Chapter 16 Guidance on answering the questions in the book

Privacy and misuse of private information

Question 1

Arthur, 19, is the son of Vicky and Bert, who are household names due to the fact that they host one of the most popular daytime talk shows on national television and have recently jointly published a book on ‘Parenting Your Teen’. Arthur has been suffering from an eating disorder for several years and has been receiving intensive therapy at The Abbey, a prestigious clinic. In the course of his therapy, Arthur has revealed to his therapist Linda that Bert had abused him over several years when he was a child. The Spectre, a tabloid newspaper, has now published a photo of Arthur (in which he is recognizable, despite wearing a hoodie) entering The Abbey. Accompanying the photo is an article saying, ‘sources close to The Abbey have revealed that all was not what it seemed in Vicky and Bert’s household’.

Disregarding the law of defamation, what tort actions might be brought by Arthur, Vicky and Bert?

Outline:

  • Identify the areas of law for the scenario. Misuse of private information is the most relevant.
  • A very brief background of legal developments
  • This scenario raises the particular issues of portrayal in the press by a photo accompanied by an ambiguous but suggestive statement.
  • Arthur exposed to notoriety due to that of his parents
  • Bert and Vicky will also want be considering legal action
  • Possible remedies for the claimants should be considered
  • It is tempting to consider defamation but that is excluded by the rubric.

Arthur will want to prevent further publication and obtain damages due to the public exposure of his therapy for an eating disorder. Vicky and Bert will want to try to prevent further publication, as it could jeopardise their professional position of the parents by making them look hypocritical, affect sales of their book and, most importantly, subject Bert to possible criminal prosecution for abuse. They may also claim damages under art 8 ECHR.

The parties will claim that The Spectre has made wrongful use of personal information. This is a tort recently developed under the Human Rights Act 1998. Like the claimants in Douglas v Hello! Vicky and Bert have a commercial, as well as personal, reputation to protect.

  • Vicky and Bert v The Spectre – Following Campbell v MGN, it will be alleged that they had a reasonable expectation of privacy concerning information about their son’s eating disorder and his treatment for it. Further, the ambiguous statement implying family dysfunction is harmful personally and professionally. They will argue that there is no public interest in its publication; however the defendants will use the ‘setting the record straight’ argument from Decisions such as that in Von Hannover (no 1) and Mosley indicate a judicial bias against ‘mere titillation’. Should the publication contain allegations about the child abuse, there is more likely to be a public interest justification under art 10 ECHR.
  • Arthur v The Spectre – Arthur is not a minor and so cases such as Weller and Murray can be distinguished. However, as in Campbell, he is receiving therapy for a serious mental affliction and thus can be said to have a reasonable expectation of privacy. The photograph, if he is identifiable, is particularly powerful, see Campbell, Peck v UK.
  • Both claimants will be seeking an interim injunction against publication of further revelations; Cream Holdings v Banerjee and Rhodes v OPO will be relevant. Damages may be awardable for distress caused and damage to professional reputation and book sales.

Questions 2

It has been claimed that the public’s right to be informed, which is an essential right in a democratic society, can even in some circumstances extend to the private life of public figures.

Comment on the development of the right to privacy in British law.

Outline

  • This essay might begin with a brief summary of the development of the British law relating to privacy.
  • The courts now recognise the separate tort of misuse of private information; its meaning and extent should be considered. Its converse is the public’s right to be informed.
  • Application of this law to public figures and their families and private lives.
  • Conclude with taking a position on the quotation.

The ‘right to privacy’ was not specifically protected in British law, but rather indirectly, as demonstrated in Kaye v Robertson. Some antecedents lay in the equitable action for breach of confidence. Since the passing of the Human Rights Act 1998 the law has been adapted to give protection of private information under art 8. However this must be balanced with art 10 freedom of expression, which advances the public interest in publication.

The development of the tort of misuse of private information can be traced through the cases of Douglas v Hello! A v B, the key case of Campbell v MGN and McKennitt v Ash.

 It was in Campbell that the House of Lords set out significant guidelines on the limits of the public right to know.

Particular areas of debate have centred on photos (Campbell, Von Hannover v Germany and Peck UK) and the press exposure of minor children of public figures: Weller v Associated Newspapers, PSJ v NGN and Murray v Express Newspapers.

A conclusion might include your own stance on recent decisions in this still developing area, including on the controversial cases of Mosley v NGN and Sir Cliff Richard v BBC.