Out-Law Guide | 17 Jul 2015 | 12:49 pm | 5 min. read
The European Convention on Human Rights protects a person’s right “to respect for his private and family life, his home and his correspondence“.
While a variety of different causes of action may be relevant to a complaint about a person’s private life, including harassment and defamation, the primary cause of action is misuse of private information, which was developed by the House of Lords in a case between Naomi Campbell and Mirror Group Newspapers (MGN) as a means of shoehorning the jurisprudence relating to articles 8 and 10 of the Convention into breach of confidence law. Article 8 of the Convention protects the right to private and family life while article ten protects the right to freedom of expression.
According to the ruling in the Campbell, case misuse of private information claims are concerned with “the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people".
The 'misuse' tends to be the disclosure, usually the publication or threatened publication, of private information, but a claim does not require publication. Mr Justice Eady said in a ruling in a case involving News Group Newspapers and Imogen Thomas that "the modern law of privacy is not concerned solely with information or 'secrets': it is also concerned importantly with intrusion". This approach was followed by Mr Justice Mann in the well publicised phone hacking cases brought against Mirror Group Newspapers where separate damages awards were made for the hacking itself as well as for the publication of stories relating to the claimants.
While misuse of private information claims tend to be fact-sensitive, the courts will invariably apply a two stage process.
Stage one - reasonable expectation of privacy
A claimant must first establish that he has a reasonable expectation of privacy in the information in question. The Supreme Court held in a case between JK Rowlings's son David Murray and the Big Pictures agency that: “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," the Court said.
The House of Lords said in the Campbell ruling that in some instances the information is obviously private, such as where it relates to an individual’s health or sexual relationships. Where it is not, the court will consider whether a reasonable person of ordinary sensibilities would find the disclosure offensive if placed in the same position as the claimant.
Article 8 will only be engaged if the interference in question is not trivial. People are expected to “adopt a reasonably robust and realistic approach to living in the 21st century” the Court of Appeal has said. Public figures are expected to have a thicker skin than private individuals, the High Court has said.
The publication of private information by way of photographs is governed by the same principles as information published by other means. However, publishing images has been found to be particularly intrusive and it has resulted in a number of successful privacy claims, such as in cases involving Princess Caroline of Monaco, JK Rowlings's son and Paul Weller's children.
It is possible to bring a claim in misuse of private information even where the information in question is false if the false information is of a personal nature, the Court of Appeal has said.
Stage two - the balancing exercise
If the claimant establishes a reasonable expectation of privacy, the court conducts a balancing exercise between the competing rights engaged, those of the publisher to impart, and the public to receive, the information and the privacy rights of the claimant. In a 2004 case in the House of Lords Lord Steyn identified four principles from the Naomi Campbell case in relation to the balancing exercise:
● neither article 8 nor 10 has precedence over the other;
● where there is a conflict between the values under article 8 and 10, an "intense focus" is necessary upon the comparative importance of the specific rights claimed;
● the court has to take account of the justifications for interfering with or restricting each right; and
● the proportionality test has to be applied to each.
The degree to which the intended disclosure is in the public interest is a key factor in balancing competing rights under articles 8 and 10 of the Convention. The publication of private information is easier to justify when it relates to matters of significant public interest, such as corruption and politics.
In the case involving Princess Caroline of Monaco the European Court of Human Rights emphasised the "fundamental distinction … between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions … and reporting details of an individual who … does not exercise official functions". The English courts have followed this approach, for example in the case between Max Mosley and the News of the World.
There may, however, be a public interest in less obviously serious information where, for example, publication corrects or exposes a public image advanced by the claimant, the High Court has said.
While the same remedies as for breach of duty of confidence are available - an injunction, compensatory damages or account of profits, delivery up or destruction of offending material - it is an injunction to restrain the misuse, usually to prevent publication, which the claimant may be most interested in.
Despite Max Mosley’s attempts to argue otherwise there is no right to prior notification, and it is in any event worth bearing in mind that an application for an injunction may result in even greater publicity than would otherwise have been the case.
Damages awards for misuse of private information have, until recently, tended to be quite low. Max Mosley’s successful claim against News of the World publisher News Group Newspapers in 2008 resulted in an award of £60,000, which represented the largest damages award to date for a claim in misuse of private information.
Since then there have been the widely reported settlements in the phone hacking claims against News International and, more recently, the decision in the phone hacking claims against MGN, in which Mr Justice Mann made damages awards ranging from £72,500 to £260,250 in the Gulati case, which has raised the bar considerably.