Privacy and misuse of private information

This chapter involved understanding the history of the protection of privacy in English law and the range of current legal approaches to privacy. The tort of misuse of private information is currently the predominant means of protecting privacy, due to the impact of the Human Rights Act 1998. It’s a developing area of law and has interesting international comparators.

Kaye v Robertson, in1990, is often used to illustrate the fact that, historically, privacy has not been directly protected in English law but rather indirectly through actions in defamation, passing off, or trespass to the person. Additionally, there was an equitable action for breach of confidence, not applicable to many of the more common contemporary breach of privacy scenarios. When the Human Rights Act 1998 made the European convention on Human Rights part of UK law, Section 6 meant that UK law would develop in accordance with the principles of the Convention. This entailed possible actions under Article 8: Right to Private and Family Life which came into conflict with Article10: Right to Freedom of Expression.

Some of the first ‘privacy’ actions arose from celebrities protecting their commercial arrangements (as in Douglas v Hello! in 2001) or public figures attempting to prevent exposure of infidelities in the tabloid press. The key case to emerge was Campbell v Mirror Group Newspapers in 2004, where the House of Lords, by a 3-2 majority, confirmed the action for breach of confidentiality by supermodel Naomi Campbell. It published story on her attendance at a Narcotics Anonymous meeting, accompanied by photos. This was held to have breached the claimant’s Article 8 rights and was not balanced by a sufficiently legitimate aim of public benefit in publication under Article 10.

Article 8 is to be engaged if the claimant is held to have held a ‘reasonable expectation of privacy’’ if this threshold is found, then a ‘balancing exercise’ must be performed according to the Article 10 values of public interest in publication. This chapter highlighted the way in which children as subjects, photographs, and police investigations are viewed in tort proceedings. Remedies such as interim injunctions pose particular problems in this tort, which is now known as ‘misuse of private information’.