage (s. Argyll v Argyll [1967])
• Employment (s. Prince Albert v Strange (1869))

Question 2

The tort of misuse of private information

Answer 2

This is a legal action based on the art.8 right to privacy. It focuses on the nature of the information itself instead of the relationship between the claimant and the defendant.

In its decision in Campbell v Mirror Group Newspapers Ltd [2004] the House of Lords specified the circumstances in which this new cause of action will be applicable:

• Reasonable expectation of privacy which the defendant knew or ought to have known about
• No justification for publication
• Disproportionate interference with art. 8

Question 3

Reasonable expectation of privacy

Misuse of private information

Answer 3

Subjective test limited by the requirement that the expectation of the claimant be ‘reasonable’:

• Nature of the information (“information of essentially private nature”): Information about criminal proceedings (s. Sir Cliff Richard v BBC and the Chief Constable of the South Yorkshire Police [2018], Bloomberg LP v ZXC [2022]) or about sexual acts or preferences (s. McKennitt v Ash [2006], Mosley v News Group Newspapers [2008])
• Use of visual images (s. Campbell v Mirror Group Newspapers Ltd [2004], Peck v UK [2003], Mosley v News Group Newspapers [2008])
• Context in which the information was obtained (s. McKennitt v Ash [2006])
• Degree to which the relevant activities took place in public or private (distinguish Wainwright v Home Office [2003] and Peck v UK [2003])
• Capacity of the claimant to consent to public attention (for cases relating to children s. Murray v Express Newspapers [2008], s. also Weller v Associated Newspapers [2015])
• Public figure doctrine (s. Duchess of Sussex v Associated Newspapers [2021], Duke of Sussex v MGN [2023])

Question 4

Remedies

Misuse of private information

Answer 4

In an action for misuse of private information the primary remedy is damages:

• Damages for distress (s. Sir Cliff Richard v BBC and the Chief Constable of the South Yorkshire Police [2018])
• Damages for loss of reputation (s. Mosley v News Group Newspapers [2008])

Any type of interim remedy such as the grant of an injunction against the defendant to prevent or limit publication is subject to extreme scrutiny because of the potential implications for the right to freedom of expression.

This standard may be lowered if the potential consequences of publication are particularly grave (s. Cream Holdings v Banerjee [2004], PJS v NGN [2016]).