Media: L4 – The Action for the Misuse of Private Information
No direct protection for protection of private information in English Law before the
Human Rights Act (“HRA”)
Balance between ECHR Arts. 8 and 10
Emphasis on preventing revelation of true facts about you or your family not about
protection of reputation as in defamation
Lord Nicholls in Campbell: “Privacy lies at the heart of liberty in a modern state. A
proper degree of liberty is essential for the well-being and development of the
individual”
Resolution 420 (1970) of Parliamentary Assembly of Council Europe: “The right to
privacy (in Art. 8) … is the right to live one’s life with a minimum of interference.”
Basis of Claims before HRA:
These include:
- Trespass
- Private Nuisance – involves land
- Malicious Falsehood – Kaye v Robertson [1991] FSR 62: he was in intensive
care after surgery on his brain and a notice was posted on the door to stop visitor
coming in. photographers ignored this and went in and took a picture. They
argued that he consented, but he was so ill he couldn’t remember.
- Defamation – Tolley v Fry [1931] AC 333
- Data Protection Act 1998 – in certain instances may be able to use this act.
- Liability of Public Authorities in Tort
- Tort of Harassment / Protection from Harassment Act 1997
- Regulation of Investigatory Powers Act 2000
- Breach of Confidence – liability for public dissemination of confidential
information:
o Att.-Gen. v. Guardian Newspapers (No. 2) [1990] 1 AC 109: "can arise out
of a contract whereby one party (`the confident') undertakes that he will
maintain the confidentiality of information directly or indirectly made
available to him by the other party ("the confider') or acquired by him in a
situation, e.g., his employment, created by the confider. But it can also arise
as a necessary or traditional incident of a relationship between the
confident and the confider, e.g. priest and penitent; lawyer and client;
doctor and patient; husband and wife".
Douglas v Hello! [2001] QB 967 (Court of Appeal) – would an injunction be
granted preventing publication or would damages be adequate?
- Tried to get an injunction on the basis of privacy. They had entered into an
agreement with the mag which gave them the right to take and post pictures. The
mag found out that another magazine also had pictures that they were going to
publish. They applied for an interim injunction to stop them publishing it. This
was granted. COA held that s12(3) HRA meant that the court should consider art
8 and 10 when deciding whether or not to grant an injunction. Held that the
injunction should not be continued because they had given up their privacy for
money.
- In the COA Sedley LJ, in his view the action of private misuse of information
was being to emerge as an independent basis for a claim.
Douglas v Hello! [2007] UKHL 21 – whether Hello was liable to OK for breach of
confidence.
, Relationship between Common Law and Art 8:
Bingham LJ in Kaye: “If ever a person has the right to be let alone by strangers with
no public interest to pursue it must surely be when he lies in hospital recovering
from brain surgery and in no more than partial command of his faculties. It is this
invasion of his privacy which underlies the plaintiff’s complaint. Yet it alone,
however gross, does not entitle him to relief in English Law.”
To what extent do ECHR Arts. 8 & 10 and HRA s. 6 give claimants a right to
privacy or force or empower courts to develop a tort protecting individuals from
invasion of privacy?
- HRA s.12(4): “The Court must have particular regard to the importance of the
Convention right to freedom of expression and, where proceedings relate to material
which the respondent claims, or which appear to the court, to be journalistic, literary
or artistic material (or to conduct connected with such material), to -
(a) The extent to which-
(i) The material has, or is about to, become available to the public; or
(ii) It is, or would be in the public interest for the material to be published;
(b) Any relevant privacy code.”
English Courts therefore free to develop protection for infringement of right to
privacy but current position seems to be as follows:
- There is still no general tort of invasion of privacy/ still no right to protect
privacy.
- Claimants can still rely on equitable action for breach of confidence to prevent
the publication of private information in relation to their private lives.
Cases which demonstrate this relationship:
- Peck v UK [2003] 36 ECHR 41: seen on CCTV with a knife and blood all over
him. Thought he had killed someone, but he had tried to commit suicide. The
case went to Strasberg.
o Art. 8 infringement even though P was in a public place; (trying to commit
suicide is a private act)
o UK must ensure that there is a remedy for infringement of substantive
ECHR rights (see ECHR Art. 13 – right to an effective remedy)
- Wainwright v Home Office [2004] 2 AC 406 – no tort of invasion of privacy
- Von Hannover (No. 1) v Germany [2004] EMLR 16 – ECtHR held that
ECHR Art. 8 imposes positive obligations on the state to protect Art. 8 rights.
o The Court found however, that “the publication of the photos and articles in
question, of which the sole purpose was to satisfy the curiosity of a particular
readership regarding the details of the applicant’s private life, cannot be deemed
to contribute to any debate of general interest to society despite the applicant
being known to the public.”
o Von Hannover shows that ECHR right like Art. 8 can be horizontally
directly effective
o Public interest in story might favour publication
o ECHR Art. 8 prevailed over Art. 10 here
o Princess Caroline was photographed in a public place – irrelevant
- Contrast with Von Hannover (No. 2) v Germany (2012) 55 EHRR 1 – public
interest in publishing photo because her father was ill and there was a debate
going on as to how their children reconciled their obligations as members of the
royal family and their private life.
Relevant English Cases:
No direct protection for protection of private information in English Law before the
Human Rights Act (“HRA”)
Balance between ECHR Arts. 8 and 10
Emphasis on preventing revelation of true facts about you or your family not about
protection of reputation as in defamation
Lord Nicholls in Campbell: “Privacy lies at the heart of liberty in a modern state. A
proper degree of liberty is essential for the well-being and development of the
individual”
Resolution 420 (1970) of Parliamentary Assembly of Council Europe: “The right to
privacy (in Art. 8) … is the right to live one’s life with a minimum of interference.”
Basis of Claims before HRA:
These include:
- Trespass
- Private Nuisance – involves land
- Malicious Falsehood – Kaye v Robertson [1991] FSR 62: he was in intensive
care after surgery on his brain and a notice was posted on the door to stop visitor
coming in. photographers ignored this and went in and took a picture. They
argued that he consented, but he was so ill he couldn’t remember.
- Defamation – Tolley v Fry [1931] AC 333
- Data Protection Act 1998 – in certain instances may be able to use this act.
- Liability of Public Authorities in Tort
- Tort of Harassment / Protection from Harassment Act 1997
- Regulation of Investigatory Powers Act 2000
- Breach of Confidence – liability for public dissemination of confidential
information:
o Att.-Gen. v. Guardian Newspapers (No. 2) [1990] 1 AC 109: "can arise out
of a contract whereby one party (`the confident') undertakes that he will
maintain the confidentiality of information directly or indirectly made
available to him by the other party ("the confider') or acquired by him in a
situation, e.g., his employment, created by the confider. But it can also arise
as a necessary or traditional incident of a relationship between the
confident and the confider, e.g. priest and penitent; lawyer and client;
doctor and patient; husband and wife".
Douglas v Hello! [2001] QB 967 (Court of Appeal) – would an injunction be
granted preventing publication or would damages be adequate?
- Tried to get an injunction on the basis of privacy. They had entered into an
agreement with the mag which gave them the right to take and post pictures. The
mag found out that another magazine also had pictures that they were going to
publish. They applied for an interim injunction to stop them publishing it. This
was granted. COA held that s12(3) HRA meant that the court should consider art
8 and 10 when deciding whether or not to grant an injunction. Held that the
injunction should not be continued because they had given up their privacy for
money.
- In the COA Sedley LJ, in his view the action of private misuse of information
was being to emerge as an independent basis for a claim.
Douglas v Hello! [2007] UKHL 21 – whether Hello was liable to OK for breach of
confidence.
, Relationship between Common Law and Art 8:
Bingham LJ in Kaye: “If ever a person has the right to be let alone by strangers with
no public interest to pursue it must surely be when he lies in hospital recovering
from brain surgery and in no more than partial command of his faculties. It is this
invasion of his privacy which underlies the plaintiff’s complaint. Yet it alone,
however gross, does not entitle him to relief in English Law.”
To what extent do ECHR Arts. 8 & 10 and HRA s. 6 give claimants a right to
privacy or force or empower courts to develop a tort protecting individuals from
invasion of privacy?
- HRA s.12(4): “The Court must have particular regard to the importance of the
Convention right to freedom of expression and, where proceedings relate to material
which the respondent claims, or which appear to the court, to be journalistic, literary
or artistic material (or to conduct connected with such material), to -
(a) The extent to which-
(i) The material has, or is about to, become available to the public; or
(ii) It is, or would be in the public interest for the material to be published;
(b) Any relevant privacy code.”
English Courts therefore free to develop protection for infringement of right to
privacy but current position seems to be as follows:
- There is still no general tort of invasion of privacy/ still no right to protect
privacy.
- Claimants can still rely on equitable action for breach of confidence to prevent
the publication of private information in relation to their private lives.
Cases which demonstrate this relationship:
- Peck v UK [2003] 36 ECHR 41: seen on CCTV with a knife and blood all over
him. Thought he had killed someone, but he had tried to commit suicide. The
case went to Strasberg.
o Art. 8 infringement even though P was in a public place; (trying to commit
suicide is a private act)
o UK must ensure that there is a remedy for infringement of substantive
ECHR rights (see ECHR Art. 13 – right to an effective remedy)
- Wainwright v Home Office [2004] 2 AC 406 – no tort of invasion of privacy
- Von Hannover (No. 1) v Germany [2004] EMLR 16 – ECtHR held that
ECHR Art. 8 imposes positive obligations on the state to protect Art. 8 rights.
o The Court found however, that “the publication of the photos and articles in
question, of which the sole purpose was to satisfy the curiosity of a particular
readership regarding the details of the applicant’s private life, cannot be deemed
to contribute to any debate of general interest to society despite the applicant
being known to the public.”
o Von Hannover shows that ECHR right like Art. 8 can be horizontally
directly effective
o Public interest in story might favour publication
o ECHR Art. 8 prevailed over Art. 10 here
o Princess Caroline was photographed in a public place – irrelevant
- Contrast with Von Hannover (No. 2) v Germany (2012) 55 EHRR 1 – public
interest in publishing photo because her father was ill and there was a debate
going on as to how their children reconciled their obligations as members of the
royal family and their private life.
Relevant English Cases:
