Self-test questions: Privacy

. Is there a tort of invasion of privacy? Which is the most accurate statement of the law?

Yes, there is a tort of invasion of privacy at common law.

Yes, there is a right of privacy under the European Convention on Human Rights

Yes, there is a statutory tort of invasion of privacy.

No, but there are privacy actions for breach of confidence, misuse of private information or by using the Human Rights Act 1998.

No, not at all in English law.

. Which Article of the European Convention on Human Rights operates best to protect privacy?

Article 2

Article 4

Article 6

Article 8

Article 10

. Peria is a pop star who is regularly featured in the newspapers. She is involved in an accident and ends up in hospital recovering from serious head injuries. Whilst she is recovering a journalist and photographer from The Daily News come to interview her and take photos of her in her hospital bed. She is so unwell that she has no recollection of the interview, and when she later discovers that The Daily News intends to publish, she brings a claim for an injunction to prevent publication. How likely is Peria to be successful?

There is no tort of invasion of privacy therefore there is no cause of action so she will not succeed.

A hospital is not a private place, therefore there is no privacy which can be invaded, so there would not be a claim on these facts.

As a celebrity who is regularly in the newspapers, she has no reasonable expectation of privacy, so will not be successful in obtaining an injunction.

Peria has a reasonable expectation of privacy here, but the balance in favour of reporting would win as it would be in the public interest for The Daily News to report the story.

Peria has a reasonable expectation of privacy here, but the balance would fall in favour of protecting her privacy over reporting as she was in no condition to consent to the interview or photographs.

. Which articles of the European Convention on Human Rights are typically balanced in a claim relating to privacy?

Article 8 and Article 10.

Article 6 and Article 8.

Article 6 and Article 10.

Article 5 and Article 8.

Article 5 and Article 10.

. Natalie is a model who is photographed coming out of a plastic surgery clinic. Natalie is an advocate for natural beauty and has always denied having any surgical enhancements to her body and criticised other models who do. The Daily News publishes a photograph of Natalie coming out of the clinic, with the plastic surgery sign visible in the photograph and an article about her seeking treatment. Natalie wishes to bring a claim for breach of confidence - will she be successful?

Yes, this is a clear breach of her privacy and can be restrained.

The photographs & treatment details are in breach of her privacy, whereas the fact that she has sought treatment could be published.

The photographs & treatment details can be published, whereas the fact that she has sought treatment is in breach of her privacy.

As the story has already been published and is in the public domain, no claim can now be brought, it needed to be a pre-emptive action.

No, there is a clear public interest in publishing the full story.

. Meredith is a television personality. She decides to go to the shops to buy a coffee and is photographed by a newspaper photographer wearing baggy trousers and a stained sweatshirt. Meredith would like to seek an injunction to prevent the newspaper from publishing the photograph, will she be successful?

Yes, this is a clear breach of her privacy so publication will be restrained.

Yes, there is a reasonable expectation of privacy here, so that is the primary test and publication will be restrained.

Balancing the reasonable expectation of privacy against the public interest in publishing the photographs, the balance falls on the side of publication.

No, there is a public interest in publishing the photographs and that is the primary test for the Court.

No, there is a clear public interest in publishing the photographs and no reasonable expectation of privacy.

. What is the test in relation to a breach of confidence or the misuse of private information which has evolved from the leading case of Campbell v MGN [2004]?

Did the Claimant have a "reasonable expectation of privacy" in relation to the information?

Does the claimant's interest in maintaining their right to privacy outweigh the defendant's interest in freedom of expression.

Did the Claimant have a "reasonable expectation of privacy" in relation to the information? If so, does the claimant's interest in maintaining their right to privacy outweigh the defendant's interest in freedom of expression.

Starting with an expectation that publication is in the public interest, does the claimant's interest in maintaining their right to privacy outweigh that?

Starting with the Claimant's reasonable expectation of privacy, are there public policy arguments in favour of publication?

. A convicted child murderer has been released from prison but has been given a new identity. The Daily News is given information from an anonymous source which identifies the murderer's new name and where he now lives. Can the murderer successfully obtain an injunction to prevent publication of this information?

Yes, this is a clear breach of confidence and the risk to his life outweighs the benefit of publication.

Yes, there is a breach of confidence and the Courts apply a public policy test which will fail here.

No, there is a public interest in publishing the information which needs to be weighed against the fact that the information was used in an unauthorised way.

No, the Courts will not protect the privacy of convicted offenders.

No, there is a clear public interest in publishing this information.

. Estelle is one half of a celebrity couple who are well-known on television and have a young family. She has a sexual relationship with Amy and the editor of The Daily News notifies Estelle that they intend to publish Amy's account of the relationship. Estelle wishes to bring a claim that publication breaches her right to privacy and confidentiality under Article 8 EHCR. The Court imposes an injunction restraining the publication of information disclosing the identity of Estelle and details of the sexual relationship. After this date Amy's account is published in print and online in the USA identifying Estelle, although some geo-blocking occurs so that internet users in England and Wales can't access the websites easily. Will Estelle be successful in her claim for an injunction?

Yes, a breach of confidence should always be restrained by way of an injunction.

Yes, the protection of Estelle and her family's privacy outweighs the public interest in publication, which would be magnified if publication were allowed in this jurisdiction.

No, an injunction on the grounds of confidentiality or privacy would not be sustainable in the face of widespread breaches.

No, the public interest in publishing the account outweighs Estelle's right to privacy.

No, the material is already widely known and in the public domain so the injunction is worthless.

. Erin breaks up with her boyfriend Ferdy, leaving him for another man and in revenge he threatens to disclose intimate photographs of her, that he had taken during their relationship, threatening to share them with her friends, family and employer. Can Erin successfully seek an injunction to prevent Ferdy from disclosing the photographs and on what basis?

Erin has a reasonable expectation of privacy in relation to the photographs and there is no public interest in publication that could outweigh her right to privacy.

Yes, the Court has the power to order an injunction to prevent disclosure to her employer given the impact it would have on her employment.

Erin has a reasonable expectation of privacy in the photographs but the public interest in publication outweighs her right to privacy.

No, Ferdy owns the rights to the photographs and can therefore distribute them.

No, Erin consented to the photographs being taken, so cannot revoke that consent.

. How do the Courts deal with child Claimants as compared with adults in claims relating to privacy?

Child Claimants are treated in exactly the same way as adults in relation to privacy claims.

Child Claimants are simply subject to the balance between the expectation of privacy and freedom of expression.

Children's interests do not have automatic precedence, but the weight given to their Article 8 rights and their best interests is significant.

There will always be a legitimate expectation of privacy for children, unless they are a celebrity or the child of a celebrity.

Child Claimants will always be successful in a privacy claim as their rights as children are paramount.

. Jerome is the captain of an England sports team who regularly gives motivational speeches to young people as a role model for how to behave. He has an affair with his team-mate's wife and The Daily News wishes to publish an article about the affair, along with photographs of the couple together in restaurants and bars. Jerome wishes to protect his reputation and privacy by seeking an injunction preventing publication, will he be successful?

Yes, this is a breach of confidence which should always be restrained by way of an injunction.

Yes, the reasonable expectation of privacy outweighs the public interest in publication.

Yes and no, the photographs were taken in public places, so they could be published but the details of the affair would attract a reasonable expectation of privacy so cannot be published.

No, the public interest in publishing the account outweighs Jerome's right to and reasonable expectation of privacy.

No, there is a clear public interest in a celebrity behaving hypocritically and the iniquity means that he cannot argue that he has a reasonable expectation of privacy.

. What is a super-injunction?

An injunction preventing the publication of material.

Where an application for an injunction has been heard by the Supreme Court.

An injunction where the parties' names are anonymised.

An injunction which has been breached.

An injunction where the parties' names are anonymised and there is a prohibition on publishing information about the existence of the legal proceedings.

. Aurelie intends to commit suicide by jumping from the top of a building in her local town centre. She is recorded by CCTV cameras as she is on the roof. The police persuade her to come down and detain her under the Mental Health Act, and she is later released, The CCTV footage is passed to the local television news programme and newspapers to highlight the good work of the police officers and their use of CCTV to protect the public. Aurelie wishes to bring a claim that her privacy has been breached by the use of the CCTV footage under Article 8 EHCR, will she be successful?

Yes, Aurelie had an expectation of privacy which had been breached as the repeated viewing on television exceeded any exposure that people would have had if they had been passers-by.

Yes, Aurelie's right to life outweighed the need for publication,

No, the balance between privacy and publication here favoured publication for public policy reasons, to demonstrate the positives of CCTV.

No, the importance of protecting Aurelie's right to life outweighed her expectation or privacy.

No, the footage was filmed in a public place, so there is no expectation of privacy.

. In a claim for breach of confidence/misuse of private information, the Court will consider whether the Claimant has a reasonable expectation of privacy (an objective test), then conducts a balancing exercise between the Article 8 right to respect for private and family life and the Article 10 right to freedom of expression. Which of the following factors is NOT part of the Court's approach to the balancing exercise?

Any restriction or interference with a right must be in accordance with the law and pursue a legitimate aim.

Any restriction or interference must meet a pressing social need.

Any restriction or interference must be no greater than is proportionate to the legitimate aim pursued.

Any restriction or interference must be considered objectively.

Neither Article 8 or Article 10 takes precedence over the other.

Quiz Content