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Misuse of Private information 2.1 THE ABSENCE OF A GENERAL TORT OF PRIVACY In 1890, two Americans, Samuel D. Warren and Louis D. Brandeis, published a seminal article in the Harvard Law Review entitled ‘The Right to Privacy’ (1890) 4 Harv. LR 193 The authors, relying principally on English case law, contended that underlying breach of copyright in respect of unpublished personal writing such as letters and diaries, breach of confidence and contractual terms of confidentiality implied by the courts was a more general principle of privacy or, using the words of Judge Cooley, a right to be let alone. They advocated that the courts extend this principle to protect personal appearance, sayings, acts and personal relations against intrusion by the press and photographers and other forms of invasion of privacy. The article proved hugely influential in the United States. Subsequent decades saw the development of various torts of privacy by the American courts. In contrast, there was to be no such comparable development in the United Kingdom over the same period. The establishment of a legal right to privacy or tort of privacy was considered and rejected by: Younger (chair), Report of the Committee on Privacy (1972) Cmnd 5012 — rejecting a general right to privacy (ch.23) Calcutt (chair), Report of the Committee on Privacy and Related Matters (1990) Cm 1102 — rejecting a statutory tort of infringement of privacy (ch.12)

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The newspaper industry, following the recommendations of the Calcutt Committee, established a Press Complaints Committee with its own a Code of Practice to deal with complaints about invasion of privacy by the press and other matters. Some pieces of legislation were enacted at various times by the Government and Parliament to deal with specific matters of privacy such as data protection. Various criminal offences were also created. However, in 1990, a hundred years after Warren and Brandeis had published their article, Lord Justice Glidewell was still able to observe in Kaye v Robertson [1991] F.S.R. 62 at 66 that:

“It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy.” However, Lord Justice Sedley in Douglas v Hello! Ltd [2001] QB 967 at [125] held that the claimants in that case had:

“a powerfully arguable case that… [they] have a right of privacy which English law will today recognise and, where appropriate, protect” The opinion of Lord Hoffmann in Wainwright v Home Office [2004] 2 AC 406 must be remembered namely that THERE IS NOT A TORT OF INVASION OF PRIVACY NOR, IN HIS VIEW, HAS THERE BEEN. (You are strongly recommended to read his opinion as to his reasons why.) Lord Hoffmann insisted that Lord Justice Sedley had not been advocating the creation of a high-level principle of invasion of privacy but had merely been making a plea for the extension and possibly renaming of breach of confidence. Note: Wainwright concerned strip searches of two individuals and did not involve the disclosure of information. The events also took place before the Human Rights Act came into force although the claimants still sought to rely on the Act. This meant historically the victim of an invasion of privacy who wished to seek a legal remedy in respect of matters which were not covered by legislation having to utilise existing torts or other causes of action that could prove to be ill-fitted or ill-suited to his or her particular complaint. These included:     

Trespass to land as seen in Bernstein v Skyviews & General Ltd [1978] QB 479 Private nuisance Malicious falsehood as seen in Kaye v Robertson [1991] F.S.R. 62 Defamation The equitable doctrine of breach of confidence

The last cause of action, while not being a tort, was historically seen as the most effective means of protecting privacy. It was said that:

“[I]n the great majority of situations where the protection of privacy was justified, an action for breach of confidence would provide the necessary protection …. A duty of confidence would arise whenever the party subject to the duty was in a situation where he either knew or ought to know that the other party could reasonably expect his privacy to be protected. The range of situations in which protection can be provided is therefore, extensive.” - Per Lord Woolf CJ in A v B plc (a company) [2002] E.M.L.R. 371 at 382 As will be discussed below, it is the modern development of this equitable doctrine which has in turn driven the law of tort to develop a form of protection for private information.

2.2 THE IMPACT OF THE ENACTMENT OF THE HUMAN RIGHTS ACT 1998 The Human Rights Act was enacted in 1998 and came into force in October 2000. It incorporated rights from the European Convention on Human Rights into domestic law. These included Article 8 (right to respect for private life) as well as Article 10 (freedom of expression). Under the Act, convention rights are enforced by two methods: i)

Legislation must be read and given effect, in so far as it is possible to do so, in a way which is compatible with the Convention rights (s.3(1)). If primary legislation cannot be so interpreted, the court may make a Declaration of Incompatibility (s.4(2)) ii) A public authority must not act in a way which is incompatible with Convention rights (s.6(1)) unless primary legislation prevents it from doing so (s.6(2)) obligations on private individuals or organisations such as newspapers to act compatibly with Convention Rights. Nevertheless, the courts have held that the Act can be used to enforce Convention Rights in legal proceedings against such private individuals and organisations even where no legislation is involved. The rationale for this was explained by Dame Butler-Sloss P in Venables v News Group Newspapers Ltd [2001] Fam 430, [24]-[27] in the following terms:    

A court is a public authority (s.6(3)) and so must itself act compatibly with Convention Rights. It must also take into account jurisprudence of the ECtHR (s.2) which itself imposes positive obligations on national courts to protect the rights of the individual under Article 8. As a result, domestic courts must have regard to Convention Rights in private law cases However, this does not mean that there is now a freestanding cause of action based directly on Convention Rights Instead, the courts are required not to act incompatibly with Convention Rights when adjudicating upon existing common law causes of action

2.2.1 BREACH OF CONFIDENCE AND ARTICLES 8 AND 10 The effect of the approach outlined in Venables v News Group Newspapers Ltd [2001] Fam 430 is that the courts were required to adjudicate in breach of confidence cases in a way that was not incompatible with Articles 8 and 10. As Lord Woolf CJ explained A v B plc [2002] EWCA Civ 337; [2003] QB 195 at [4]:

“These articles have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court’s approach to the issues which the application raises has been modified because, under section 6 of the 1998 Act, the court, as a public authority, is required not to act "in a way which is incompatible with a convention right". The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence.” This view was later endorsed in the House of Lords by Lord Nicholls in [2004] UKHL 22; [2004] 2 AC 457 at [17], who put it much more succinctly:

“The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence.”

2.3 RECHRISTENING BREACH OF CONFIDENCE: NOW A TORT OF MISUSE OF PRIVATE INFORMATION Earlier in his opinion, at [14], Lord Nicholls went further than the other Law Lords and suggested that an action for breach of confidence had:

“shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognised clearly in the judgment of Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 , 281. Now the law imposes a "duty of confidence" whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase "duty of confidence" and the description of the information as "confidential" is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called "confidential". The essence of the tort is better encapsulated now as misuse of private information.” [Emphasis added] While Lord Nicholls dissented in the case, this was on a narrow point relating to the facts of the case and this statement laid the foundations for the action to be recognised as a distinct tort. The Court of Appeal has confirmed the action as a tort, determining that it is an independent civil wrong which has no equitable characteristics – Google Inc. v Vidal-Hall & Others [2015] EWCA Civ 311. Breach of confidence still exists as an independent action and the need for a confidential relationship remains an essential requirement. It is important to appreciate when you would use the tortious action over the equitable action. The tortious action only applies to non-commercial, personal information – Douglas v Hello! Ltd (No.3) [2007] UKHL 21; [2008] 2 AC 1. It would appear a trite point, but the Court of Appeal has held that the information in question must relate to the claimant and not a third party – OLA v MLA and STL [2014] EWCA Civ 1277.

2.3.1 THE REQUIREMENTS OF THE TORT OF MISUSE OF PRIVATE INFORMATION The basic requirements of the tort of misuse of private information have been described by Lord Justice Buxton in McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73, [11] in the following terms:

“First, is the information private in the sense that it is in principle protected by article 8? If "no", that is the end of the case. If "yes", the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10?” 2.3.1.1 Is the Information Private? One of the difficulties that the courts in England and Wales faced at the time that the Human Rights Act came into force was that there was scarcely any case law from European Court of Human Rights on the disclosure of truthful private information by private parties and the few cases that had been decided gave little assistance’ (See Phillipson and Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Act Era’ (2000) 63 MLR 660). The Reasonable Expectation of Privacy Test: This test was subsequently adopted in the House of Lords in Campbell by Lord Hope (at [85]) and Lady Hale (at [134]). In Campbell, Lord Nicholls noted at [21] that: “Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.” In A v B Plc at [11] (vii), the Court of Appeal had referred to a passage by Gleeson CJ from the Australian case of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 1 ALR 185 at [42] which included the following test for determining whether the claimant had a reasonable expectation of privacy: “Certain kinds of information about a person, such as information relating to health, personal relationships or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”

This test came to be considered by the House of Lords in Campbell with Lord Hope giving the fullest discussion (at [92]-[102]):  

There will be a reasonable expectation of privacy where the information is obviously or can be easily identified as private. There is no need in this situation for the ‘highly offensive’ test (above) to be used. The ‘highly offensive’ test is useful where there is room for doubt, especially where the activity relates to an activity or a course of conduct.

For the purposes of the test, his Lordship felt the mind to be examined is not that of the reader of the information but is that of the person who is affected by the publicity:

“The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.” (At [99]) Lady Hale, at [135]-[136], was also of the opinion that an objective reasonable expectation of privacy test is clearer and simpler than the ‘highly offensive’ test. She felt Gleeson CJ did not intend the ‘highly offensive’ test to be the only test used particularly in respect of information which is obviously private. Further in relation to the penultimate line:

“[H]e was referring to the sensibilities of a reasonable person placed in the situation of the subject of the disclosure rather than to its recipient.” Lord Carswell, at [165]-[166], agreed with the reasons of Lord Hope and Lady Hale as to why the information at issue in the case was private and so considered it was unnecessary to ask whether the disclosure would be highly offensive. This appears to support the ‘obviously private’/‘highly offensive’ distinction drawn by Lord Hope and Lady Hale. Subsequently in Murray v Express Newspapers Plc [2008] EWCA Civ 446; [2008] EMLR 12 ( sub nom. Murray v Big Pictures (UK) Ltd) the Court of Appeal, after summarising the views of the Law Lords in Campbell on this issue, declined to approve the proposition that routine, everyday acts could not attract a reasonable expectation of privacy. It held, at [36], that the question of whether there was a reasonable expectation of privacy was a broad one which takes account of all the circumstances of the case including:       

The attributes of the claimant, The nature of the activity in which the claimant was engaged, The place at which it was happening, The nature and purpose of the intrusion, The absence of consent and whether it was known or could be inferred, The effect on the claimant, and The circumstances in which and the purposes for which the information came into the hands of the publisher.

2.3.1.2 Does the interest of the owner of the private information yield to the right of freedom of expression of the publisher? The public interest exception has also been adapted by the courts to accommodate the requirements of Article 8 and Article 10. As the Court of Appeal explained in HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776; [2008] Ch 57:

“Before the Human Rights Act 1998 came into force the circumstances in which the public interest in publication overrode a duty of confidence were very limited. The issue was whether exceptional circumstances justified disregarding the confidentiality that would otherwise prevail. Today the test is different. It is whether a fetter of the right of freedom of expression is, in the particular circumstances, "necessary in a democratic society". It is a test of proportionality.” This test derives from the second paragraph of each of the articles. Paragraph 2 of Article 8 and paragraph 2 of Article 10 each permit their respective rights to be interfered with where it is “necessary in a democratic society” for achieving certain specified aims which include “the protection of the rights and freedoms of others”. Article 10 can also be interfered with for the purpose of “preventing the disclosure of information received in confidence”. The result of this is that the right to respect for private life in Article 8 can yield to the right to freedom of expression to the extent that it is necessary to protect freedom of expression in the circumstances and vice versa. As Lord Hoffmann explained in Campbell v MGN Ltd at [55]:

“The question is… the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need”. (Emphasis in original) So, for example, consider Campbell itself. Naomi Campbell, the fashion model, had repeatedly maintained that she never used drugs. The Mirror newspaper published a series of articles revealing that she was receiving treatment for drug addiction at Narcotics Anonymous. Campbell conceded that, as a result of her previous denials, the newspaper was entitled to report that she was a drug addict

and that she was receiving treatment. The question which the House of Lords had to resolve was whether the newspaper went further than was necessary by printing the details of her treatment, including the fact that she was receiving her treatment at Narcotics Anonymous, and by printing photographs of her leaving a Narcotics Anonymous session with other addicts. Necessity and the Proportionality Test: The basic requirements for an interference to be necessary in a democratic society have been summarised by Lady Hale in Campbell at [139]:

“the interference or restriction… must meet a "pressing social need" and be no greater than is proportionate to the legitimate aim pursued; [and] the reasons given for it must be both "relevant" and "sufficient" for this purpose.” i)

The interference or restriction must meet a pressing social need This is similar to the requirement under breach of confidence that disclosure had to be in the public interest. ii) It must be proportionate to the legitimate aim pursued The interference must be no more than is necessary to protect the other right. The interference does not have to be absolutely necessary or indispensible but it does have to be more than merely useful, reasonable or desirable - Handyside v United Kingdom (1976) 1 EHRR 737. iii) The reasons given for the interference must be both relevant and sufficient This is referring to the reasons given to justify the publication or the restraint on publication. The reasons must be both relevant to the assessment of whether the interference is necessary and sufficient to justify that conclusion. They must also be logical. The Balancing Exercise: Ultimately however, the resolution of the second stage of the test once again involves a balancing exercise. As Lord Hope explained in Campbell at [105]:

“The effect of [Article 8 and Article 10] is that the right to privacy has to be balanced against the right of the media to impart information to the public. And the right of the media to impart information to the public has to be balanced in its turn against the respect that must be given to private life.” In Re S [2004] UKHL 47; [2005] 1 AC 593 at [17], Lord Steyn derived the following four propositions from the opinions of the Law Lords in Campbell on the conduct of the balancing exercise:

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

2.4 DEFENCES It is important to note that here we are concerned with situations where the rights under article 8 was deemed to outweigh the right under article 10 and so revelation by the defendant is unjustifiable, (i.e. it is/was not in the pu...