Unpacking the reasonable expectation of privacy test PDF

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For educational use onlyUnpacking the reasonable expectation of privacy testN. Moreham*Journal ArticleLaw Quarterly ReviewL.Q. 2018, 134(Oct), 651-Subject TortsOther related subjects JurisprudenceKeywords Jurisprudence; Misuse of private information; Privacy; Reasonableness**_L.Q. 651_* I. Introduct...

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Unpacking the reasonable expectation of privacy test, L.Q.R. 2018, 134(Oct), 651-674

For educational use only

Unpacking the reasonable expectation of privacy test N.A. Moreham*

Journal Article Law Quarterly Review L.Q.R. 2018, 134(Oct), 651-674 Subject Torts Other related subjects Jurisprudence Keywords Jurisprudence; Misuse of private information; Privacy; Reasonableness

*L.Q.R. 651 I. Introduction The question of whether a claimant has a reasonable expectation of privacy lies at the heart of the English misuse of private information action. Courts have made it clear that establishing such an expectation depends on a wide range of factors such as the claimant’s location, the nature of the information disclosed, and the nature of the activity in which he or she was engaged. This article will argue that all of these factors, and indeed the application of the reasonable expectation of privacy test itself, are underpinned by two previously unarticulated principles. The first is that a claimant will have a reasonable expectation of privacy if such an expectation is consistent with societal attitudes to the information or activity in question; in other words, if reasonable people would think that people should be protected against exposure of the information or activity at issue. The second principle asks what signals the claimant gave that he or she regarded the information or activity as private and whether social norms would usually require such privacy signals to be respected. These principles operate as two alternative, but usually mutually reinforcing, routes to the same destination, i.e. establishing a prima facie actionable privacy interest. By uncovering these principles for the first time, this article seeks to recalibrate our understanding of the legal privacy interest. The first aim in doing this is to bring more certainty to the application of the reasonable expectation of privacy test. Courts should not feel moved, as the English Court of Appeal recently did, to express "sympathy" with the view that the private information tests "are too vague and uncertain of application for an editor to know with a reasonable degree of confidence whether it is safe to publish". Nor should they say that the "the guidance to be derived from the case law has only limited value". 1 The action need not be this amorphous. Secondly, the articulation of the claimant-focused signals principle aims to return consideration of the claimant’s own behaviour in respect of the information or activity to the heart of the enquiry into what is and is not private. This principle not only reflects the subjective elements of the privacy interest, but also highlights the ongoing relevance of breach of confidence principles, particularly those recognising the importance of the circumstances in which information is imparted. It also gives coherence to many apparently disparate *L.Q.R. 652 factors which bear on the application of the reasonable expectation of privacy test including the claimant’s location, the treatment of children, surreptitious observation and the degree of knowledge required. The article is developed in four main stages. It begins by making two preliminary points about how the reasonable expectation of privacy test works: first, that that test entails a normative enquiry focusing on what "privacy protection" the claimant deserves and secondly, that reasonable expectations of privacy are significantly affected by context. The two new principles are then discussed in detail. The article concludes by showing how the two principles can work together to provide an intuitive and predictable conceptual framework for applying the reasonable expectation of privacy test. II. The Reasonable Expectation of Privacy Test The reasonable expectation of privacy test which lies at the heart of the analysis in this article was first identified as the "touchstone" of the misuse of private information action by Lord Nicholls of Birkenhead in Campbell v MGN Ltd .2 If the claimant can establish reasonable expectation of privacy then the right to respect for private life in art.8 of the ECHR is "engaged" and the first hurdle in the misuse of private information action is cleared. It is then up to the defendant to show that that right is © 2021 Thomson Reuters.

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Unpacking the reasonable expectation of privacy test, L.Q.R. 2018, 134(Oct), 651-674

outweighed by some other interest, usually the right to freedom of expression guaranteed by art.10 of the ECHR .3 Courts have identified numerous factors which will bear on the application of the reasonable expectation of privacy test. As a unanimous Court of Appeal explained in Murray v Express Newspapers Plc , holding that the young son of well-known author J.K. Rowling could restrain the defendants from publishing photographs taken of him on the public street during a family trip to a café:4 "As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include 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." Other factors, including the form in which the information was stored, the way it was communicated, and whether the claimant courted publicity, can also be considered. *L.Q.R. 653 5 This article starts from the position that the reasonable expectation of privacy test is essentially a good one. The concept of "reasonable expectation" recognises the subjective nature of the privacy interest (the expectation part) whilst at the same time imposing an objective check (the reasonableness part). 6 Courts are also right, in this author’s view, to recognise that a wide range of factors can bear on the scope of a claimant’s reasonable expectation of privacy including some factors which other authors would argue belong in the second stage of privacy enquiry. The framework set out in this article therefore envisages a more limited role for the second part of the misuse of private information action than scholars, like Eric Barendt, who argue that courts should define privacy expansively and then rely on exceptions or the balance with competing interests to weed out unmeritorious claims.7 Finally, the article starts from the premise that the courts in Murray and other cases have generally identified an appropriate set of factors to guide the application of the reasonable expectation of privacy test. There are, however, two exceptions. To the extent that they are asking whether there is a public interest in the claimant’s activity, the enquiries into "attributes of the claimant" and "purpose of the intrusion" should be dealt with when courts consider the public interest defence.8 Factors such as the claimant’s location, the nature of the activity, the absence of consent, and courting publicity are, however, highly relevant to the reasonable expectation of privacy enquiry. III. How Does the Reasonable Expectation of Privacy Test Work? So, how does the reasonable expectation of privacy test actually work? More precisely, what is the nature of the test and what is it trying to achieve? 1. The reasonable expectation of privacy protection test is a normative enquiry Whether a claimant has a reasonable expectation of privacy is a normative enquiry into what privacy protection a claimant can expect the law to provide in the situation in question. Concluding that a person has a reasonable expectation of privacy is a shorthand for saying that, subject to any overriding competing interests, the claimant is entitled to expect his or her privacy to be protected in the circumstances of the case.9 This idea is deeply embedded in the misuse of private information case law. For example, in Campbell , Lord Nicholls made it clear that he was concerned about whether the claimant had "a reasonable expectation of privacy that [the *L.Q.R. 654 claimant’s drug taking] should be private". 10 Similarly, in Weller v Associated Press Ltd , in which the children of a well-known musician claimed damages for publication of photographs of them on a family outing in Los Angeles, the Court of Appeal said that what was at issue was "the reasonable expectation of the parents as to whether the child’s life in a public place should remain private". 11 In Murray , the Court of Appeal said that the issue was whether the child at the centre of the action had a reasonable expectation of privacy 12

The court therefore concluded that the claimant had a reasonable expectation that paparazzi photographs of him would not be published even though, as a matter of factual reality, his mother’s fame meant that it was almost inevitable he would receive media attention of that nature. It follows that the reasonable expectation of privacy test is not a factual question about what potential privacy-infringers can or usually do in the situation in question. Courts in other jurisdictions have, however, interpreted it in this way. For example, in Schulman v W Productions Ltd the Californian Supreme Court held that the claimant could not have had a reasonable expectation that members of the media would be excluded or prevented from photographing her as she was attended by paramedics at the scene of a serious road accident because "for journalists to attend and record the scenes of accidents and rescues is in no way unusual or unexpected". 13 In contrast, the claimant did have an objectively reasonable expectation of privacy in respect

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of conversations conducted inside a rescue helicopter because the court was "aware of no law or custom permitting the press to ride in ambulances or enter hospital rooms during treatment without the patient’s consent". 14 In other words, whether the claimant had an objectively reasonable expectation of privacy depended not on whether the defendant’s conduct was acceptable but on whether the media usually respected an individual’s privacy in the situations in question. Hints of this type of reasoning can also be seen in English privacy decisions. For example, in Kinloch v HM Advocate , Lord Hope of Craighead observed in obiter dicta that a person has to: "expect to be the subject of monitoring on closed circuit television in public areas where he may go, as it is a familiar feature in places that the public frequent". 15 In other words, because CCTV filming has become common, people cannot expect to be free from it. It is regrettable that it is not clear on the face of the English reasonable expectation of privacy test that it is not supposed to be applied in this way. Clearly, it should not be the case that once an intrusive practice becomes sufficiently widespread to be "in no way unusual or unexpected" (be it videoing people in ambulances, watching people with CCTV cameras, or bugging Narcotics *L.Q.R. 655 Anonymous meetings) then all rights of privacy in respect of it are automatically lost.16 If it were, defendants themselves would set the parameters of the legal privacy interest. As courts have made clear, this is not the position in the English misuse of private information action—rather the focus is on what a person should be entitled to expect in the circumstances in question. A simple change to the formulation of the reasonable expectation of privacy test would make this clearer. If courts were to add the word "protection" to the end of the test—so that the question became whether the claimant had a reasonable expectation of privacy protection —then the epithet itself would make it clear that the question is whether the claimant was entitled to expect his or her privacy to be protected in the situation in question. There is Supreme Court support for this approach. In JR38 , that court considered whether the police breached the art.8 right to respect for private life of a 14-year-old boy by publishing photographs of him allegedly involved in a riot. Although the minority did not agree that the claimant had to establish a reasonable expectation of privacy before art.8 would be engaged,17 all five judges agreed that the reasonable expectation test is about the claimant’s entitlement to privacy protection. For example, Lord Kerr regarded the test as being about "what is reasonable to expect as to protection of his or her privacy"; Lord Wilson said he could not think of a situation where art.8 would be engaged absent a "reasonable expectation of privacy or a reasonable expectation of protection and respect for private life"; and Lord Toulson (with whom Lord Clarke concurred on this point) said that he regarded the questions of whether the claimant had a "reasonable expectation of privacy" or "legitimate expectation of protection" as "synonymous". 18 The test should be amended to reflect this focus on whether the claimant is entitled to be protected against the defendant’s alleged privacy intrusion. The epithet "reasonable expectation of privacy protection" will therefore be used, when appropriate, in the rest of this article. Finally, and relatedly, it should be stressed that a claimant seeking to establish a reasonable expectation of privacy (or of privacy protection) does not need to establish that he or she had an actual expectation that his or her privacy would be respected in the situation in question. As Barendt has pointed out, the claimant might not have turned his or her mind to the question or be too young to have an *L.Q.R. 656 opinion on the matter.19 If, as is being argued here, the reasonable expectation of privacy test is a normative enquiry into what privacy protection a claimant is entitled to then

2. The reasonable expectation of privacy protection test is a contextual enquiry The second preliminary point about the operation of the reasonable expectation of privacy test is that it is not an enquiry made in the ether. Rather, courts have made it clear that it is about how reasonable people would respond to the particular disclosure, observation or exposure of the particular information or activity at issue in the case. This rightly recognises that subtle differences in the claimant’s location, activity, or the manner in which the information or activity was exposed can alter both the impact that the defendant’s actions have upon the claimant and social mores in respect of them. So, for example, English courts have held that a person might have a reasonable expectation of privacy protection in respect of publication of a photograph of a particular activity but not in respect of a description of the same20 or in respect of mass disclosure of, say, his or her marital infidelity but not more limited disclosure of that same information to his or her spouse and/or children.21 Indeed,

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courts in the Human Rights Act 1998 (HRA) context have gone so far as to say that a person might have a reasonable expectation of privacy protection in respect of surveillance or publication undertaken, say, for private profit but not if that very same activity is watched or disseminated for the purposes of law enforcement.22 This is why questions that one might sometimes associate with the public interest defence or balancing of competing interests can also have a bearing on the reasonable expectation of privacy protection test. Many of the factors which the Court of Appeal in Murray identified as bearing on a claimant’s reasonable expectation of privacy—including the "nature and purpose of the intrusion", "the attributes of the claimant" and the "circumstances in which and the purposes for which the information came into the hands of the publisher"—direct courts towards this detailed contextual enquiry into the exact *L.Q.R. 657 nature of the claimant’s objection. As Lord Sumption said in the HRA context, in R. (on the application of Catt) v Commissioner of Police of the Metropolis , the question is whether the claimant had a "reasonable expectation in the relevant respect". 23 All this means that, although it is useful to use the epithet "reasonable expectation of privacy" (or "reasonable expectation of privacy protection") to describe the test applied in misuse of private information cases, They do not simply ask, then, whether a claimant has a reasonable expectation of privacy protection in respect of his or her sexual life but whether the claimant has a reasonable expectation of privacy not to have photographs of him or her engaging in intimate sexual activity uploaded to the internet. And the question is not just whether health information is private but whether disclosure of, say, one’s battle with depression should have been disclosed to one’s employer. It is unsurprising in light of this that courts in privacy cases almost always begin their analysis with a detailed articulation of what exactly happened, how the information or material in question was acquired, the circumstances in which it was published or communicated, the impact on the claimant and such like.24 All of this information is essential to their assessment of whether reasonable people would expect the claimant’s privacy to be legally protected in the circumstances. IV. The First Principle: Societal Attitudes to the Information or Activity in Question So, how should this contextual, normative enquiry into the claimant’s reasonable expectation of privacy protection be applied? As outlined above, there are two inter-related ways of showing that information or an activity is private for the purposes of the misuse of private information action. The claimant-focused route, which examines the signals the claimant used to communicate that he or she regarded the information or activity as private will be discussed below. This section is about the society-focused route to satisfying the test. This part of the framework focuses on societal attitudes to the activity or information in question; on whether reasonable people would regard the matter as private vis-à-vis those to whom it was exposed. Although both parts of the framework are designed to reflect social mores about when information should be private, it is the first route which examines what reasonable people would think about the information or activity in question in general whilst the second route explores social mores in respect of the privacy signals which the claimant relied on. *L.Q.R. 658 25 Although courts have yet to articulate this societal-attitudes principle expressly, Eady J. neatly summarised its application in X & Y v Persons Unknown when he asked, in the course of applying the reasonable expectation of privacy test, whether the case concerned "the sort of information which most people would reasonably expect to be able to keep to themselves". 26 The significance of the nature of the information or the activity in question to the reasonable expectation of privacy enquiry has also been recognised in numerous other cases. These include Hutcheson (formerly known as KGM) v News Group Newspapers Ltd where the Court of Appeal said "the nature of the information requires careful consideration"27 and Murray , in which "the nature of the activity in which the claimant was engaged" was included on the list of factors which bear on reasonable expectations of privacy.28 Societal attitudes to the revelation of the information or activity at issue have also clearly borne on courts’ attempts to identify particular types of information or activities which are "obviously" or "inherently" private.29 In Campbell , for example, Baroness Hale of Richmond stressed that the defendant’s disclosures related to the claimant’s "health and treatment for ill-health", a type of information which "has always been accepted … is both private and confidential". 30 Lord Hope also cited with approval Gleeson C.J.’s suggestion in the Australian High Court t...