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Flashcards in Tort Law - Privacy Deck (201):
1

Section 12(3) HRA

No injunction order unless satisfied C is likely to obtain an injunction following trial

2

What case was the first explicit protection of the right to informational privacy by adaptation of BoC?

Campbell

3

Ferdinand v MGN judgment

D need only project an image undermined by his actions, and footballers are role models

4

What case showed there can be a commercial sale of the right to enforce a particular confidence?

Douglas v Hello! Ltd

5

Who was the only judge in Campbell to refer to misuse of private info as a tort?

Lord Nicholls

6

What case watered down Coco v AN Clark by allowing obligation to arise purely based on the confidential character of the information?

AG v Guardian Newspapers

7

Ferdinand v MGN on super-injunctions

Court may find public interest in publication, e.g. 'reformed' man, role model/hypocrisy

8

McKennitt v Ash

Court took up Nicholls' reference to misuse of PI as a tort in Campbell

9

Weller v Associated Newspapers general

LA cafe but published in UK

10

what are the guidelines on super-injunctions from H v News Group?

Courts should make public the fact that proceedings took place and the reasoning, and they should stipulate review for continued appropriateness

11

Lord Dyson in McKennitt v Ash

Absorbing Article 8 and 10 into a claim for MoPI

12

What section of the HRA provides the basis for argument that HRA has horizontal effect in privacy?

Section 6(3) - courts are a public authority

13

Von Hannover v Germany (second)

Ski resort and father

14

What judge in what case said that the 'extent of the qualification must be proportionate to the need' when balancing Article 8 and 10?

Hoffman in Campbell

15

Sections 1-3A Protection from Harassment Act 1997

Liability where C merely suffers upset, humiliation, alarm or distress

16

Vidal Hall v Google Inc general

Separate tort of misuse of private information confirmed

17

What does the case of Murray v Express Newspapers show about a reasonable expectation of privacy?

Enforces objective test and routine everyday public acts MAY attract reasonable expectation

18

Who called Hale's 'alternative' test in Campbell unnecessarily complex?

L&O

19

Who argues super-injunctions undermine normal commitment to open justice?

Zuckerman

20

How does Moreham show physical privacy can be just as important as informational privacy?

Information may only tell half the story - video of X in labour reveals MEDICAL info , but sensory information and invasion of physical privacy should also be considered

21

Campbell v MGN on 'setting the record straight'

C previously stated no drug problem

22

Von Hannover v Germany (first) judgment

Not part of a particular debate, so reasonable expectation

23

Morgan on HDE and courts in tort of misuse of private information

Failure of judiciary to engage on the issue if the 'fundamental problem with the privacy case law since October 2000'

24

When is the rule in Wilkinson v Downton invoked?

Remedy against harassment

25

Browne v Associated Newspapers

BP CEO gay

26

Wainwright v Home Office general

Prison strip search

27

Why does the conceptual gap still exist in BoC despite Voicemail Claimant v Newsgroup?

C still had to show PRIVATE info was obtained from the use of the senses, which can be difficult

28

Any interference with Article 8 and 10 needs to be what?

'Necessary in a democratic society' and proportional to objective

29

McClaren v News Group Newspapers general

Ex-manager of England football

30

Murray v Express Newspapers on two stage test

Objective test

31

Name two cases covering ECtHR decisions on Article 8

Peck v UK; Van Hannover v Germany

32

Hunter v Canary Wharf on nuisance

Only actionable by person with an interest in the land

33

X v Y judgment

Consider same issues as for defence of BoC - underlying issues of substance are the same when balancing the ECHR factors

34

What case confirmed that misuse of private information is a separate tort?

Vidal Hall v Google Inc

35

What did Hoffman say of the balancing exercise in Campbell?

'Extent of the qualification must be proportionate to the need'

36

What undermines defamation's potential in privacy?

The complete defence of truth

37

When is nuisance actionable?

Only by the person with an interest in the land

38

Name at least three defences to breach of confidence actions?

Immorality, public interest or other iniquity

39

Kaye v Robertson general

Actor injured, hospital photos

40

SOA legislative protection of physical privacy

Needs prosecution to establish a sexual motivation AND V needs to have been exposed intimately or on the loo

41

What gap does Moreham point to in intentional infliction of emotional distress?

satisfaction of criteria for physical privacy will be rare because hard to impute intention to cause harm if C intended to remain undetected

42

What American case is v similar to Kaye v Robertson, for comparison?

Barber v Time Inc

43

Tolley v JS Fry on defamation and privacy

Provides some protection when C is portrayed in a 'false light', but primarily a public commercial matter of C's market value

44

What judge in what case limited trespass to land and nuisance to 'such height as is necessary for the ordinary use and enjoyment of his land'?

Griffiths J in Bernstein v Skyviews

45

In what document is privacy in the US broken down into four narrower categories?

US Restatement of the Law of Torts

46

What does the case of Campbell show courts doing in regard to the countervailing factor of 'setting the record straight'?

Considering same issues of substance as for BoC, namely exposure of iniquity

47

Weller v Associated Newspapers judgment

C had a reasonable expectation in regard to UK publication - very artificial

48

A v B plc on countervailing factors and public interest

Wide definition of public interest - whatever people like (e.g. gossip)

49

Voicemail Claimant v Newsgroup Newspapers

Telephone hacking, BoC by obtaining and recording voicemails, suggesting BoC through use of senses rather than looking at docs

50

What three questions need to be asked when balancing Article 8 against other factors?

Is the Article engaged, was there a violation amounting to a violation of Article 8 and was the violation justified

51

What case said we should consider the same issues as for defence of BoC when determining balance of Article 8 and 10?

X v Y

52

What two cases explore remedies in misuse of private information actions?

Mosley v News Group and Mosley v UK

53

what did Hoffman note about the US system of privacy liability in Wainwright v Home Office?

Even there privacy is broken down into four narrower types in US Restatement of the Law of Torts

54

Von Hannover v Germany on ECtHR jurisprudence

ECJ will not intervene unless national courts do not go through the right analytical steps

55

Article 10

Freedom of expression

56

Spelman v Express Newspapers general

Child professional rugby

57

What case determined that the status of 'role model' extends after their position ends?

McClaren v News Group Newspapers

58

Ferdinand v MGN general

Footballer, family man but cheated

59

What judge in what case showed uneasiness about allowing D to rely on 'setting the record straight' for invasion?

Hale in Campbell

60

In reference to what did Campbell v MGN establish a different framework for private information cases?

Articles 8 and 10 of the Convention

61

What section in particular of the HRA may allow Convention to influence English law?

Section 2(1) HRA requiring courts to 'have regard' to ECtHR jurisprudence

62

Futile to continue super-injunction if name is disclosed

Giggs v News Group

63

What two cases, when compared, shows courts will allow Article 10 to weigh over 8 in the case of public space and interest?

Von Hannover v Germany

64

What type of claims does Campbell cover?

Private information cases

65

What took away the child reasonable expectation of privacy over health in Spelman v Express?

He was a child professional rugby player

66

What did L&O believe about public and private division?

Where the two collide, court will not apply both Campbell and Coco, but will treat the relationship of confidence as relevant to C's expectation of privacy

67

Baron Bernstein v Skyviews

'Such height as is necessary for the ordinary use and enjoyment of his land' per Griffiths J

68

What case showed the courts taking up Lord Nicholls' reference to misuse of PI as a tort in Campbell?

McKennitt v Ash

69

What was the 2-stage test in Campbell v MGN?

Reasonable expectation of privacy on the behalf of C and countervailing factors pushing balance in favour of D's Article 10 right

70

What type of claims does Coco v AN Clark cover after Campbell?

Public claims for breach of confidence

71

Wainwright v Home Office judgment

Lord Hoffman - right of privacy is only underlying value in law, not a principle of direct application

72

What American case shows the courts accepting invasion of private right and giving damages, rather than focusing on another developed case of action?

Barber v Time Inc

73

Why did L&O believe Hale's 'alternative test' in Campbell was unnecessarily complex?

X can publish if he DIDN'T know but Y cannot if he DID know.

74

Von Hannover v Germany (second) judgment

Public and societal interest so no reasonable expectation of privacy when balanced

75

Giggs v News Group

Futile to continue super-injunction if name is disclosed

76

Why did the Younger Committee reject new tort of invasion of privacy?

Concepts were 'ill-defined and unstable'

77

X v Y general

NHS AIDS doctors

78

What case said that it is not for the media 'to expose sexual conduct which does not involve any significant breach of the law'?

Mosley v News Group

79

What kind of action is a breach of confidence claim?

Equitable

80

Kaye v Robertson on claims

No claim merely for invasion of privacy

81

Albert v Strange judgment

Basis of injunction given as enforcement of property rights

82

What case made it clear the 2 stage test from Campbell is objective?

Murray v Express Newspapers

83

How did the Younger Committee define privacy?

'The right to determine for oneself how and to what extent information about oneself is communicated to others'

84

White v Bayley

Only physical invasions of POSSESSED land, not merely land USED by C, counts for trespass to land and nuisance

85

What is Moreham's position on private acts of surveillance/recording?

Shouldn't be treated any differently than photos

86

Campbell v MGN on breach of confidence requirements

Established a different framework for private information cases, proceeding by reference to Articles 8 and 10

87

H v News Group

Guidelines on super-injunctions

88

Wainwright v Home Officer on PHA

Per Lord Hoffman, doubtful if common law goes as far as PHA

89

K v News Group general

Entertainment industry, affair, woman lost job

90

What Committee defined privacy as 'the right to determine for oneself how and to what extent information about oneself is communicated to others'?

Younger Committee

91

what are the three requirements of breach of confidence?

Information has the 'necessary element of confidence about it', D is 'under an obligation of confidence' and D makes 'unauthorised use' of the information

92

Why was it found to be inappropriate to speak about a breach of confidence in cases like Campbell?

No confidential relationship

93

Why was a pre-publication notice remedy rejected in Mosley v UK?

Easier to get an injunction in privacy than defamation

94

What judge in what case said different topics attract different protection when considering countervailing factors in the Campbell test?

Lady Hale in Campbell v MGN

95

What two developments led to new tort of 'misuse of private information'?

ECHR and in equitable action for breach of confidence

96

HRH Prince of Wales v Associated Newspapers

Moreham believes this case shows courts recognising horizontal effect of Article 8

97

Article 8

Right to privacy

98

Van Hannover v Germany (first) on Article 8

ECJ recognised a positive obligation on state to have laws protecting an individual's private life

99

K v News Group Newspapers general

Celebrity, affair, children

100

Campbell v MGN on countervailing factors

Lady Hale said different topics attract different protection e.g. political speech at the top and gossip at the bottom

101

Murray v Express Newspapers general

Rowling

102

What case shows balance tips towards publication to place other events in context sometimes?

Browne v Associated Newspapers

103

Peck v UK judgment

No remedy for invasion of privacy, but violation of Article 8

104

Mosley v News Group per Justice Eady

Punitive damages could not be awarded because balance of Article 8 and 10 required any remedy to be proportionate to legitimate aim

105

what case showed the right to keep info private cannot be sold on?

Douglas v Hello! Ltd

106

What gap does Moreham point to in breach of confidence and misuse of private information?

Does not protect against act of recording

107

No injunction order unless satisfied C is likely to obtain an injunction following trial

Section 12(3) HRA

108

Why are the three defences to breach of confidence not required in a claim under Campbell?

Three-stage analysis to balance Article 8 and 10 is sufficient

109

How did Vidal Hall v Google divide between privacy and confidence?

Privacy is when specific info is private to C, and confidence is when an individual is not supposed to spread info confided in them by C

110

Browne v Associated Newspapers judgment

Allowed publication of homosexuality or other allegations would make no sense

111

Google Spain v Agencia Espanola

'The right to be forgotten' might expand reasonable expectation of privacy, although not explicitly granted

112

What case showed neither Article 8 nor 10 automatically prevail in the balancing exercise?

Campbell v MGN

113

Mosley v News Group on revelation of criminality as a countervailing factor

Only certain kinds of criminality justify invasion of privacy, and higher protection to sexual relations than seen in A v B because 'not for the media to expose sexual conduct which does not involve any significant breach of the law'

114

Murray v Express Newspapers on Hale's 'alternative' test in Campbell

Thought Nicholls' and Hale's test to be the same in Campbell

115

What case showed the courts finding no remedy for invasion of privacy, but a violation of Article 8?

Peck v UK

116

Campbell v MGN on revelation of criminality as a countervailing factor

Revelation in itself cannot justify invasion

117

Theakston v MGN judgment

Per Ousley J, there is a spectrum of sexual relationships in a hierarchy of protection - denied injunction of description of brothel activities, but allowed for photos

118

What is trespass to the person?

A type of harassment claim

119

What 'alternative' test did Hale give in Campbell?

Whether D ought or did know of a reasonable expectation of privacy

120

What two judges gave the two-stage test of misuse of private information in Campbell v MGN?

Lord Hoffman and Nicholls

121

Von Hannover v Germany (first)

Daily life

122

How many occasions of harassment are needed before you can use PHA?

At least two

123

What case defined 'role model' as a countervailing factor?

McKennitt v Ash

124

Why was there a super-injunction in K v News Group?

Effect on C's children and no 'debate of great interest', although child welfare is not a trump care

125

What does the HRA 1998 show?

Right to privacy is at the forefront of G's agenda, incorporating Article 8 into private life

126

Why did Hoffman in Wainwright not believe common law goes as far as PHA in trespass to the person?

P adopted cautious approach by reference to a 'course of conduct', so common law should too

127

AG v Guardian Newspapers

Watered down Coco v AN Clark privacy requirements by allowing an obligation to arise purely on the basis f the confidential character of information - no need of relationship

128

How does Moreham argue courts could use Tchenguiz to extend misuse of private info?

Recognise misuse to acquire info by other means, then drop language of info altogether and recognise unwanted watching, listening and recording are breaches themselves

129

Theakston v MGN general

Brothel activities

130

What case shows the courts are unwilling to say the intrusive way info was obtained without more can make it confidential?

Coogan v News Group

131

Mosley v News Group

Formula 1 sadomasochism

132

What case showed only certain kinds of criminality justify an invasion of privacy?

Mosley v News Group

133

What case showed the ECJ recognising a positive obligation on state to have laws protecting an individuals private life?

Van Hannover v Germany

134

What two cases show two limitations on trespass to land and nuisance?

White v Bayley and Baron Bernstein v Skyviews

135

What judge and in what case suggested taking a photo can be an invasion?

Hale in Campbell v MGN

136

Mosley v UK general

Pre-publication noticed from D

137

Name two American academics who advocate that individual haphazard development of 'privacy' is merely enforcement of more general right of individual to be 'let alone'?

Warren and Brandeis

138

What was the basis of the injunction in Albert v Strange?

Enforcement of property rights

139

Spelman v Express Newspapers judgment

Took away reasonable expectation of privacy of health as sportsmen and women's health are regularly scrutinised

140

Barber v Time Inc

V similar AMERICAN case to Kaye - invasion of private right and thus damages

141

What case shows courts may find BoC through use of senses?

Voicemail Claimant v Newsgroup Newspapers

142

What case made it clear there was no tort of 'invasion of privacy'?

Wainwright v Home Office

143

What does Kaye v Robertson show the courts doing?

Looking for established causes of action to develop 'privacy'/breach of confidence, i.e. through commercial exploitation of a situation

144

What did Hale say in Campbell on 'setting the record straight'?

Was it really necessary?

145

What is Moreham's suggestion for reform in this area?

Pull together all the different ways English law protects privacy under a general heading of protection against privacy

146

Kaye v Robertson judgment

Law focused on commercial exploitation of his situation, not on protection of personal space and circumstances away from public eyes

147

What do L&O argue about HRA?

Its passage and subsequent recognition of tort of misuse of private information was purely coincidental - English law always recognised FOUNDATIONS of Article 8 and 10, but not expressed through Convention

148

What kind of cases does an action of breach of confidence usually respond to?

Trade secrets

149

What was the split in Campbell?

3:2, but all agreed on relevant principles

150

Why were guidelines given on super-injunctions?

To minimise encroachment on open justice

151

What did Hoffman suggest the impact of s.6(3) HRA could be on tort of private information?

Encourages consideration of why HRA impact limited to public issues, which should then lead to expansion of existing principles to private area

152

What case introduced the idea of a spectrum of sexual relationships in a hierarchy of protection?

Theakston v MGN

153

Douglas v Hello! Ltd judgment

Right to keep info private cannot be sold on, but does not preclude commercial sale of right to enforce a confidence

154

How do Warren and Brandeis explain Albert v Strange?

Real basis was protection of privacy, else you can't explain the injunction against both exhibition AND catalogue of etchings

155

Kaye v Robertson on the courts approach in privacy

Scatter-gun approach

156

McClaren v News Group Newspapers judgment

Status of role model extended after his position ended

157

How do Warren and Brandeis see the individual haphazard development of 'privacy'?

Enforcement of a more general right of the individual to be 'let alone'

158

Campbell v MGN on balancing factors

Neither Article 8 nor 10 automatically prevail

159

Wilkinson v Downton general

Practical joke on wife - broken legs of husband

160

What case does Moreham refer to in order to show courts have recognised (allegedly) the horizontal effect of Article 8?

HRH Prince of Wales v Associated Newspapers

161

What did the Younger Committee suggest?

New set of criminal offences and tortious liability, e.g. unlawful surveillance by a technical device. NOT implemented.

162

Mosley v UK judgment

UK and ECtHR rejected the need for a pre-publication notice remedy - easier to get an injunction in privacy than defamation

163

Peck v UK general

CCTV, suicide attempt

164

Why are courts vague about whether they find themselves bound under s.6 to incorporate Convention?

Fear over increase of claims - every single time a decision involved the Convention between individuals, there would be arguments over application of Convention

165

Why is ECtHR jurisprudence unlikely to affect private information?

Not binding on national courts and HRA only provides express remedy for violation by a public authority

166

In what case did the court say they were absorbing Article 8 and 10 into a claim for MoPI, and what judge

Lord Dyson in McKennitt v Ash

167

Coogan v News Group

Courts are unwilling to say intrusive way info was obtained without more can make it confidential

168

What do the ECtHR call a 'decisive factor' when considering a super-injunction claim?

Whether the information contributes to a 'debate of great interest'

169

What are two limitations on trespass to land and nuisance?

Only physical invasion of POSSESSED land, and only up to 'such height as is necessary for the ordinary use and enjoyment of his land'

170

What case shows the courts do not confine balancing of Article 8 and 10 to the parties in the litigation?

K v News Group Newspapers

171

Why does Moreham support Hale's 'alternative' test in Campbell?

Too harsh to hold D liable if the info was innocuous

172

What did Morgan call the 'fundamental problem with the privacy case law since October 2000'?

Failure of judiciary to engage on the issue of HDE of HRA

173

What does Weller v Associated Newspapers show the courts doing?

Sidestepping lack of LA law on the matter

174

What case confirmed AG v Guardian Newspapers?

Campbell v MGN

175

How does Moreham argue individuals trying to claim for privacy are treated by the courts?

Treated as 'objects or specimens'

176

McKennitt v Ash on role model as a countervailing factor

'Role model' is a person who, due to their position, is expected to have a higher moral standard than the average person

177

What case showed damages not being awarded because balancing required remedy to be proportionate to legitimate aim?

Justice Eady in Mosley v News Group

178

Plon (Societe) v France general

Former French president

179

What test did Lord Nicholls reject in Campbell?

'Seriously offensive' test from US as too stringent

180

What do L&O suggest we focus on in the first stage of the Campbell test?

C's expectation of privacy, not the nature/circumstances/quality of publication

181

What approach have the courts adopted in privacy?

'Scatter-gun' approach - firing a number of causes of action in the hope that one hits the target

182

Younger Committee on future possibility in privacy

Rejected a new tortious cause of action for invasion of privacy

183

What do L&O suggest about Peck v UK?

After Campbell, he may have been able to prove wrongful disclosure of private information

184

Duchess of Argyll v Duke of Argyll

Breach of confidence is available for trade secrets and personal confidences

185

What case showed the courts placing higher protection on sexual relations than in A v B?

Mosley v News Group

186

Albert v Strange general

Etchings by Queen Victoria

187

Name at least three countervailing factors taken into account for Campbell test

Public interest, revelation of criminality, 'setting the record straight' and role model/public figure/hypocrisy

188

From what case come the 3 requirements of breach of confidence?

Coco v AN Clark

189

Wilkinson v Downton

Act has to be 'calculated' and C suffered ACTUAL damage

190

Campbell v MGN general

Narcotics, new tort of misuse of private information

191

What did the court emphasise in K v News Group?

Effect on C's children and contributed to no 'debate of great interest', which is a 'decisive factor' according to ECtHR

192

What case gave guidelines on super-injunctions to minimise encroachment on open justice rules?

CoA in H v News Group

193

Who argued that where public and private collide in privacy, courts will not apply both Campbell and Coco?

L&O

194

How does Moreham argue courts could extend reasonable expectation of privacy to situations where C was looked at, listened to or recorded without leave?

Through horizontal effect of Article 8

195

What case suggested the impact of ECtHR jurisprudence will not be significant on privacy law?

Von Hannover v Germany

196

Imerman v Tchenguiz on extending breach of confidence

Breach of confidence should be extended to the acquisition of private information by other means, beyond looking at confidential documents

197

What does the case of Plon (Society) v France) suggest about ongoing influence of ECtHR jurisprudence?

May recognise privacy after death in UK

198

What test do they use in the US for privacy claims?

'Seriously offensive' test

199

K v News Group Newspapers judgment

Courts should not confine their balancing to only the parties in the litigation

200

What judge in what case suggested section 6(3) HRA has the subtle effect of encouraging consideration of why privacy only applies to public issues, leading to expansion?

Hoffman in Campbell

201

Douglas v Hello! Ltd general

Wedding photographs

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