Law of Tort
Question 1:
To begin, I agree with this assertion to the degree that it is correct – since Article 8 of
the Human Rights Act 1998 protects an individual's rights, the state/public bodies,
such as the courts, are in fact obligated to protect an individual from third parties
such as the press1. Misuse of private information, breach of confidence, limitations,
defences and Articles 8 & 10 are the points on which I will argue. In terms of how law
of tort has developed in recent decades, to protect a person’s privacy, will be
illustrated below in this essay.
In its most basic form, privacy refers to the right to be free of unwelcome interference
and to keep certain matters hidden from public view. Article 8 of the European
Convention on Human Rights recognises these elements, these include
communications privacy and privacy in the home and workplace.
The categories of privacy torts are as follows: intrusion of solitude – psychically or
electronically entering an individual’s home, public disclosure of private facts – the
public disclosure of a true private information that a reasonable person would find
objectionable, false light – the publication of facts that cast an individual in a negative
manner, even if the facts themselves are not defamatory and finally, appropriation –
using an individual’s name without their consent to obtain some benefits.
For public disclosure of private facts, the information in question must be private.
Anything may be considered private information, for example a person’s health
(Campbell). The idea of misusing private information is thought to have originated
with the equitable remedy for breach of confidence in ‘Campbell v MGN Ltd (2004) 2’.
In this case, despite the claimants public declaration that she did not use drugs, the
defendants, the Mirror Group Newspaper, published articles about her apparent drug
addiction and published photos of her leaving a drug addicts' support group.
According to the House of Lords, if a normal individual in the claimant's position were
put in her place, would the disclosure of the details would be offensive? Yes. The
complainant won at trial, where it was determined that the details in question was
1
Tony Weir, An Introduction to Tort (2nd ed Clarendon Law Series 2006) p184.
2
Campbell v Mirror Group Newspapers [2004] UKHL 22
, Law of Tort
classified and that the newspaper's publication of it was not in the public interest.
“There may well be liability for making public matters which although perfectly true,
were obviously supposed to be kept private, even if no one would think any worse of
the person as a result of the publication3”.
However, some may argue that the origins lay in ‘Douglas v Hello Ltd 2001 4’. The
question in this case was whether OK! Magazine and the Douglas family had a
commercial right to the wedding pictures that were released in the wedding domain.
The photos, which were intended to be published by OK! Magazine but were instead
sold, had a commercial value and illustrated the need for confidentiality. Therefore,
the Douglases were entitled to damages for breach of confidence and the
interference by Hello! Magazine.
Both the torts of misuse of private information and breach of confidence all have a
clear and significant limitations. These can be seen in the case of ‘Kaye v Robertson
& Sport Newspapers Ltd (1991)’. The claimant was a well-known actor suffering from
a serious accident in the hospital, where two journalists gained access to his private
room and photographed and interviewed him. The claimant then sought an injunction
after the defendants threatened to post the interview.
The issue in this case was whether the claimant had a cause of action which would
enable the court to grant an injunction. Any report claiming that the complainant gave
consent is considered to be a deliberate lie. This case, along with Wainwright v
Home Office (2003), set a precedent since there was no actionable right to privacy in
the English legal system at the time.
The term "public interest" can refer to a broad variety of situations. This was
demonstrated in the case of ‘Mosely v Mirror Group Newspapers (2008)’, which
involved sexual activities. It was decided that there was no need to share the
claimant's sexual habits since there was no public interest. However, a person may
seek a few defences, such as obtaining an injunction to prevent private information
3
Tony Weir, An Introduction to Tort (2nd ed Clarendon Law Series 2006) p184.
4
Douglas v Hello Ltd (No. 3) [2005] EWCA Civ 595
Question 1:
To begin, I agree with this assertion to the degree that it is correct – since Article 8 of
the Human Rights Act 1998 protects an individual's rights, the state/public bodies,
such as the courts, are in fact obligated to protect an individual from third parties
such as the press1. Misuse of private information, breach of confidence, limitations,
defences and Articles 8 & 10 are the points on which I will argue. In terms of how law
of tort has developed in recent decades, to protect a person’s privacy, will be
illustrated below in this essay.
In its most basic form, privacy refers to the right to be free of unwelcome interference
and to keep certain matters hidden from public view. Article 8 of the European
Convention on Human Rights recognises these elements, these include
communications privacy and privacy in the home and workplace.
The categories of privacy torts are as follows: intrusion of solitude – psychically or
electronically entering an individual’s home, public disclosure of private facts – the
public disclosure of a true private information that a reasonable person would find
objectionable, false light – the publication of facts that cast an individual in a negative
manner, even if the facts themselves are not defamatory and finally, appropriation –
using an individual’s name without their consent to obtain some benefits.
For public disclosure of private facts, the information in question must be private.
Anything may be considered private information, for example a person’s health
(Campbell). The idea of misusing private information is thought to have originated
with the equitable remedy for breach of confidence in ‘Campbell v MGN Ltd (2004) 2’.
In this case, despite the claimants public declaration that she did not use drugs, the
defendants, the Mirror Group Newspaper, published articles about her apparent drug
addiction and published photos of her leaving a drug addicts' support group.
According to the House of Lords, if a normal individual in the claimant's position were
put in her place, would the disclosure of the details would be offensive? Yes. The
complainant won at trial, where it was determined that the details in question was
1
Tony Weir, An Introduction to Tort (2nd ed Clarendon Law Series 2006) p184.
2
Campbell v Mirror Group Newspapers [2004] UKHL 22
, Law of Tort
classified and that the newspaper's publication of it was not in the public interest.
“There may well be liability for making public matters which although perfectly true,
were obviously supposed to be kept private, even if no one would think any worse of
the person as a result of the publication3”.
However, some may argue that the origins lay in ‘Douglas v Hello Ltd 2001 4’. The
question in this case was whether OK! Magazine and the Douglas family had a
commercial right to the wedding pictures that were released in the wedding domain.
The photos, which were intended to be published by OK! Magazine but were instead
sold, had a commercial value and illustrated the need for confidentiality. Therefore,
the Douglases were entitled to damages for breach of confidence and the
interference by Hello! Magazine.
Both the torts of misuse of private information and breach of confidence all have a
clear and significant limitations. These can be seen in the case of ‘Kaye v Robertson
& Sport Newspapers Ltd (1991)’. The claimant was a well-known actor suffering from
a serious accident in the hospital, where two journalists gained access to his private
room and photographed and interviewed him. The claimant then sought an injunction
after the defendants threatened to post the interview.
The issue in this case was whether the claimant had a cause of action which would
enable the court to grant an injunction. Any report claiming that the complainant gave
consent is considered to be a deliberate lie. This case, along with Wainwright v
Home Office (2003), set a precedent since there was no actionable right to privacy in
the English legal system at the time.
The term "public interest" can refer to a broad variety of situations. This was
demonstrated in the case of ‘Mosely v Mirror Group Newspapers (2008)’, which
involved sexual activities. It was decided that there was no need to share the
claimant's sexual habits since there was no public interest. However, a person may
seek a few defences, such as obtaining an injunction to prevent private information
3
Tony Weir, An Introduction to Tort (2nd ed Clarendon Law Series 2006) p184.
4
Douglas v Hello Ltd (No. 3) [2005] EWCA Civ 595
