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Flashcards in Privacy Deck (19)
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1

Wainwright v Home Office (2003)

Strip search --> not following regulations --> led to humiliation (woman) and PTSD (child).

Can the search itself/manner of the conduct lead to an action? Lord Hoffmann gave the leading speech in unanimous judgement; declined to state that there was a general tort of privacy.

"What the courts have so far refused to do is formulate a general principle of invasion of privacy" [19].

"There seems to me a great difference between identifying privacy as a value which underlines the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law itself" [31]. Therefore 'merely' an interest?

2

Kaye v Robertson (1991)

Newspaper lied to get into the hospital room, took advantage of his state by interviewing him, etc.

But medical evidence showed that Kaye had no ability to give informed consent

Sought an injunction…


Not clear that giving interview would lower reputation for 'right-thinking' people… so no libel

Trespass to the person not held here either

So malicious falsehood? CoA held that elements could be made out here. Found action based on specific facts. So newspaper held liable here [tort not on syllabus].

Glidewell LJ at p. 66 advocates for P intervention. Bingham at p. 70 says the common law and statute has failed to protect the privacy of individuals. Indeed, the interview was published anyways; just had to state that no consent was given.

3

Coco v AN Clark (1968)

Outlines the breach of confidence (BoC) doctrine:

1) Information was of a confidential nature
2) Information was communicated in circumstances importing an obligation of confidence
3) There must be unauthorised use of that information to the detriment of the party communicating it

- Megarry J at p. 419.

4

AG v Guardian Newspapers (No. 2) (1990)

Lord Goff at p. 281 extends BoC to include instances where there is no previous relationship.

A duty arises "when confidential information comes to the knowledge of a person... in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others."

5

Campbell v MGN (2004)

This case shows the intrinsic importance of the HRA. See Lord Nicholls at [11]: "In this country development of the law has been spurred by the enactment of the Human Rights Act 1998." See Lord Hoffmann at [60]: "What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity."

Articles disclosed C's drug addiction + treatment (AA meetings). Sought damages against the paper for breach of confidence.

It was accepted that the newspaper was correct in correcting the previous misstatement by C. However, by publishing additional details of therapy + covert photographs, this took the case 'over the edge'.

The newspaper relied upon the public interest defence. At [14] Lord Nicholls believes that the tort of BoC has 'changed its nature' to become the tort of 'Misuse of Private Information' (MPI). There was thus a shift in the centre of gravity for BoC towards privacy and the control of human dignity (Lord Hoffmann at [51]). Lord Hope does not believe that the centre of gravity has 'shifted' per se and that the 'balancing exercise' is essentially the same, but now more "carefully focused and more penetrating" following the coming into effect of the HRA 1998 - [85-6]. Baroness Hale believes that the 1998 Act "does not create any new cause of action between private persons" [132], implying that BoC is simply an extension of MPI. This is probably false...

Importantly, Lord Nicholls at [17] writes: "The time has now come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence."

He goes on to say at [21]: "Essentially the touchstone to private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy." This is the key question for Lord Nicholls. Has become the most common way of expressing this tort in subsequent cases. He was influenced by Strasbourg.

Regarding the extent of Article 8 - a person's health/treatment has long been held as private and confidential; however, this is a matter of fact and degree. Not always the case (Baroness Hale at [145], [157]). Moreover, a picture can 'tell a thousand words'; photographs are therefore well protected (Lord Hope at [123]; Baroness Hale at [155]).

Regarding the extent of Article 10 - Baroness Hale confirms that 'political speech' remains at the 'top of the list' in terms of Article 10 protection. Intellectual/educational speech also very important, as it leads to the development of ideas. Artistic speech contributes to free-thinking and creativity [148].

6

The Human Rights Act 1998

s.2: Interpretation of Convention rights -
(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights...

whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.


s.6: Acts of public authorities -
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature

7

European Convention of Human Rights 1950, effective 1953

Article 8 - Right to Privacy
Article 10 - Right to Freedom of Expression

8

PJS v NGN Ltd. (2016)

Lord Mance at [20] writes that neither Article 8 or 10 is 'prioritised'; thus, when they are in conflict, a comparative exercise needs to be conducted (in terms of the rights of C and D) with proportionality in mind.

Moreover, the UKSC in this case questions whether gossip engages Article 10 at all [24].

This is the leading case for injunctions -

C famous. Extra-marital affair(s). Some of these parties attempted to sell their story to the Sun. One of these sold/published story in the US (only in hardcover/print). Eventually spread to Canada and Scotland --> then social media, namely Twitter. NGN argued that given the circumstances, the injunction should be lifted. UKSC stayed the injunction, despite the fact that the information is in the public domain. Thus took a different approach compared to Mosley (Lord Mance at [3]).

Moreover, the SC held that each fresh publication of private information = fresh tort (another cause of action arising). As such, there is something left for the Court to protect; can prevent further harm/further torts. What also seemed important was that they viewed print media as being more intrusive than being on social media; news on a more 'enduring basis'. This perhaps reflects a generational gap (Lord Mance at [32]).

Finally, the children's rights were important in this case regarding the 'media storm' (Lord Mance at [35]).


It is significant that the tort can be protected despite it being leaked.

Had breach of confidence continued (rather than MPI, as derived from Campbell) --> a different judgement would have probably been made (Lord Neuberger at [57-8]). No injunction would have contributed to the breach of privacy: the unwanted intrusion into one's life (not secrecy) (Lord Neuberger at [63]).

9

Vidal-Hall v Google Inc. (2015)

Discussing the nature of MPI -

Many believed that MPI was an extension of (the equitable) breach of confidence.

Here, the answer of what MPI is was given in 'broad terms' --> but is a *tort*, without any equitable characteristics (Lord Dyson MR and Sharpe LJ at [43]).

MPI and breach of confidence protect different interests (Lord Dyson MR and Sharpe LJ at [21]).

10

Murray v Express Newspapers Ltd. (2008)

This case illustrates the added complication regarding the photos of children (of JK Rowling!).

Baby 'officially' making the claim in this case. CoA concluded that his right to privacy was infringed.

Initial difficulty --> reasonable expectation of privacy for a baby? Helped here by the fact that it is an objective test --> we look in regards to how the parents have been keeping the child's life private (so we look at the actions of the parents) - Sir Anthony Clarke MR at [37].

Reasonable expectation of privacy = objective, broad question. Takes into all circumstances of the case (e.g. attributes of the claimant, nature of activity in which claimant was engaged, the place of which it was happening, etc.) - Sir Anthony Clarke MR at [35-6].

He goes on to distinguish this case from Campbell, holding that previously no other case involved children being targeted by the media. Naomi Campbell had 'chosen' the limelight. The children haven't done so. The parents wished to protect children from media - this is perfectly reasonable [47], [50].

The fact that the pictures were being taken deliberately in secret also played a major role in finding for C. However, the mere taking of a photograph in the street is not per se objectionable, e.g. if the focus was on the 'scene' and C just happened to be there. The focus should be on their subsequent publication [50], [54].

11

Mosley v NGN (2008) (QB)

S&M orgy participation.
Nazi connotation?

C initially wants an injunction and is subsequently awarded damages.

A good reason for telling a story does not equate for a good reason to take photographs.

Start to see certain principles/aspects that are said to be important by the Court...

Sexual relations are typically well protected by Article 8 (see [98], [100]).

Moreover, 'clandestine' (secret) recordings (visual/audio) + 'especially gory' pictures should not be published, even if there is a good case for revealing wrongdoing to the public (see Eady J at [16]).

Regarding Article 10 - gossip is at the 'bottom' of the priorities list; not so important to protect (Eady J at [15]). He goes on to state that even when the case concerns what we would think is an important story (e.g. crime) --> low-level crime can 'shade into' gossip, and does not justify the intrusion [111]. "It is not for journalists to undermine human rights, or for judges to refuse to enforce them, merely on grounds of taste or moral disapproval" [127].

Considering damages - it seems to reflect the infringement of the right itself. However, this may include distress, hurt, and loss of dignity + a vindicatory aspect (Eady J at [214], [216]).

Is there justification for an injunction when information has been 'leaked' to the public already? (e.g. on Twitter/FB - but want to injunct broader/national newspaper) Earlier cases: no justification to prevent further dissemination of private information. Once it is out there, it is out there. Would be a futile gesture as orgy was already a sensation at the time --> Mosley litigation (damages awarded instead) [34].

12

K v NGN (2011)

Affair at the workplace. Became known amongst workers. C had another go with the wife for the sake of children. X (affair partner) eventually had the contract terminated.

Just because the information was leaked to a small circle of people --> friends, family --> does not mean that it can be published widely. C is therefore entitled to expect colleagues would treat information as confidential (Ward LJ at [11]).

What strengthened C's claim was that other people's Article 8 rights were engaged (families of both affair partners) (Ward LJ at [14]). This is particularly the case with children, whose Article 8 rights are attached 'particular weight' (War LJ at [17], [19]).

13

Douglas v Hello! (2006) (QB)

Already agreed on access with one magazine (to 'control' access).

Photographs 'different' from 'bare fact' that they were getting married.

Every time someone saw the photo --> fresh intrusion of privacy (Lord Phillips MR at [105]).

14

Von Hannover v Germany (No. 1) (2005) (ECJ)

You can have a reasonable expectation for privacy (within reason).

Photos of everyday activities you did outside + public figure. No public function in this case --> no public interest?

Unsuccessful in domestic courts, so C brought the claim to ECJ.
Found that her Article 8 right had been infringed. Imposes a positive obligation of the state to secure respect for a citizens 'private life' through their laws --> German laws were not good enough.

Supposed to protect you so you are allowed to develop 'yourself'.

No need to be on a desert island for privacy!

Quite broad? Compare especially to Campbell, where it was acknowledged that there was public interest over even very mundane celebrity tasks that cannot reasonably be expected to damage private life (Baroness Hale [154]). Strasbourg Court has since 'rolled back' a little bit…

Regarding Article 10 - it protects free speech and the reporting of facts must be capable of contributing to debate in a democratic society. As such, 'gossip' does not really engage Article 10 [63], [65]. This case establishes a 'strict line' that has subsequently been relaxed.

15

Weller v Associated Newspapers plc (2015)

Faces of children weren't pixelated.

Rights can be infringed even if the activity is done in a public place - albeit normally, the right to take photos in public areas is one of the ordinary incidents of a free society (Lord Dyson MR at [18]).

Circumstances, intentions, etc. all important.

Remember that Article 8 protects private *and* family rights; the family outing was thus protected [61].

Children tend to not be given much of a choice. Not seeking publicity.

16 y/o awarded more damages than the baby twins. Seems to be that being a child helps you cross the 'line' into Article 8 territory; but in terms of damages, age counts as you are more cognizant of the breach of privacy (more embarrassment, stress, etc.) [31-3].

16

Khuja (formerly known as PNM) v The Times (2017)

PNM arrested by the police --> organised child sex grooming/prostitution in the Oxford area. Questioned + passport impounded. Eventually released and not charged of any crime.

A separate trial, later on, occurs (in relation to the same Operation) --> in that trial a witness gives evidence. Whilst giving evidence refers to abuser with PNM's first name. Counsel identifies PNM in full at the trial - in open court.

Judge agrees to prohibit any report in using PNM's name whilst police decided whether PNM would be charged. Eventually not charged; once police notified this --> newspapers want to publish the story (public interest).

UKSC decided that PNM did not have a reasonable expectation of privacy in this instance. Most people understand that you are innocent until proven guilty (Lord Sumption at [66]). 'Open Justice' necessary + fair publication of press hearings (Lord Sumption at [14]). This was because the Lord was worried about press censorship (regarding open justice) if ruled the other way [16].

Part of the price to be paid in open justice that sometimes nasty things are said about others in Court, especially when the case concerns allegations of child abuse (public interest). Publications serve the wider role of inviting potential witnesses to come forward [33]. This has been subject to *strong dissents* -

What the law says is different from what people perceive. Innocent until proven guilty --> in reality? (Lords Kerr and Wilson, dissenting, at [47]).

Detrimental effects of false accusations --> widespread belief that he was guilty of horrible crimes --> affect his family life (what about their Article 8 rights?) (Lords Kerr and Wilson, dissenting, at [58]).

Lord Sumption starts from a fundamental rule of law;
Lords Wilson and Kerr start from a much more pragmatic, realistic point.

17

Sir Cliff OBE v BBC and SYP [2018]

BBC reporter discovered that Sir Cliff was suspected of abusing a 16 y/o boy. Approached police + pressured them. Police told him that there was to be an intended search. Agreed that BBC reporter would be given information as to when/where the search would take place. Big scoop for the BBC! A near-gleeful approach…

Had a helicopter + reporter outside the house. The lead story on the lunchtime news.
(This is just the search of a home…). TV drama?

Eventually, no charges are ever pressed against Sir Cliff. Completely innocent --> not even arrested for questioning.

The court found he did have a reasonable expectation of privacy. The key difference here was that this is not an open court situation (a 'prior stage'), as what happened in Khuja.

Mann J: prima facie starting point that there is a reasonable expectation, even though Sir Cliff put himself in the public eye (music) [248]. Think about the degree of surrender in public life + degree of intrusion. Remember: just because you're a public figure, does not mean you have Article 8 rights,

Also, circumstances + manner in which the BBC ran story counted. Sir Cliff did not even have a chance to seek an injunction. The 'heightened' sense of drama (helicopter footage, etc.) was also important --> it added to damages/sense of intrusion. Although according to the Justice even a
'low-level' intrusion would have been sufficient [318].

18

Axel Springer AG v Germany (2012) (ECJ)

Strasbourg 'relaxing' the Article 10 barrier by recognising that publications concerning sport/performing artists can also be protected (so not only political issues/crimes) [90].

Lays out the *balancing factors* for Article 10 balancing exercise:
1. Contribution to the debate of general interest [90]
2. The person is acting in public context/private individual; how well-known is the individual [91]
3. Prior conduct of the person concerned - have they courted publicity? [92]
4. Method of obtaining information and its veracity (truthfulness) [93]. This shows the importance of the press acting in good faith (the 'ethics' of journalism). In this case, the press did not do anything particularly 'wrong'; it was simply reporting a confession in Court. This thus 'tipped the balance'.
5. Content, form, and the consequences of publication. Ways in which photos/information are presented; dissemination, circulation figures, etc. (e.g. national or local newspaper) [94]

Springer moves away from the 'strict interpretation' in Hannover, specifically making a distinction between public and private figures. The public's right to be informed can extend to certain aspects of a public figure's private life, but this is a 'special scenario' (e.g. if the aim is simply to satisfy the curiosity of a particular readership, Article 10 is likely to not be engaged) [91].

In this case, C had previously given interviews but never disclosed drug problems. Thus not relevant in terms of prior conduct [92].

19

Gulati and others v MGN Ltd. (2015)

This case arose out of the phone-hacking scandal (2011).

Held that the trial judge was correct in stating that the Court wasn't limited to awarding damages for distress. Can also provide compensation for infringement of right via the misuse of information (Arden LJ at [45]). Arden LJ goes on to say at [47] that the C's had suffered "damage in that their private information has been misappropriated and had genuinely suffered considerable distress." Thus, damages also compensate *harm* caused to the claimants.

There therefore seems to be a relationship between MPI and PI (personal injury) cases; one should take into account the PI 'tariff'. However, the factors that are taken into account are materially different. So this is more of a 'general' relationship. PI>MPI in terms of damages awarded (because e.g. a disability is more important than an invasion of privacy) [61].


CoA further holds that the Court has the discretion to award a
one-off lump sum or for each invasion of privacy (as seen in this case) [64], [68].

Damages awarded by the ECHR tend to be lower than English Courts. This is due to the 'just satisfaction' requirement for the Strasbourg Court.

CoA held that English Courts are not bound to follow this approach.

Emphasised that MPI is a tort, and as such the measure of damages is more naturally a question for English domestic law. Arden LJ at [89]:

1. Convention important for the development of the tort; but now that it is a tort the conditions are governed by English law;

2. National Courts are better to award the adequacy of damages, reflecting scenarios

This reflects the approach of most modern cases on damages.