Week 23: Personality Rights & Reputation, and Bodily Integrity Flashcards
What is the exclusion to the general rule that solicitors may not and must not share confidential information about their clients?
When is concerns a crime the accused intends to commit.
Coco v AN Clark (Engineers) Ltd
- That the information was confidential
- That the circumstances of the disclosure inpose an obligation of confidence
- That there was unauthorised use of the information by the defendant to the detriment of the plaintiff
Attorney-General v Guardian Newspaper Ltd (no. 2) [1990] 1 AC 109 – ‘The spy catcher Case’
Established the three limiting principles of confidentiality.
What are the three limiting principles of confidentiality?
- Must be confidential i.e. not in the public domain
- the duty of confidence applies only to useful information i.e. not trivia etc.
- Confidentiality can be outweighed by some other countervailing public interest
What is the condition for an actionable breach of confidence to arise?
Must be a duty of confidence owed to the wronged party
HRH Prince of Wales v Associated Newspapers (No. 3) [2008] Ch 57
Misuse of Private Information.
Why is the use of the term ‘confidential’ disputed in HRH Prince of Wales v Associated Newspapers (No. 3) [2008] Ch 57 ?
It doesn’t encapsulate matters of peoples private lives .
Art. 8 of the ECHR
- Everyone has the right to respect for his private and family life, jis home and his correspondence.
- There shall be no interference by a public authority wit hthe excersises of this right except such as in accordance with the law and is necessary as in a democratic society in the interests of national security, public safety, or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others
(Right to privacy)
Art 10 of the ECHR
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television, or cinema enterprises.
- The exercises of these freedoms since it carries with it duties and responsibility, may be subject to such formalities conditions, restriction or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity and public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the justiciary.
(Freedom of expression)
Campbell v MGN Ltd
Requires that in cases of the misuse of information that there be a balance between privacy conferred by Art 8 and the freedom of expression conferred by Art 10.
Ferdinand v MGN Ltd [2011] EWHC 254 (QB)
Misuse of private information.
McKennitt v Ash [2006] EWCA Civ 1714
- Publication of private information by a former friend
- Declared that the plaintiff had a reasonable expectation to privacy
What are the four key features of McKennitt v Ash [2006] EWCA Civ 1714 ?
- Neither Art 8 nor Art 10 have precedence over one another.
- Where the articles are in conflict with each other, then there is a specific comparative focus on the rights being claimed by the parties
- The justifications for interfering with each right must be taken into account
- The proportionality test must be applied.
Axel Springer AG v Germany [2012] EMLR 15
- Photos of an actor being arrested
- Declared that the photos interfered with right to privacy
- Misuse of private information
Murray v Express Newspapers plc [2009] Ch 481
- Art 8 right outweighed Art 10 right
- Misuse of private information
- The Duchess of Sussex v Assosiated Newspapers Ltd [2021] EWHC 273 (Ch)
- BC v Chief Constable of Scotland 2021 SC 265
- Stoute v New Group Newspapers [2023] EWCA Civ 523
- Misuse of private information examples
Bloomberg LP (Appellant) v ZXC [2022] UKSC 5
- A person under investigation for a crime has a reasonable expectation to privacy
- Misuse of private information in circumstances where there is a criminal investigation ongoing
Define defamation as outlined under s1 (4) (a) of the Defamation and Malicious Publication (Scotland) Act 2021.
A statement about a person is defamatory if it causes harm to the perosns reputation (that is, if it tends to lower the persons reputation in the estimation of ordinary persons)
With reference to defamation, define a statement.
Statement means words, pictures, visual images, gestures by any other method of signifying meaning
Is innuendo included in defamation?
Yes
What are the two conditions to bring an action for defamatory publications?
a. A has published the statement to a person other than B, and
b. The publication of the statement has caused (or is likely to cause) serious harm to the reputation of B
Sobrinho v impresa Publishing SA [2016] EWHC 66 (QB)
- Gives the word ‘serious’ its ordinary meaning
- Defamation
- Lachaux v Independent print Ltd & Anor [2019] UKSC 27\
- This case clarifies the burden of proof for claimants, emphasising that they must show evidence of serious harm to their reputation caused by defamatory statements.
- The ruling acknowledges that serious harm can be inferred from the inherent tendency of the words used in the publications to cause damage to the claimant’s reputation.
What three remarks are made about the term ‘serious’ in relation to defamation in Cookie & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB).
- Showing serious distress or injury to feelings is not enough.
- ‘Serious harm’ is a higher threshold than ‘substantial harm’
- In some cases serious harm may be plain from the words of the publication and no further evidence is required to prove serious harm.
