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Chapter 11
PROTECTING CONFIDENTIAL AND
PRIVATE INFORMATION FROM
UNAUTHORISED DISCLOSURE
INFORMATIONAL PRIVACY
11.1 The protection of privacy is a serious issue in celebrity culture. This chapter is
about the law relating to what is loosely termed informational privacy. This covers the
sort of damaging and distressing information celebrities often want kept out of the
papers. Underlying this developing area of law is the recognition of the fundamental
human right to privacy and in particular the individual right to protection against
unwarranted intrusion into personal space or interference with emotional well-being. It
is these areas of protection, rather than protection of reputation1 or image as such, that
are the concern of this chapter.
11.2 The unauthorised publication of private information is controlled by rules
developed to reflect the right to privacy and the competing right to freedom of speech.
The rules have been strongly influenced by Arts 8 and 10 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR); by decisions
of the European Court of Human Rights (ECtHR); and by the explanations and
pronouncements of our own judges. Because the law is developing and changing it is
necessary to focus on what judges have said in recent privacy cases particularly since the
House of Lords decision in Campbell v MGN Limited.2
THE CELEBRITY PERSONA
11.3 Celebrities thrive on publicity and, for that reason, largely enjoy a different
relationship with the media from that of the general public. Newspapers sell copy by
publishing (sometimes exposing) intimate details of the lives of well-known celebrities.
Statements made about Ms Naomi Campbell in the House of Lords revealed the current
attitude to celebrity culture. Lord Hoffman in Campbell described her as:3
‘… a famous fashion model who lives by publicity. What she has to sell is herself: her
personal appearance and her personality. She employs public relations agents to present her
personal life to the media in the best possible light just as she employs professionals to advise
her on dress and make-up. That is no criticism of her. It is a trade like any other. But it does
mean that her relationship with the media is different from that of people who expose less of
their private life to the public.’
1
2
3
Although some European cases suggest that Art 8 protects ‘reputation’ broadly understood: see Buxton LJ
in McKennitt v Ash [2006[ EWCA Civ 1714, at [80].
[2004] UKHL 22.
Campbell v MGN Limited [2004] UKHL 22, at [37].
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11.4 The importance of a good reputation to the celebrity image was emphasised by
Lord Hope in Campbell who said that the business of fashion modelling:4
‘… in which … Naomi Campbell has built up such a powerful reputation internationally, is
conducted under the constant gaze of the media. It is also highly competitive. It is a context
where public reputation as a forceful and colourful personality adds value to the physical
appearance of the individual. Much good can come of this, if the process is carefully and
correctly handled …’
11.5 Two reputations are likely to be put at stake when there is unauthorised
publication of personal information – that of the celebrity wishing to restrain
publication and uphold his privacy and image, on the one hand, and that of the
publisher wishing to increase circulation, on the other. A sense of reality and perspective
is necessary when endeavouring to evaluate and strike a balance between the two
interests at stake. Lady Hale said in Campbell that it was:5
‘… a prima donna celebrity against a celebrity-exploiting tabloid newspaper. Each in their
time has profited from the other. Both are assumed to be grown-ups who know the score. On
the one hand is the interest of a woman who wants to give up her dependence on illegal and
harmful drugs and wants the peace and space in which to pursue the help which she finds
useful. On the other hand is a newspaper which wants to keep its readers informed of the
activities of celebrity figures, and to expose their weaknesses, lies, evasions and hypocrisies.
This sort of story, especially if it has photographs attached, is just the sort of thing that fills,
sells and enhances the reputation of the newspaper which gets it first.’
ARTICLES 8 AND 10 OF THE ECHR
11.6 Articles 8 and 10 of the ECHR, as set out in the Human Rights Act 1998 (HRA
1998), Sch 1, Pt 1, are the foundation of the law’s development of protection for private
information. The interaction of those rights and the qualifications made to them were
central to the decision in Campbell.6 The right of privacy and the right of freedom of
speech are enshrined in Arts 8 and 10 respectively and these Articles are the starting
point for any discussion on privacy law.
11.7
Article 8 provides:
‘1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.’
11.8
4
5
6
Article 10 provides:
At [80].
At [143].
Campbell v MGN Limited [2004] UKHL 22.
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‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be
subject to such formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime, for the protection of health or
morals, for the protection of rights of others, for the prevention of disclosure of information
received in confidence, or for maintaining the authority and impartiality of the judiciary.’
THE INCORPORATION OF ARTS 8 AND 10 OF THE ECHR
INTO ENGLISH LAW
11.9 Private information has been identified in human rights law as worthy of
protection; the equivalent of Art 8 has been enacted as part of English law and the
values underlying Arts 8 and 10 are now applied equally to disputes between individuals
as between individuals and the state.7 Even now that the equivalent of Art 8 has been
enacted as part of English law, it is not directly concerned with the protection of privacy
against private persons or corporations but is, by virtue of s 6 of HRA 1998, a
guarantee of privacy only against public authorities. Since human rights law has
identified private information as something worth protecting as an aspect of human
autonomy and dignity, it was not logical for a person to have less protection against a
private individual than against the state in respect of the unauthorised publication of
personal information.8
11.10 The positive obligations imposed on the state by Art 8 to promote the interests of
private life and the right of the individual to complain if that right is interfered with
were considered by Buxton LJ in McKennitt v Ash,9 who said the individual is entitled to
complain against the state if his private life is interfered with. Article 8 imposes not
merely negative but also positive obligations on the state: to respect, and therefore to
promote, the interests of private and family life. This means a citizen can complain
against the state about breaches of his private and family life committed by other
individuals. That, as Buxton LJ noted, has been Convention law at least since Marckx v
Belgium.10 Buxton LJ referred to a particularly strong statement of the obligation to be
found in X and Y v Netherlands.11
11.11 Although there has been difficulty explaining how that state obligation is
articulated and enforced in actions between private individuals, Buxton LJ thought12
that judges of the highest authority have concluded that that follows from s 6(1) and (3)
of HRA 1998 which placed on the courts the obligations appropriate to a public
authority. Buxton LJ continued13 that in order to find the rules of the English law of
breach of confidence the courts have to look in the jurisprudence of Arts 8 and 10 which
are now not merely of persuasive or parallel effect but, as Lord Woolf said in A v
7
8
9
10
11
12
13
Lord Nicholls in Campbell v MGN Limited [2004] UKHL 22, at [17] and [18].
Lord Hoffman in Campbell, at [49] and [50].
See McKennitt v Ash [2006] EWCA Civ 1714, at [9].
(1979) 2 EHRR 330.
(1985) 8 EHRR 235.
See McKennitt v Ash, at [10].
At [11].
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B plc,14 are the very content of the domestic tort that the English court has to enforce.
Buxton LJ referred to Lady Hale in Campbell;15 Lord Phillips of Worth Matravers in
Douglas v Hello!;16 and in particular the following statement of Lord Woolf in A v
B plc:17
‘Under section 6 of the 1998 Act the court, as a public authority, is required not to act “in a
way which is incompatible with a Convention right”. The court is able to achieve this by
absorbing the rights which articles 8 and 10 protect into the long-established action for
breach of confidence. This involves giving a new strength and breadth to the action so that it
accommodates the requirements of those articles.’
CAMPBELL V MGN (HL) AND VON HANNOVER V GERMANY
(ECTHR)
11.12 Shortly after Campbell v MGN18 the ECtHR delivered its decision in Von
Hannover v Germany19 and issues arose about the relationship between these two
important decisions. The Court of Appeal in Murray v Big Pictures (UK) Limited20
confirmed21 it was bound by Campbell, the House of Lords having made it clear in Kay
v Lambeth LBC,22 that in the event of conflict between a decision of the House and a
later decision of the ECtHR, lower courts, including the Court of Appeal, must follow
the former.23 The primary focus of the Court of Appeal in Murray was, therefore, upon
the speeches in Campbell. In a penetrating analysis of where the law had reached after
Campbell Lord Steyn in the House of Lords in Re S (a child) said:24
‘[17] The interplay between articles 8 and 10 has been illuminated by the opinions in the
House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the
decision of the House on the facts of Campbell and the differences between the majority and
the minority are not material. What does, however, emerge clearly from the opinions are four
propositions. First, neither article has as such precedence over the other. Secondly, where the
values under the two articles are in conflict, an intense focus on the comparative importance
of the specific rights being claimed in the individual case is necessary. Thirdly, the
justifications for interfering with or restricting each right must be taken into account.
Finally, the proportionality test must be applied to each. For convenience I will call this the
ultimate balancing test. This is how I will approach the present case.’
‘OLD-FASHIONED BREACH OF CONFIDENCE’
11.13 It has long been the case that, in certain circumstances, types of private
information have received protection from disclosure by the courts. This protection was
primarily based on the claim for breach of confidence (often now referred to as
14
15
16
17
18
19
20
21
22
23
24
[2002] EWCA Civ 337, [2003] QB 195, at [4], [2002] 2 All ER 545.
At [132].
At [53]; Douglas v Hello! [2005] EWCA Civ 595.
[2002] EWCA Civ 337, [2003] QB 195, at [4], [2002] 2 All ER 545.
[2004] UKHL 22.
Von Hannover v Germany (2004) 40 EHRR 1.
[2008] EWCA Civ 446, at [3], per Buxton LJ.
At [35].
[2006] UKHL 10, [2006] 2 AC 465.
See per Lord Bingham at [43]–[44] in a passage quoted by the judge at [61].
[2005] 1 AC 593.
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‘old-fashioned breach of confidence’ in order to distinguish it from the newer extended
form of breach of confidence which embraces purely private information). Previously,
private information was protected from disclosure only if it could be categorised as
‘confidential information’, that is to say, information which had been disclosed in
circumstances importing an obligation of confidence. Under old-fashioned breach of
confidence information was initially protected if it had been disclosed in violation of a
confidential relationship rather than because it was, by its very nature, private.
11.14 Private information is now protected without having to show that it has been
disclosed in violation of a pre-existing confidential relationship or of an obligation of
confidence. Information which is by its nature private will be protected from disclosure;
how it was obtained is of secondary importance. The protection afforded to private
information is under the umbrella of the cause of action for breach of confidence. This
cause of action (still referred to as ‘breach of confidence’) in consequence now has two
distinct limbs:
•
the original limb encompassing old-fashioned breach of confidence; and
•
the new law limb affording protection to personal information because it is private.
11.15 It has been said that ‘shoehorning’ private information into breach of confidence
has been difficult because the concept of confidential information and the concept of
private information are quite different. Lord Hoffman in Campbell explained the
transformation of the cause of action for breach of confidence in order to extend
protection to purely private information:25
‘… the equitable action for breach of confidence … has long been recognised as capable of
being used to protect privacy. Thus in the seminal case of Prince Albert v Strange (1849) 2 De
G & Sm 293, 1 Mac & G 25 the defendant was a publisher who had obtained copies of
private etchings made by the Prince Consort of members of the royal family at home. The
publisher had got them from an employee of a printer to whom the Prince had entrusted the
plates. Vice-Chancellor Knight-Bruce, in granting an injunction restraining the publication
of a catalogue containing descriptions of etchings, said (2 De G & SM 293, 313) that it was
–
“an intrusion – an unbecoming and unseemly intrusion … offensive to that inbred
sense of propriety natural to every man – if, intrusion, indeed, fitly describes a sordid
spying into the privacy of domestic life – into the home (a word hitherto sacred
among us) …”
… although the action for breach of confidence could be used to protect privacy in the sense
of preserving the confidentiality of personal information, it was not founded on the notion
that such information was in itself entitled to protection … equity traditionally fastens on
the conscience of one party to enforce equitable duties which arise out of his relationship
with the other. So the action did not depend upon the personal nature of the information …
but upon whether a confidential relationship existed between the person who imparted the
information and the person who received it. Equity imposed an obligation of confidentiality
upon the latter and (by a familiar process of extension) upon anyone who received the
information with actual or constructive knowledge of the duty of confidence.’
25
[2004] UKHL 22, at [43] and [44].
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The three ‘limiting principles’ which apply to breach of confidence
11.16 Whether an ‘old-fashioned’ breach of confidence should have the effect of
restraining publication will depend upon whether any of the three ‘limiting principles’
apply:
•
first, that breach of confidence only protects information which is truly
confidential and has not entered the public domain;
•
secondly, that breach of confidence does not apply to trivial or useless
information; and
•
thirdly, that the public interest in maintaining the confidence may be outweighed
by an opposing public interest in publication.
11.17 The third, often referred to as the iniquity defence, is probably the most
important limiting principle. The classic exposition of how the limiting principles come
into play was given by Lord Goff in the Spycatcher litigation:26
‘•
•
•
The first limiting principle (which is rather an expression of the scope of the duty) …
is that the principle of confidentiality only applies to information to the extent that it
is confidential. In particular, once it has entered what is usually called the public
domain (which means no more than that the information in question is so generally
accessible that, in all the circumstances, it cannot be regarded as confidential) then, as
a general rule, the principle of confidentiality can have no application to it. …
The second limiting principle is that the duty of confidence applies neither to useless
information, nor to trivia.
The third limiting principle is of far greater importance. It is that, although the basis
of the law’s protection of confidence is that there is a public interest that confidences
should be preserved and protected by the law, nevertheless that public interest may be
outweighed by some other countervailing public interest which favours disclosure.
This limitation may apply … to all types of confidential information. It is this limiting
principle which may require a court to carry out a balancing operation, weighing the
public interest in maintaining confidence against a countervailing public interest
favouring disclosure.
Embraced within this limiting principle is, of course, the so called defence of iniquity. In
origin, this principle was narrowly stated, on the basis that a man cannot be made “the
confidant of a crime or a fraud”: see Gartside v Outram (1857) 26 LJ Charity 113, 114, per
Sir William Page Wood V-C. But it is now clear that the principle extends to matters of
which disclosure is required in the public interest: see Beloff v Pressdram Ltd [1973] 1 All ER
241, 260, per Ungoed-Thomas J, and Lion Laboratories Ltd v Evans [1985] QB 526, 550, per
Griffiths LJ. It does not however follow that the public interest will in such cases require
disclosure to the media, or to the public by the media. There are cases in which a more
limited disclosure is all that is required: see Francome v Mirror Group Newspapers Ltd [1984]
1 WLR 892.’
11.18 The general ECtHR view, which tended against the suppression of publication of
information which is of genuine public interest, was referred to in HRH Prince of Wales
v Associated Newspapers Limited,27 where the Court of Appeal said that where the
information relates to a matter of major public concern, even medical confidentiality
26
27
A-G v Guardian Newspapers (No 2) [1990] 1 AC 109, at 282B–282F.
[2006] EWCA Civ 1776, at [50]–[55].
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may not prevail: Editions Plon v France.28 However, it was pointed out that this did not
assist in determining what weight should be given to the fact that the publication under
consideration involves ‘the disclosure of information received in confidence’ and that no
ECtHR decision had been cited where this question received express consideration,
other than that given to medical confidentiality in Editions Plon v France.
11.19 Before HRA 1998 came into force, the publication of information could be
justified on public interest grounds in English law even if it had been disclosed in breach
of confidence in the following circumstances:
•
initially under the so-called ‘iniquity rule’ meaning that confidentiality could not
be relied upon to conceal wrongdoing; and
•
later, in Lion Laboratories Ltd v Evans,29 when a more general test of public
interest was upheld.
11.20 In the Lion case Griffiths LJ held30 that the defence of public interest was well
established in actions for breach of confidence and referred to circumstances in which it
might be ‘vital in the public interest’ to publish confidential information. Confidentiality
thus will not be used to suppress disclosure of wrong doing or criminality (the so-called
‘iniquity rule’) nor, under the less stringent rule, if the circumstances show that
publication is ‘vital in the public interest’. Before HRA 1998 came into force publication
of information might be suppressed if it was received in confidence regardless of
whether any right to privacy under Art 8 could be invoked.
The public interest and contractual obligations of confidence
11.21 The underlying test when determining whether publication of information
arising from such relationships should be suppressed is whether the restriction on
freedom of expression is necessary in a democratic society. It is important to note that
the test is not whether the information is of public interest but whether, in all the
circumstances, it is in the public interest that the duty of confidence should be breached.
It must be shown that there is a stronger public interest in publication than in upholding
the obligation of confidence involved. It is in the public interest that obligations of
confidence arising from contractual relationships should be rigorously upheld,
particularly where someone has expressly agreed to maintain privacy in respect of
specified information. Since the test is one of proportionality significant, often decisive,
weight is given to the fact that confidential relationships are normally sacrosanct. An
obligation of confidence based on a contractual relationship will be particularly strong
and, if the information is private as well, even stronger. The outcome of the balancing
exercise, as usual, will depend on the facts of the case.
BREACH OF CONFIDENCE AND THE PROTECTION OF
PRIVATE INFORMATION: TWO MAJOR DEVELOPMENTS
11.22 The two major developments which transformed the cause of action for breach
of confidence so that it came to embrace private, in addition to confidential,
28
29
30
(2004) 42 EHRR 705.
[1985] QB 526.
At p 550.
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information were described by Lord Hoffman in Campbell31 as typical examples of the
capacity of the common law to adapt itself to the needs of contemporary life:
•
one has been an acknowledgement of the artificiality of distinguishing between
confidential information obtained through the violation of a confidential
relationship and similar information obtained in some other way; and
•
the second has been the acceptance, under the influence of human rights
instruments such as Art 8 of the ECHR, of the privacy of personal information as
something worthy of protection in its own right.
First: violation of a confidential relationship is no longer required
11.23 To establish a claim for breach of confidence it used to be necessary to show, first
that the information in question was confidential and, secondly, that it had been
disclosed in circumstances which imported an obligation of confidence – usually by
showing that the information had been obtained in violation of a confidential
relationship. The requirement to establish a violation of a confidential relationship was
eventually dropped and information was protected if it could be shown that it was
obviously confidential. The focus had thus shifted from the confidential relationship to
the confidential nature of the information under consideration. This development was
described by Lord Nicholls in Campbell v MGN Limited:32
‘[13] … The breach of confidence label harks back to the time when the cause of action
was based on improper use of information disclosed by one person to another in confidence.
To attract protection the information had to be of a confidential nature. But the gist of the
cause of action was that information of this character had been disclosed by one person to
another in circumstances “importing an obligation of confidence” even though no contract
of non-disclosure existed: see the classic exposition by Megarry J in Coco v A N Clark
(Engineers) Ltd [1969] RPC 41, [1968] FSR 415, 47–48. The confidence referred to in the
phrase “breach of confidence” was the confidence arising out of a confidential relationship.’
11.24 Lord Goff of Chieveley in A-G v Guardian Newspapers Ltd (No 2)33 gave, as
illustrations of cases in which it would be illogical to insist upon violation of a
confidential relationship, the ‘obviously confidential document … wafted by an electric
fan out of a window into a crowded street’ and the ‘private diary … dropped in a public
place’ and formulated the principle as being that ‘a duty of confidence 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’.
11.25 This statement of principle, which omits the requirement of a prior confidential
relationship, was accepted as representing current English law by the ECtHR in Earl
Spencer v United Kingdom34 and was applied by the Court of Appeal in A v B plc35 and
is now firmly established.
31
32
33
34
35
[2004] UKHL 22, at [46].
At [13].
[1990] 1 AC 109, at 281, described by Lord Hoffman in Campbell v MGN [2004] UKHL 22, at [47].
(1998) 25 EHRR CD 105.
[2003] QB 195, at 207.
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Secondly: personal private information protectable in its own right
11.26 Once breach of confidence came to protect information solely because it was
confidential it became possible to include purely private information within the ambit of
protection irrespective of whether it was confidential.36 The courts, under pressure from
Europe not to act incompatibly with convention rights, developed the claim for breach
of confidence so that it extended protection to purely private information. Lady Hale
explained this development in Campbell as follows:
‘[132] … [t]he [Human Rights Act 1998] does not create any new cause of action between
private persons. But if there is a relevant cause of action applicable, the court as a public
authority must act compatibly with both parties’ Convention rights. In a case such as this,
the relevant vehicle will usually be the action for breach of confidence, as Lord Woolf CJ
held in A v B plc [2002] EWCA Civ 337, [2003] QB 195, 202, para 4:
“[Articles 8 and 10] have provided new parameters within which the court will decide,
in an action for breach of confidence, whether a person is entitled to have his privacy
protected by the court or whether the restriction of freedom of expression which such
protection involves cannot be justified. The court’s approach to the issues which the
applications raise has been modified because, under section 6 of the 1998 Act, the
court, as a public authority, is required not to ‘act in a way which is incompatible with
a Convention right’. The court is able to achieve this by absorbing the rights which
articles 8 and 10 protect into the long-established action for breach of confidence.
This involves giving a new strength and breadth to the action so that it accommodates
the requirements of these articles.”
[133] The action for breach of confidence is not the only relevant cause of action: the
inherent jurisdiction of the High Court to protect the children for whom it is responsible is
another example: see In Re S (a child) (identification: restrictions on publication) [2003]
EWCA Civ 963, [2003] 3 WLR 1425. But the courts will not invent a new cause of action to
cover types of activity which were not previously covered: see Wainwright v Home Office
[2003] 3 WLR 1137 … That case indicates that our law cannot, even if it wanted to, develop
a general tort of invasion of privacy. But where existing remedies are available, the court not
only can but must balance the competing Convention rights of the parties.’
11.27 The absorption or ‘shoehorning’ of the right to privacy into the ambit of
protection afforded by breach of confidence was not an easy fit. This was because
breach of confidence was extended to cover situations where there was no pre-existing
relationship of confidence and where the information in question was not confidential
as traditionally understood. This uneasiness was described by Buxton LJ in McKennitt v
Ash:37
‘ii) … in developing a right to protect private information … the English courts have to
proceed through the tort of breach of confidence, into which the jurisprudence of arts 8 and
10 has to be ‘shoehorned’: Douglas v Hello! (No 3) [2005] EWCA Civ 595, [2006] QB 125,
53, [2005] 4 All ER 128.
iii) That feeling of discomfort arises from the action for breach of confidence being
employed where there was no pre-existing relationship of confidence between the parties, but
the “confidence” arose from the Defendant having acquired by unlawful or surreptitious
36
37
This is because it was no longer necessary to show violation of a pre-existing relationship of confidence.
[2006] EWCA Civ 595, at [8].
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means information that he should have known he was not free to use: as was the case in
Douglas, and also in Campbell v MGN [2004] UKHL 22, [2004] 2 AC 457, [2004] 2 All ER
995 …’
11.28 Breach of confidence was expanded to cover situations where purely private
information was ‘purloined’, for example, a telephoto lens shot of a celebrity at home by
the pool. Despite the absence of a confidential relationship or an obligation of
confidence, a claim in respect of the publication of such a photograph could now be
made.
11.29 An important distinction, however, remains between the situation where there
has been purloining of private information where no confidential relationship is
involved on the one hand and the situation where there has been a violation of a
pre-existent confidential relationship on the other. The latter case (as indicated above) is
often referred to as ‘old-fashioned breach of confidence’. In McKennitt v Ash,
Buxton LJ specifically pointed out that the nature of the claim in that case involved
old-fashioned breach of confidence and distinguished it from the new form of
complaint where no confidential relationship was involved:38
‘v) … the complaint here is of what might be called old-fashioned breach of confidence by
way of conduct inconsistent with a pre-existing relationship, rather than simply of the
purloining of private information.’
11.30 For the new form of complaint – purloining of private information – what
matters is that the information disclosed is private and not public. Lord Hope made this
clear in Campbell v MGN Ltd:
‘[92] The underlying question in all cases where it is alleged that there has been a breach of
the duty of confidence is whether the information that was disclosed was private and not
public. There must be some interest of a private nature that the claimant wishes to protect: A
v B Ltd [2003] QB 195,206, para 11(vii).’
The relevance of establishing that information was disclosed in the
course of a relationship of confidence
11.31 Sir Anthony Clarke MR stated in Lord Browne of Madingley v Associated
Newspapers39 that the mere fact that information was imparted in the course of a
relationship of confidence would not automatically mean that it satisfied Lord Nicholls’
test of ‘expectation of privacy’. The example given was of a husband telling his wife that
Oxford or Cambridge won the boat race in a particular year. The important point
remains, however, that a confidential relationship is likely to be of decisive importance
in considering whether there was an expectation of privacy. Reference was made to
Buxton LJ in McKennitt40 and the point he made – that to inquire into whether
information was private without paying any regard to the nature of the pre-existing
relationship between the parties is unlikely to produce anything but a distorted outcome
– was expressly approved. In summary, the Court of Appeal in the Lord Browne of
Madingley case41 was firmly of the view that the authorities supported the conclusion
that the relationship between the relevant persons or parties is of considerable
38
39
40
41
At [8] and see [15] et seq.
[2007] EWCA Civ 295, at [29].
At [15].
At [31].
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importance in determining whether there was a reasonable expectation of privacy. The
court said that in answering that question there are a number of potentially relevant
questions, depending upon the circumstances, which include whether the person
concerned received information which he knew or ought reasonably to have known was
fairly and reasonably to be regarded as confidential or private.
IS ART 8 ENGAGED?
11.32 Every case must be decided on its own facts and the single question to ask in
every case is whether there was a reasonable expectation of privacy in respect of the
information under consideration.42
A private life
11.33 The ECtHR in Von Hannover v Germany defined a private life in the following
terms making useful reference to a ‘private zone’ of interaction in one’s life and to the
proper development of one’s personality:43
‘… private life, in the court’s view, includes a person’s physical and psychological integrity;
the guarantee afforded by article 8 of the Convention is primarily intended to ensure the
development, without outside interference, of the personality of each individual in his
relations with other human beings … There is therefore a zone of interaction of a person
with others, even in a public context, which may fall within the scope of “private life”.’
The right to privacy
11.34 The right to maintain and protect privacy is a human right of fundamental
importance to an individual’s enjoyment of life and personal development.
Lord Nicholls explained in Campbell v MGN Ltd that:44
‘A proper degree of privacy is essential for the well-being and development of an individual.
And restraints imposed on government to pry into the lives of the citizen go to the essence of
a democratic state: see La Forest J in R v Dymont [1988] 2 SCR 417, 426.’
11.35 Lord Mustill referred to the damaging effects of any infringement of the right to
privacy in R (on the application of BBC) v Broadcasting Standards Commission in the
following terms:45
‘An infringement of privacy is an affront to the personality, which is damaged both by the
violation and by the demonstration that the personal space is not inviolate.’
Privacy as underlying value not a cause of action
11.36 Lord Hoffman in Campbell said that the right to privacy is an important
underlying value in various causes of action including privacy although it is not of itself
42
43
44
45
See e g Sir Anthony Clarke in Lord Brown of Madingley, ibid, at [36].
(2005) 40 EHRR 1.
At [12].
[2001] QB 885, at 900, [2000] 3 All ER 989.
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the tort or cause of action.46 It was, he said, decided in Wainwright v Home Office47 that
there is no general tort of invasion of privacy. He emphasised that the right to privacy is
in a general sense one of the values, and sometimes the most important value, which
underlies a number of more specific causes of action, both at common law and under
various statutes. Significantly Lord Hoffman said48 human rights law identified private
information as something worth protecting as an aspect of human autonomy and
dignity. As an underlying value (enshrined in Art 8), privacy has influenced the tort of
breach of confidence in developing protection in respect of private information.
The invasion of privacy
11.37 The law of privacy (or ‘privacy’) is concerned with the unauthorised disclosure
and publication of private information not, directly, with the means which might have
been used to obtain the information in the first place. For example, long lens
photography or surveillance might result in violation or invasion of an individual’s
privacy but it is not that but the subsequent publication of the private information
contained in the photographs or tapes with which the law of privacy is concerned.
11.38 In Campbell Lord Nicholls said49 that, unlike the US, there is no overarching,
all-embracing cause of action for ‘invasion of privacy’ here and referred to the decision
of the House of Lords in Wainwright v Home Office.50 Although he referred to privacy
as a tort, however labelled, he said it afforded, in the case of individuals, respect for one
aspect of an individual’s privacy and that:51
‘That is the value underlying this cause of action. An individual’s privacy can be invaded in
ways not involving publication of information. Strip-searches are an example …
Miss Campbell’s common law claim was throughout presented in court exclusively on the
basis of breach of confidence, that is, the wrongful publication by the “Mirror” of private
information.’
11.39 Lord Nicholls noted52 that photographs taken covertly of Ms Campbell in the
road outside the building where she attended Narcotics Anonymous could be deeply
distressing, even damaging, to a person whose health was fragile. But he emphasised she
did not complain that the taking of the photographs infringed her privacy. Her
complaint was that the information in the photographs was private so the fact they were
taken surreptitiously added nothing to her complaint.
The touchstone of a private life: is Art 8 engaged?
11.40 In Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd Gleason CJ
observed that there was a large area in between what was necessarily public and what
was necessarily private:53
46
47
48
49
50
51
52
53
It was established in Douglas v Hello! (No 3) [2006] QB 125 that misuse of private information is an
equitable cause of action and is not a tort.
[2003] UKHL 53, at [43], [2003] 4 All ER 969, [2003] 3 WLR 1137.
At [50].
[2004] UKHL 22, at [11].
[2003] UKHL 53, [2003] 3 WLR 1137, [2003] 4 All ER 969.
At [15].
At [30].
(2001) 185 ALR 1, at 13, para 41.
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‘An activity is not private simply because it is not done in public. It does not suffice to make
an act private that, because it occurs on private property, it has such measure of protection
from the public gaze as the characteristics of the property, the nature of the activity, the
locality, and the disposition of the property owner combine to afford. Certain kinds of
information about a person, such as information relating to health, personal relationships, or
finances, may be easy to identify as private, as may certain kinds of activity which a
reasonable person, applying contemporary standards of morals and behaviour, would
understand to be meant to be unobserved …’
11.41 As stated above, Art 8 is engaged when an individual has a reasonable
expectation of privacy in respect of specified information. This is an objective
reasonable expectation test. The alternative test – whether the individual concerned
would find publication of the information ‘highly offensive’ – has not found favour as a
threshold test. The ‘highly offensive’ test (propounded by Gleeson CJ in the High Court
of Australia in Australian Broadcasting Corpn v Lenah Game Meats Pty Ltd54 – that
‘disclosure or observation would be highly offensive to a reasonable person of ordinary
sensibilities’) should more properly be considered at the later stage when considering
proportionality for two reasons.55 First, the ‘highly offensive’ phrase suggests a stricter
test of private information than a reasonable expectation of privacy and, secondly, the
‘highly offensive’ formulation tends to bring into account – when deciding whether
information is private – considerations more properly the concern of proportionality
and this can cause confusion.56
11.42 Lady Hale explained in Campbell57 that once information is identified as ‘private’
the court must balance the claimant’s interest in keeping the information private against
the countervailing interest of the recipient in publishing it. In cases of breach of the
duty of confidence the question is whether the information in issue is private and not
public. In many cases the answer to this is obvious – although the law of privacy is not
intended for the protection of the unduly sensitive.58
Obviously private information
11.43 Where it is obvious that information is private (which is often the case) the
inquiry can stop there because the individual involved can expect privacy to be
respected. Lord Hope said in Campbell59 if the information is obviously private the
person to whom it relates can reasonably expect their privacy to be respected.
54
55
56
57
58
59
Ibid, at 13, para 42.
The second Restatement of Torts in the United States (1977), art 652D, p 394, uses the formulation of
disclosure of matter which ‘would be highly offensive to a reasonable person’. In Australian Broadcasting
Corpn v Lenah Game Meats Pty Ltd (2001) 185 ALR 1, at 13, para 42, Gleeson CJ used words, widely
quoted, having a similar meaning.
Lord Nicholls in Campbell, at [21] and [22]; Lord Carswell at [166].
At [135] and [137].
Campbell, at [94]. In Murray v Big Pictures (UK) Limited [2008] EWCA Civ 446 the Court of Appeal said it
was clear Lord Nicholls in Campbell regarded the ‘highly offensive test’ as stricter than his own formulation
of ‘reasonable expectation of privacy’. The Court of Appeal also thought that, insofar as it was relevant to
consider whether publication of information was ‘highly offensive’, it was relevant not to whether Art 8 was
engaged but to issues of proportionality and the balance between Art 8 and Art 10.
At [96].
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11.44 Information about events in the home cannot lightly be intruded upon and even
relatively minor details will usually be considered to be obviously private. This is because
the disclosure of such details is plainly intrusive and likely to be distressing. Buxton LJ
amplified on this in McKennitt v Ash:60
‘[12] The judge listed a large number of parts of the book that were said by Ms McKennitt to
consist of private information. He refused protection for many of them because he regarded
their content as “anodyne”, imprecise or already known to the public. In … M v Secretary of
State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, 83, [2006] 4 All ER 929
Lord Walker of Gestingthorpe pointed out that interference with private life had to be of
some seriousness before art 8 was engaged … the general nature of the information sought to
be restrained was indicated by the Judge in his para 11:
“Ms McKennitt’s personal and sexual relationships.
Her personal feelings and, in particular, in relation to her deceased fiancé and the
circumstances of his death.
Matters relating to her health and diet.
Matters relating to her emotional vulnerability.
The detail of an unhappy dispute between Ms McKennitt, on the one hand, and
Ms Ash and Mr Fowkes on the other, concerning monies advanced to them by
Ms McKennitt to assist in the purchase of a property in 1997 and the subsequent
litigation in the Chancery Division (which was settled on the basis of a Tomlin order
without ever coming to a public hearing) …”
[22] … art 8 cases have tended to be concerned with the security or stability of residence,
rather than with privacy within the home. But the Judge … [pointed] out that it should have
been and was obvious that events in a person’s home cannot be lightly intruded upon; and …
“it is intrusive and distressing for Ms McKennitt’s household minutiae to be exposed to curious
eyes”. And I would also respectfully agree with his comparison with long distance
photography … publication of the fruits of [the defendant’s] inspection of the cottage and of
what happened there was unacceptable.’
The public domain and the ‘zone’ of a private life
11.45 It remains a general principle that information in the public domain (i e already
known by the public) cannot claim the protection of a private life. Buxton LJ in
McKennitt v Ash referred to the fact that although the inquiry is now conducted under
Art 10, the inquiry is still largely conducted in the traditional terms of the English law of
confidence. It was argued in McKennitt that once a person had revealed or discussed
some information falling within a particular ‘zone’ of their lives they had a greatly
reduced expectation of privacy in relation to any other information that fell within that
zone. This is still an open question which depends on the particular facts of each case.
Eady J at first instance in McKennitt61 explained that the defendant had relied on the
fact that the claimant had, in a number of articles in the past, revealed certain aspects of
her personal life and beliefs to the general public and submitted that those aspects could
no longer be protected by the law of privacy. Eady J dismissed this argument on the
facts on the basis that details of conversations with, or behaviour in the presence of,
60
61
[2006] EWCA Civ 1714.
[2005] EWHC 3003 per Eady J at [79]–[80].
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close personal friends is significantly different from the sort of material the claimant had
revealed in the past. Eady J said that there is in this context a significant difference
between choosing to reveal aspects of private life with which an individual feels
‘comfortable’ and allowing disclosure to the public every detail of personal life, feelings,
thoughts and foibles of character.
11.46 The context in which the claimant in McKennitt v Ash had chosen to reveal
information about herself was her attempts to promote water safety and to support the
Cook-Rees Memorial Fund. Eady J thought that revelations in this context would not
give the defendant the right to reveal the claimant’s ‘pitifully grief-stricken reaction to
the death of [her fiancé], his brother and a friend’. The judge thought that an
individual’s reactions and communications to a friend in the immediate aftermath of
personal bereavement are a classic example of material in respect of which there would
a reasonable expectation of privacy.
11.47 Buxton LJ agreed with Eady J’s approach.62 He said that if ‘information is my
private property, it is for me to decide how much of it should be published’ and that the
‘zone’ argument completely undermines that reasonable expectation of privacy.
Buxton LJ rejected the argument that it would be possible for public figures to censor or
control what was published about them. This is a different argument and ultimately is
resolved by competing public interest considerations.
11.48 Not all disclosures will put the material in the public domain. In the Lord Browne
of Madingly v Associated Newspapers63 information about the fact of the relationship in
that case was already in the public domain and the question arose whether it would be
unrealistic to restrain publication and (closely related to that question) whether
information had become ‘so generally accessible that, in all the circumstances, it cannot
be regarded as confidential’. The Court of Appeal considered that there was potentially
an important distinction between information made available to a person’s circle of
friends or work colleagues and information which is widely published in a newspaper. If
there has been limited disclosure it may well be possible to restrain further, wider
disclosure.
Article 8 and the PCC Code of Practice
11.49 The court is obliged by HRA 1998, s 12(4)(b) not only to have particular regard
to the importance of the ECHR right to freedom of expression, but also to any relevant
privacy code.64 The Press Complaints Commission (PCC) Editors’ Code of Practice
(October 2009 revision) provides as follows:
‘3.
i)
ii)
iii)
62
63
64
Privacy
Everyone is entitled to respect for his or her private and family life, home, health and
correspondence including digital communications.
Editors will be expected to justify intrusions into any individual’s private life without
consent. Account will be taken of the complainant’s own public disclosures of
information.
It is unacceptable to photograph individuals in private places without their consent.
McKennitt v Ash [2005] EWHC 3003 , at [54] and [55].
[2007] EWCA Civ 295, at [61].
Lady Hale in Campbell, at [159].
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Note – Private places are public or private property where there is a reasonable expectation
of privacy.
The public interest
There may be exceptions to the clauses marked * where they can be demonstrated to be in
the public interest.
1. The public interest includes:
i)
ii)
iii)
Detecting or exposing crime or a serious impropriety.
Protecting public health and safety.
Preventing the public from being misled by an action or statement of an individual or
organisation …’
THE ABSORPTION OF PRIVATE INFORMATION INTO
BREACH OF CONFIDENCE
11.50 Lord Nicholls said65 that the values enshrined in Arts 8 and 10 are now part of
the cause of action for breach of confidence and, echoing Lord Woolf CJ, said that the
courts have achieved this by absorbing the rights protected by Arts 8 and 10 into this
cause of action.66
11.51 The absorption of privacy into breach of confidence transformed the nature of
the cause of action for breach of confidence. It continues to provide a remedy where a
pre-existing confidential relationship is violated or if confidential information is
misused but has been extended to provide a remedy where private information has been
misused regardless of any prior confidential relationship or traditional element of
confidentiality. The new cause of action – in its extended form – is sometimes more
accurately called ‘misuse of private information’. Lord Nicholls said in Campbell that:
‘[14] This cause of action has now firmly shaken off the limiting constraint of the need for
an initial confidential relationship. In doing so it has changed its nature … Now the law
imposes a “duty of confidence” whenever a person receives information he knows or ought
to know is fairly and reasonably to be regarded as confidential. Even this formulation is
awkward … Information about an individual’s private life would not, in ordinary usage, be
called “confidential”. The more natural description today is that such information is private.
The essence of the tort is better encapsulated now as misuse of private information.’
Breach of confidence and misuse of private information: one cause of
action
11.52 In its present form breach of confidence thus embraces two differing forms of
protection:
•
65
66
old-fashioned breach of confidence which upholds confidential relationships and
the duty of good faith; and
Campbell v MGN Limited [2004] UKHL 22, at [17].
See A v B plc [2002] EWCA Civ 337, [2003] QB 195, at [4].
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•
misuse of private information (the new element to this cause of action) which
upholds human autonomy and dignity in respect of private information regardless
of whether a breach of a confidence is involved.
11.53 The right to object to the unauthorised publication of private information is a
new form of protection previously unknown in our law. It derives from the right to
privacy enshrined in the ECHR which is now enforced directly by our courts.
Lord Hoffman said in Campbell v MGN Ltd that:67
‘[49] … Until the Human Rights Act 1998 came into force, there was no equivalent in
English domestic law of art 8 the European Convention or the equivalent articles in other
international human rights instruments which guarantee rights of privacy. So the courts of
the United Kingdom did not have to decide what such guarantees meant …
[50] … The incremental changes to breach of confidence do not merely extend the duties
arising traditionally from a relationship of trust and confidence but there is a new approach
to the underlying value which the law protects. Instead of the cause of action being based
upon the duty of good faith applicable to confidential personal information and trade
secrets alike, it focuses upon 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.’
11.54 Frequently the information in question is both confidential and private and in
such cases the two forms of protection are in play. Lord Hoffman observed that the
cause of action in Campbell68 fitted:69
‘… squarely within both the old and the new law. The judge found that the information
about Ms Campbell’s attendance at NA had been communicated to the Mirror in breach of
confidence and that the Mirror must have known that the information was confidential …’
11.55 Sometimes the information in question is purely private, not having resulted from
breach of a confidential relationship. This applies to so-called ‘purloined’ information,
for example, a photograph taken with a long lens of a celebrity lounging by his garden
pool. The photograph contains private information but, since no breach of a
confidential relationship would have occurred, the focus is on protecting the
information, which is private, rather than on enforcing a confidential relationship.
11.56 Where the information in question is derived from both a violation of a
confidential relationship and a violation of the right to privacy the court first applies
old-fashioned breach of confidence principles before considering Art 8. The issue is
whether there is a sufficiently strong public interest to displace an obligation of
confidence. Contractual obligations of confidence (express or implied) are particularly
strong and will usually bind a celebrity’s agent and employees. The importance attached
to the need to focus initially on enforcing obligations of confidence, in all cases, was
highlighted by Buxton LJ in McKennitt v Ash:70
67
68
69
70
Lord Hoffman in Campbell referring to Sedley LJ in Douglas v Hello! Ltd [2001] QB 967, at 1001, [2001]
2 All ER 289.
[2004] UKHL 22. See also Lord Carswell at [163]: ‘It was not in dispute that the information was imparted
in confidence to the respondents …’
At [53].
[2006] EWCA Civ 1714.
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‘[15] … Campbell, Douglas and … Von Hannover v Germany (2005) 40 EHRR 1, have
wrestled with the problem of identifying the basis for claiming privacy or confidence in
respect of unauthorised or purloined information … the primary focus has to be on the
nature of the information, because it is the recipient’s perception of its confidential nature
that imposes the obligation on him … But … in the vast majority of cases the duty of
confidence will arise from a transaction or relationship between the parties [where the
inquiry] reverts to a more elemental enquiry into breach of confidence in the traditional
understanding of that expression. That does not of course exempt the court from
considering whether the material obtained during such a relationship is indeed confidential;
but to enquire into that latter question without paying any regard to the nature of the
pre-existing relationship between the parties, as the argument for the Appellant in this court
largely did, is unlikely to produce anything but a distorted outcome.
[24] … If the contractual documents had fallen off the back of a lorry and been picked up
by a third party there might be some question as to whether they were of such a nature that
he was bound to hold them in confidence. The documents might not come within the
category of self-evident privacy that was in the mind of Laws J in his famous example in
Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473, [1995] 1 WLR 804 at 807. But
there is no such issue in the case of a person who finds out details of contractual terms
because she is in a relationship of confidence with the contracting party. As the Judge said in
his para 144:
“… Ms McKennitt is entitled to a reasonable expectation of privacy as to her
contractual terms. They are certainly not for Ms Ash to reveal”.’
11.57 Those who engage employees, or who enter into other relationships that carry
with them a duty of confidence, ought to be able to be confident that they can disclose,
without risk of wider publication, information that it is legitimate for them to wish to
keep confidential. Contractual obligations of confidence should always be specified
clearly in all celebrity contracts, and will usually be enforced even in favour of those who
have courted publicity because of the strong public interest in upholding contracts.
Previous authority suggesting otherwise, such Woodward v Hutchins,71 is likely to be
confined to its own facts. Woodward concerned the dismissed publicity agent of a
well-known group of singers (including Tom Jones) who wished to write a series of
articles dealing with their private lives and conduct. The group failed to obtain an
interlocutory injunction to prevent publication. Bridge LJ said:72
‘It seems to me that those who seek and welcome publicity of every kind bearing upon their
private lives so long as it shows them in a favourable light are in no position to complain of
the invasion of their privacy by publicity that shows them in an unfavourable light.’
11.58 Buxton LJ in McKennitt v Ash73 pointed out that Woodward had come in for a
good deal of criticism particularly the fact the court was not reminded of the relevance
of the contractual relationship between the agent and his former employers. He said that
that largely deprived the decision of any direct authority in or relevance to the facts of
McKennitt v Ash.
11.59 In McKennitt v Ash the written contract set out significant obligations of
confidentiality but Ms Ash was found to be bound, in any event, by obligations of
confidentiality. The provisions of the written contract were held not to add much to the
obligations Ms Ash owed in equity by reason of the closeness of her personal
71
72
73
[1977] 1 WLR 760.
At 765D.
At [32] and [34].
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relationship with Ms McKennitt. Where personal relationships such as this are involved
the contractual provisions and independent equitable obligations should primarily be
relied on.74
11.60 In HRH Prince of Wales v Associated Newspapers Ltd,75 which concerned the
unauthorised publication of the Prince Charles’s private diaries, the Court of Appeal
said that the judge had commenced his analysis of the claim for breach of confidence
with the statement: ‘The modern starting point in a claim of this kind is the decision of
the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457’ as though there were only
two significant issues:
•
whether the subject matter of the journal ‘private’ so that the newspaper’s
publication of it interfered with Prince Charles’s rights under Art 8(1) of the
ECHR; and if so
•
whether the newspaper’s publication was none the less justifiable under Art 8(2) as
being necessary for the protection of the Art 10 rights of the newspaper and of the
public.
11.61 The Court of Appeal said it was an oversimplification to deal with the matter as
if it was a simple conflict between the rights under Arts 8 and 10 of the ECHR. The case
raised the question whether the principles permitting publication of information
disclosed in breach of an obligation of confidence required to be revised in order to give
full effect to Art 10 rights. The Court of Appeal76 said there was a distinction between
whether a claimant can reasonably expect those in a confidential relationship to keep
information confidential and whether a claimant can reasonably expect the media not to
publish such information if the duty of confidence is breached. As to the latter it had
been argued that if the circumstances are such that Art 8 rights of privacy in relation to
particular information are likely to be trumped by Art 10 rights of freedom of
expression, it cannot be reasonable to expect the information to remain confidential.
But the Court of Appeal said that this approach blurred the question of whether Art 8
is engaged with the question of how the balance should be struck between Art 8 and
Art 10 rights. The court said that the better approach is to consider the points made in
relation to the subject matter in question in the context of the competition between Art 8
and Art 10 rights and that the fact that information has been disclosed in breach of the
duties of good faith that arise in a relationship of trust and confidence is relevant when
considering the balance between the requirements of Arts 8 and 10.
11.62 The Court of Appeal in HRH Prince of Wales emphasised that the action was
not concerned solely with a claim for breach of privacy but that in the action were all
the elements of a claim for old-fashioned breach of confidence. The information was
disclosed in breach of the well-recognised relationship of confidence which exists
between employer and employee and the disclosure was in breach of an express
contractual duty of confidentiality.
11.63 Article 10(2) provides that the freedom to receive and impart information ‘may
be subject to such formalities, conditions, restrictions or penalties as are prescribed by
law … for preventing the disclosure of information received in confidence’. The ECHR
74
75
76
Buxton LJ, at [43].
[2006] EWCA Civ 1776.
At [45] and [48].
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recognises that it may be necessary, in a democratic society, to give effect to an
old-fashioned duty of confidence at the expense of freedom of expression. This is quite
independent of any privacy issues.
11.64 Express weight should always be given to the fact that information was received
in confidence – particularly under a contractual duty of confidence – and that the
publisher of the information was aware of the breach of confidence.
11.65 Old-fashioned breach of confidence will apply to all relationships where an
obligation of confidence can reasonably be expected. Sexual relationships – from
long-standing relationships to one-night stands – are particularly important. In Mosley
v NGN77 the claimant, with a number of women, took part in what was described as an
orgy as part of the ‘scene’. Eady J found that ‘old-fashioned breach of confidence’ was
involved as well as a violation of the Art 8 rights of those involved. The issue was
whether one of the women owed a duty of confidence to the other participants in the
orgy, including the claimant. The judge said that those who participate in sexual or
personal relationships may be expected not to reveal private conversations or activities.
There was a recognised code of discretion on ‘the scene’ and the judge concluded that
the defendant had committed an ‘old-fashioned breach of confidence’ as well as a
violation of the Art 8 rights of all those involved. The argument that the claimant
forfeited any expectation of privacy partly because of the numbers involved, coupled
with the fact that he liked to record the gatherings on video, was firmly rejected in the
light of the ECtHR decision in ADT v UK.78
11.66 The Court of Appeal summarised the position in HRH Prince of Wales v
Associated Newspapers Limited79 by saying that whether the publication in question
involved a breach of a relationship of confidence, an interference with privacy or both,
it is necessary to consider whether these matters justify the interference with Art 10
rights that will be involved if publication is restrained. A balance has to be struck and
the following rules were laid down:
•
where the disclosure relates to ‘information received in confidence’ this itself is a
factor that Art 10(2) recognises is capable of justifying restrictions on freedom of
expression; and
•
where no breach of a confidential relationship is involved, that balance will be
between Art 8 and Art 10 rights and will usually involve weighing the nature and
consequences of the breach of privacy against the public interest, if any, in the
disclosure of private information.
11.67 Today the test is whether a fetter of the right of freedom of expression is, in the
particular circumstances, ‘necessary in a democratic society’. This was said by the Court
of Appeal to be a test of proportionality, albeit that a significant element to be weighed
in the balance was the importance in a democratic society of upholding duties of
confidence that are created between individuals. It is not enough to justify publication
that the information in question is a matter of public interest. The test to be applied
when restriction on freedom of expression was under consideration in order to prevent
disclosure of information received in confidence is whether, in all the circumstances, it is
77
78
79
[2008] EWHC 1777 (QB), at [105]–[109].
(2000) 31 EHRR 33.
At [65]–[68].
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in the public interest that the duty of confidence should be breached. The court will
need to consider whether it is legitimate for the owner of the information to seek to keep
it confidential or whether it is in the public interest that the information should be made
public.
11.68 In applying the test of proportionality, the Court of Appeal in HRH Prince of
Wales said80 that the nature of the relationship that gives rise to the duty of
confidentiality may be important and approved the statement made by the Court of
Appeal in Campbell v Frisbee that:81
‘… it is arguable that a duty of confidentiality that has been expressly assumed under
contract carries more weight, when balanced against the restriction of the right of freedom
of expression, than a duty of confidentiality that is not buttressed by express agreement …’
11.69 The extent to which a contract adds to the weight of duty of confidence arising
out of a confidential relationship depends upon the facts of the individual case. The
importance of the public interest in employees respecting the obligations of confidence
that they have assumed was recognised. Both the nature of the information and of the
relationship of confidence under which it was received might in particular cases weigh
heavily in the scales favouring upholding the duty of confidence.
11.70 Eady J in Mosley82 said that the third limiting principle is about finding where
the overall public interest really lies – in suppression or disclosure. It is an issue that
depends upon the careful application of proportionality to the facts. He said83 that the
‘ultimate balancing test’ turns largely upon proportionality and referred, by way of
example, to Sedley LJ in Douglas v Hello! Ltd.84 What has to be weighed in the balance
is whether the intrusion, or the degree of the intrusion which actually took place into
the claimant’s privacy, was proportionate to the public interest which is supposed to
justify it.
CELEBRITY EVENTS AND COMMERCIALLY VALUABLE
PERSONAL INFORMATION
11.71 The developing protection given to private information is concerned with
protecting an individual’s privacy; it is not concerned with protecting personal
information because it happens to be commercially valuable to a celebrity. This
important distinction must be borne in mind in relation to the protection given to
personal information (such as that derived from clandestine photography) at restricted
admission celebrity events. A celebrity may wish to restrict the publication of personal
information either because publication would infringe the celebrity’s right to privacy or
because the celebrity wishes to maintain the commercial value of the information. In the
latter situation the primary protection is given by old-fashioned breach of confidence.
80
81
82
83
84
At [69]–[74]
[2003] ICR 141, at [22].
At [13].
At [14].
[2001] QB 967, at [137].
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11.72 The rules applicable to commercially valuable personal information (such as
photographs of an exclusive celebrity wedding as in Douglas v Hello!85) were explained
by Lord Hoffman in OGB v Allen86 in the context of OK! magazine’s claim over the
disclosure of photographs of the Douglases’ wedding by the rival publication Hello!.
OK!’s claim was brought to protect exclusive rights over all photographs taken of the
wedding, authorised or not. The claim was for ‘old-fashioned’ breach of confidence and
had nothing to do with protecting personal or private information as such. The fact that
the rights to exclusivity in respect of all photographs of the wedding had been sold
meant the rival’s unauthorised photographs of the wedding were nonetheless treated as
confidential and, as Lord Hoffman explained, it was not in point that the information in
them happened to be personal and private. Lord Hoffman said:87
‘In recent years, English law has adapted the action for breach of confidence to provide a
remedy for the unauthorised disclosure of personal information: see Campbell v MGN Ltd
[2004] 2 AC 457. This development has been mediated by the analogy of the right to privacy
conferred by article 8 of the European Convention on Human Rights and has required a
balancing of that right against the right to freedom of expression conferred by article 10. But
this appeal is not concerned with the protection of privacy. Whatever may have been the
position of the Douglases, who, as I mentioned, recovered damages for an invasion of their
privacy, “OK!’s” claim is to protect commercially confidential information and nothing
more. So your Lordships need not be concerned with Convention rights. “OK!” has no claim
to privacy under article 8 nor can it make a claim which is parasitic upon the Douglases’
right to privacy. The fact that the information happens to have been about the personal life
of the Douglases is irrelevant. It could have been information about anything that a
newspaper was willing to pay for. What matters is that the Douglases, by the way they
arranged their wedding, were in a position to impose an obligation of confidence. They were
in control of the information.’
11.73 Personal information might (for the purposes of ascertaining the basis on which
it might be protected) be categorised as confidential information or as purely private
information. The distinction between confidential information and private information
was drawn in general terms by the Court of Appeal in Douglas v Hello! Ltd (No 3)88
who said that information would be treated as confidential:89
‘… if it is available to one person (or a group of people) and not generally available to others,
provided that the person (or group) who possesses the information does not intend that it
should become available to others.’
11.74 The Court of Appeal in that case said, in relation to the nature of private
information, that it:90
‘… must include information that is personal to the person who possesses it and that he does
not intend shall be imparted to the general public. The nature of the information, or the
form in which it is kept, may suffice to make it plain that the information satisfies these
criteria.’
85
86
87
88
89
90
Douglas v Hello! [2005] EWCA Civ 595.
[2007] 4 All ER 545, HL.
At [118].
[2006] QB 125.
At [55].
At [83].
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FREEDOM OF EXPRESSION
11.75 The right protected by Art 10 to express and publish a wide range of ideas and
views is not restricted to those which might be favourably received. It extends to
shocking, offensive and distasteful ideas and views. Freedom of expression is a
democratic right and value which fosters individual development and in a democratic
society it is curtailed only on grounds of necessity. It is not for the courts or media to
stipulate what should be protected. The right is not absolute and must be balanced with
other rights such as privacy.91 Weight is given to whether, in any particular case, the
press is exercising an important ‘watchdog’ role in public affairs so certain types of
speech receive greater protection in a democratic society than others. Political speech
tops the list of types of speech receiving most protection but weight is accorded to
information to do with the political and social life of the community or the intellectual,
artistic or personal development of individuals. Tabloid tittle-tattle is lower down the
scale but does sell copy. The extent to which it is in the public interest to encourage the
press to enjoy healthy circulation figures so that a variety of newspapers can be enjoyed
might be debateable.92 Lady Hale in Campbell said that:93
‘One reason why press freedom is so important is that we need newspapers to sell in order to
ensure that we still have newspapers at all. It may be said that newspapers should be allowed
considerable latitude in their intrusions into private grief so that they can maintain
circulation and the rest of us can then continue to enjoy the variety of newspapers and other
mass media which are available in this country. It may also be said that newspaper editors
often have to make their decisions at great speed and in difficult circumstances, so that to
expect too minute an analysis of the position is in itself a restriction on their freedom of
expression.’
11.76 Lady Hale in Campbell94 described the attributes of different types of speech:95
•
Political speech is most deserving of protection because the free exchange of
information and ideas on matters relevant to the organisation of the economic,
social and political life of the country is crucial to any democracy. This includes
revealing information about public figures, especially those in elective office, which
would otherwise be private but is relevant to their participation in public life.
•
Intellectual and educational speech and expression are also important in a
democracy, not least because they enable the development of individuals’ potential
to play a full part in society and in democratic life.
•
Artistic speech and expression is important for similar reasons, in fostering both
individual originality and creativity and the free-thinking and dynamic society we
so much value.
91
92
93
94
95
See e g the ECtHR judgment in Times Newspapers Ltd (Nos 1 and 2) v United Kingdom (App Nos 3002/03
and 23676/03), 10 March 2009.
The fact that the public is interested in particular information does not mean that it is in the public interest
that the information should be published.
Campbell v MGN Limited [2004] UKHL 22, at [143].
At [148] and [149].
In R Clayton and H Tomlinson The Law of Human Rights (Oxford University Press, 2000), at para 15.162,
it is pointed out that the court has distinguished three kinds of expression: (1) political expression (to which
the court consistently attaches great importance than it does to artistic or commercial expression); (2)
artistic expression; and (3) commercial expression.
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11.77 It was thought difficult to make such claims on behalf of a tabloid because the
publication of intimate details of celebrities’ private lives does little to assist the political
and social life of the community or the intellectual, artistic or personal development of
individuals.
11.78 In Jersild v Denmark96 the ECtHR declared that freedom of expression
constituted one of the essential foundations of a democratic society and that the
safeguards to be afforded to the press are of particular importance. The court added
these comments:97
‘Whilst the press must not overstep the bounds set, inter alia, in the interest of “the
protection of the reputation and rights of others”, it is nevertheless incumbent on it to
impart information and ideas of public interest. Not only does the press have the task of
imparting such information and ideas: the public also has a right to receive them. Were it
otherwise, the press would be unable to play its vital role of “public watchdog”.’
11.79 The ECtHR also said in Jersild:98
‘… the methods of objective and balanced reporting may vary considerably, depending
among other things on the media in question. It is not for this court, nor for the national
courts for that matter, to substitute their own views for those of the press as to what
technique of reporting should be adopted by journalists. In this context the court recalls that
article 10 protects not only the substance of the ideas and information expressed, but also
the form in which they are conveyed.’
11.80 In Fressoz v France99 the ECtHR said, in essence, that Art 10 leaves it for
journalists to decide whether or not it is necessary to reproduce material to ensure
credibility, adding:100
‘It protects journalists’ rights to divulge information on issues of general interest provided
that they are acting in good faith and on an accurate factual basis and provide “reliable and
precise” information in accordance with the ethics of journalism.’
11.81 The Court of Appeal in HRH Prince of Wales v Associated Newspapers
Limited101 said that decisions of the Strasbourg court identify, as a common theme, the
importance of the role of the press in a democratic society and cited a recent
formulation of the relevant principles to be found in Fressoz v France:102
‘(i) Freedom of expression constitutes one of the essential foundations of a democratic
society. Subject to paragraph 2 of article 10, it is applicable not only to “information” or
“ideas” that are favourably received or regarded as inoffensive or as a matter of indifference,
96
97
98
99
100
101
102
(1994) 19 EHRR 1, at para 31.
At para 31.
At p 26, para 31.
(2001) 31 EHRR 28, at para 54 (also at (1999) 5 BHRC 654).
Lord Hope also referred at [117] to R Clayton and H Tomlinson The Law of Human Rights (Oxford
University Press, 2000), at para 15.162, which pointed out that the court has distinguished three kinds of
expression: political expression, artistic expression and commercial expression, and that it consistently
attaches great importance to political expression and applies rather less rigorous principles to expression
which is artistic and commercial. He said that according to the court’s well-established case-law, freedom of
expression constitutes one of the essential foundations of a democratic society and one of the basic
conditions for its progress and the self-fulfilment of each individual: Tammer v Estonia (2001) 37 EHRR
857, at para 59.
[2006] EWCA Civ 1776, at [49].
(2001) 31 EHRR 28, at para 45 (also at (1999) 5 BHRC 654).
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but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance
and broadmindedness without which there is no “democratic society”.
(ii) The press plays an essential role in a democratic society. Although it must not overstep
certain bounds, in particular in respect of the reputation and rights of others and the need to
prevent the disclosure of confidential information, its duty is nevertheless to impart – in a
manner consistent with its obligations and responsibilities – information and ideas on all
matters of public interest. In addition, the court is mindful of the fact that journalistic
freedom also covers possible recourse to a degree of exaggeration, or even provocation.
(iii) As a matter of general principle, the “necessity” for any restriction on freedom of
expression must be convincingly established. Admittedly, it is in the first place for the
national authorities to assess whether there is a “pressing social need” for the restriction and,
in making their assessment, they enjoy a certain margin of appreciation. In cases, such as the
present one, concerning the press, the national margin of appreciation is circumscribed by
the interest of democratic society in ensuring and maintaining a free press. Similarly, that
interest will weigh heavily in the balance in determining, as must be done under paragraph 2
of article 10, whether the restriction was proportionate to the legitimate aim pursued.’
BALANCING THE RIGHT TO PRIVACY AGAINST FREEDOM
OF EXPRESSION
11.82 Once a reasonable expectation of privacy has been established the following
questions must be addressed:103
•
whether the objective of the restriction on the right guaranteed by Art 10 is
sufficiently important to justify limiting the fundamental right to freedom of
expression which the press assert on behalf of the public; and
•
whether the means chosen to limit the Art 10 right are rational, fair and not
arbitrary and impair the right as minimally as is reasonably possible.
11.83 The factors that need to be weighed when balancing freedom of expression
against the right to privacy are:104
•
First, the duty recognised in Jersild v Denmark105 to impart information and ideas
of public interest which the public has a right to receive, and the need, recognised
in Fressoz v France,106 for the court to leave it to journalists to decide what
material needs to be reproduced to ensure credibility.
•
Secondly, against that, the degree of privacy to which the claimant was entitled
under the law. Keene LJ said in Douglas v Hello! Ltd107 that any consideration of
Art 8 rights must reflect the fact that there are different degrees of privacy. The
potential for disclosure of the information to cause harm is an important factor to
be taken into account in the assessment of the extent of the restriction that was
needed to protect an individual’s right to privacy. The more intimate the aspects of
103
104
105
106
107
Lord Hope in Campbell, at [115].
Lord Hope, ibid, at [116]–[118].
(1994) 19 EHRR 1, at para 3.
(2001) 31 EHRR 28, at para 54.
[2001] QB 967, at [168].
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private life which are being interfered with, the more serious must be the reasons
for doing so before the interference can be legitimate.108
11.84 The rights embodied in Arts 8 and 10 are not absolute. Article 8 expressly
recognises that intrusions into private life will be justified in certain circumstances, such
as where the intrusion is necessary for the protection of the freedoms and rights of
others, and Art 10 expressly recognises that freedom of expression may, likewise, have to
accommodate other rights. Difficult issues of proportionality arise because the Articles
are accorded equal weight and neither is paramount. The central issue is whether there
is sufficient public interest in publication to justify overriding the competing right to
privacy.
11.85 Lord Nicholls said in Campbell109 that the importance of privacy has been
stressed less often than that of freedom of expression but the right to privacy
nonetheless lay at the heart of liberty in a modern state. Lord Hoffman110 said the
question was the extent to which it was necessary to qualify one right in order to protect
the underlying value protected by the other and that the extent of the qualification must
be proportionate to the need.111 He said112 that where there is no contrary public interest
recognised and protected by the law, the press is free to publish anything it likes and,
subject to the law of defamation, it does not matter how trivial, spiteful or offensive the
publication may be. But when press freedom comes into conflict with another interest
protected by the law a balance has to be struck.
11.86 Privacy must be balanced against freedom to impart information which in turn
must be balanced against respect for private life.113 This type of balancing exercise was
well known in English law (see Lord Goff in A-G v Guardian Newspapers (No 2)114) but
account is now taken of the guidance given by the ECtHR on the application of Arts 8
and 10. Sedley LJ pointed out in Douglas v Hello! Ltd:115
‘The European Court of Human Rights has always recognised the high importance of free
media of communication in a democracy, but its jurisprudence does not – and could not
consistently with the Convention itself – give article 10(1) the presumptive priority which is
given, for example, to the First Amendment in the jurisprudence of the United States’ courts.
Everything will ultimately depend on the proper balance between privacy and publicity in
the situation facing the court.’
11.87 Article 10 confers a conditional right and is balanced against other rights as was
explained in Bladet Tromsand Stensaas v Norway:116
‘Article 10 of the Convention does not, however, guarantee wholly freedom of expression …
Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it
“duties and responsibilities” which … are liable to assume significance when … there is
question of attacking the reputation of private individuals and examining the “rights of
others” … the safeguard afforded by article 10 to journalists in relation to reporting on issues
108
109
110
111
112
113
114
115
116
See the decision of the ECtHR in Dudgeon v United Kingdom (1981) 4 EHRR 149, at para 52.
Campbell v MGN Limited [2004] UKHL 22, at [12] and [20].
At [55].
Sedley LJ in Douglas v Hello! Ltd [2001] QB 967, at 1001, [2001] 2 All ER 289.
At [56].
Lord Hope, at [105] and [106].
[1990] 1 AC 109.
[2001] 1 QB 967, at 1004, [135].
(2000) 29 EHRR 125, at para 65.
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of general interest is subject to the proviso that they are acting in good faith to provide
accurate and reliable information in accordance with the ethics of journalism.’
11.88 Clause 3(i) of the PCC Code of Practice recognises that the right to privacy is
not absolute. For example, before it was recently revised the code stated that a person
may have a reasonable expectation of privacy in a public place. The Revised Code (as at
October 2009) at 3 iii) states that it ‘is unacceptable to photograph individuals in private
places without their consent’ and notes that ‘Private places are public or private
property where there is a reasonable expectation of privacy’. Sedley LJ explained the
inevitability of the proportionality test in the contest between press freedom and privacy
in Douglas v Hello! Ltd:117
‘The case being one which affects the Convention right of freedom of expression, section 12
of the Human Rights Act 1998 requires the court to have regard to article 10 … This,
however, cannot … give the article 10(1) right of free expression a presumptive priority over
other rights. What it does is require the court … to bring into the frame the conflicting right
to respect for privacy. This right, contained in article 8 and reflected in English law, is in turn
qualified in both contexts by the right of others to free expression. The outcome, which
self-evidently has to be the same under both articles, is determined principally by
considerations of proportionality.’
11.89 The weighing of relevant competing Convention rights118 requires an ‘intense
focus’ on the individual facts of the case. The balancing exercise is undertaken against
the background of Arts 8 and 10 of the ECHR. Articles 8(2) and 10(2) each separately
recognise that the rights and freedoms of others are entitled to protection. Neither Art 8
nor Art 10 is pre-eminent over the other and they are neither absolute nor in any
hierarchical order, since they are of equal value in a democratic society.119 Resolution
1165 (2008) of the Parliamentary Assembly of the Council of Europe, para 10 states
that:
‘The Assembly reaffirms the importance of everyone’s right to privacy, and of the right to
freedom of expression, as fundamental to a democratic society. These rights are neither
absolute nor in any hierarchical order, since they are of equal value.’
11.90 No one Convention right takes automatic precedence over another and our law
no longer demands that virtually unqualified weight be given to the concept that it is in
‘public interest that the truth should out’.120 Rights of free expression protected by
Art 10 do not simply ‘trump’ any privacy rights that may be established.
11.91 The Art 10 right ‘carries with it duties and responsibilities’. The rights in both
Arts 8 and 10 are qualified.121 The following are important in the balancing exercise:
•
117
118
119
120
121
whether the publication of the material in question pursues a legitimate aim set
out in each Article;
[2001] QB 967, at [137].
See eg Campbell v MGN [2004] UKHL 22 and Re S (A Child) [2005] 1 AC 593, cited by Eady J in Mosley v
NGN [2008] EWHC 1777 (QB).
Resolution 1165 of the Parliamentary Assembly of the Council of Europe (1998), para 11.
See Lord Denning MR in Fraser v Evans [1969] 1 QB 349, at 360F–360G.
Article 8(2) provides for ‘the protection of the rights and freedoms of others’. Article 10(2) provides for ‘the
protection of the reputation or rights of others’ and for ‘preventing the disclosure of information received in
confidence’. The rights referred to may either be rights protected under the national law or, as in this case,
other Convention rights.
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•
whether the benefits that will be achieved by publication are proportionate to the
harm that may be done by the interference with the right to privacy;
•
whether the interference with or restriction on the right is ‘necessary in a
democratic society’, meets a ‘pressing social need’ and is no greater than is
proportionate to the legitimate aim pursued;
•
whether the restriction is ‘in accordance with the law’ and has a basis in national
law which conforms to the ECHR standards of legality; and
•
whether the reasons given for any restriction are both ‘relevant’ and ‘sufficient’ for
this purpose.
11.92 The ECtHR has developed jurisprudence which explains how these principles are
to be understood and applied in the context of the facts of each case.122
The curtailment of media intrusion into the lives of celebrities
11.93 It is not enough to deprive an individual of their right to privacy because they
are a celebrity and that their private life is newsworthy. Normally when an infringement
of an individual’s right to privacy under Art 8 rights is identified it is only right that the
individual is afforded a remedy and that the right is vindicated. There is only one
permitted exception and that is where there is a countervailing public interest which in
the particular circumstances is strong enough to outweigh the right to privacy. This is
where it must be established that at least one of the established ‘limiting principles’ has
come into play.123
11.94 The question which arises in such a case is whether it was necessary and
proportionate for the infringement of privacy to have occurred. The sort of situation
which might justify the infringement might be, for example, in order to expose illegal
activity or to reveal the lies and hypocrisy of those in public life. Another instance where
it might be necessary to infringe a right to privacy is where the information in question
would make a contribution to ‘a debate of general interest’.124 This is a very high test.
11.95 It is not possible to state clearly how far these tests will be applied to situations
where a right to privacy has been established in respect of photographs taken in public
places. It would appear to be very difficult to justify such photographs by the
application of any of the established limiting principles and, if this is right, celebrity
photography and, indeed, the whole of celebrity culture along with it will have to be
greatly curtailed and reviewed. There is little, if any, public interest in satisfying the
public curiosity about details of the private lives of celebrities or those in the public eye.
11.96 These principles were affirmed in Strasbourg in the case of Leempoel v
Belgium:125
122
123
124
125
Lord Hope in Campbell, at [112].
See generally Eady J in Mosley v NGN [2008] EWHC 1777 (QB).
The words of the Strasbourg court in Von Hannover, at [60] and [76].
App No 64772/01, 9 November 2006. The above principles were set out by Eady J in Mosley v NGN,
at [131]–[133], as was this reference.
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‘In matters relating to striking a balance between protecting private life and the freedom of
expression that the Court had had to rule upon, it has always emphasised … the requirement
that the publication of information, documents or photographs in the press should serve the
public interest and make a contribution to the debate of general interest … Whilst the right
for the public to be informed, a fundamental right in a democratic society that under
particular circumstances may even relate to aspects of the private life of public persons,
particularly where political personalities are involved … publications whose sole aim is to
satisfy the curiosity of a certain public as to the details of the private life of a person,
whatever their fame, should not be regarded as contributing to any debate of general interest
to society.’
Allowing the press a degree of latitude
11.97 A margin of appreciation will be given to the journalist and it will sometimes be
the case that an individual’s right to privacy may be limited by the public’s interest in
knowing about certain traits of their personality and certain aspects of their private
life.126
11.98 How material that it is legitimate to convey to the public is presented without
breaching a duty of confidence is a matter for the journalists. The choice of language
and editorial decisions over whether or not to use photographs are matters the courts do
not like to interfere with. The media is entitled to a reasonable margin of appreciation in
taking decisions as to what details needed to be included in an article to give it
credibility as part of the journalistic process.127 This is illustrated by two statements
made in Campbell, as follows.
11.99 The Court of Appeal in Campbell said:128
‘Provided that publication of particular confidential information is justifiable in the public
interest, the journalist must be given reasonable latitude as to the manner in which that
information is conveyed to the public or his article 10 right to freedom of expression will be
unnecessarily inhibited.’
11.100 Lord Hoffman in Campbell said:
‘[59] … judges are not newspaper editors … I agree with the observation of the Court of
Appeal, at p 660, para 52, that it is harsh to criticise the editor for “painting a somewhat
fuller picture in order to show [Ms Campbell] in a sympathetic light.”’
11.101 If the substance of a story is justified questions, therefore, arise over how far
newspapers are allowed some margin of choice in the way they present stories and
whether they are to be strictly liable if matter is printed which does not satisfy the high
test set out above. It has been said that the practical exigencies of journalism demand
some latitude must be given; that editorial decisions have to be made quickly and with
less information than is available to a court, which reviews the matter at leisure, and that
it is unreasonable to expect that in matters of judgment, any more than in accuracy of
reporting, newspapers will always get it absolutely right.129
126
127
128
129
Lord Hope in Campbell, at [120].
Lord Hope in Campbell, at [113].
[2003] QB 633 at [64] (referred to with approval by Lord Hoffman on appeal at [2004] UKHL 22, at [65]).
Campbell [2004] UKHL 22, at [62].
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11.102 A parallel was drawn by Lord Hoffman in Campbell130 with the decision of the
House of Lords in Reynolds v Times Newspapers Ltd131 and he suggested that to require
editors to get it absolutely right every time would tend to inhibit the publication of facts
which should in the public interest be made known. He thought that the Reynolds
principle was equally applicable to the publication of private personal information in the
cases in which the essential part of that information can legitimately be published.
Lord Carswell in Campbell was in agreement with Lord Nicholls and Lord Hoffmann in
allowing a proper degree of journalistic margin to the press to deal with a legitimate
story in its own way, without imposing unnecessary shackles on its freedom to publish
detail and photographs which add colour and conviction. He did not minimise these
factors and thought them part of the legitimate function of a free press which required
to be given proper weight.132
11.103 Eady J in Mosley v NGN133 emphasised that it is for the court to decide whether
a particular publication was in the public interest. He referred to the fact that some
authorities placed emphasis on the need to make due allowance for editorial judgment
and also for a wide discretion so far as taste and modes of expression are concerned. He
also referred by way of example to Jameel (Mohammed) v Wall Street Journal Sprl134 in
the context of privilege in the law of defamation, where Lord Bingham made these
observations:
‘[31] The necessary precondition of reliance on qualified privilege is that the matter
published should be one of public interest … what engages the interest of the public may not
be material which engages the public interest.
[32] … assuming the matter to be one of public interest … Lord Nicholls proposed [in
Reynolds v Times Newspapers Ltd], at p 202, a test of responsible journalism, a test repeated
in Bonnick v Morris [2003] 1 AC 300, 309 … that there is no duty to publish and the public
have no interest to read material which the publisher has not taken reasonable steps to verify.
As Lord Hobhouse observed … at p 238, “No public interest is served by publishing or
communicating misinformation.”… the publisher is protected if he has taken such steps as a
responsible journalist would take to try and ensure that what is published is accurate and fit
for publication.
[33] Lord Nicholls, at p 205, listed certain … pointers which might be more or less
indicative, depending on the circumstances … not … a series of hurdles to be negotiated by
a publisher before he could successfully rely on qualified privilege. Lord Nicholls recognised,
at pp 202–203 … it had to be … the court, which decided whether a publication was
protected by qualified privilege. But this does not mean that the editorial decisions and
judgments … are irrelevant. Weight should ordinarily be given to the professional judgment
of an editor or journalist in the absence of some indication that it was made in a casual,
cavalier, slipshod or careless manner.’
11.104 It was considered that a decision on public interest must be capable of being
tested by objectively recognised criteria by Eady J in Mosley.135 He referred to the
observation of Sir John Donaldson MR in Francome v Mirror Group Newspapers Ltd,136
that: ‘The media … are peculiarly vulnerable to the error of confusing the public interest
130
131
132
133
134
135
136
At [63].
[2001] 2 AC 127.
At [169].
At [135].
[2007] 1 AC 359, at [31]–[33].
At [138] and [139].
[1984] 1 WLR 892, at 898.
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with their own interest.’ Eady J thought that there might be a case for saying, when
‘public interest’ has to be considered in the field of privacy, that a judge should inquire
whether the relevant journalist’s decision prior to publication was reached as a result of
carrying out inquiries and checks consistent with ‘responsible journalism’ and said he
must not disregard the remarks of Lord Phillips MR in Campbell137 to the effect that the
same test of public interest should not be applied in the ‘two very different torts’.
Privacy and defamation
11.105 In McKennitt v Ash138 Buxton LJ said that if it could be shown that a claim in
breach of confidence was brought where the nub of the case was a complaint of the
falsity of the allegations in order to avoid the rules of the tort of defamation objections
could be raised in terms of abuse of process. However, he said139 that provided the
matter complained of is by its nature such as to attract the law of breach of confidence
the defendant cannot deprive the claimant of his Art 8 protection simply by showing
that the matter is untrue. He said that some support is given to that approach by the
European cases that indicate that Art 8 protects ‘reputation’, broadly understood. This
approach might raise issues on applications for interim injunctions because the
threshold test for the grant of an interim injunction in a privacy case differs from a
defamation case. Latham LJ140 identified the question in a case of misuse of private
information as being whether the information is private not whether it is true or false.
He said that the truth or falsity of the information is an irrelevant inquiry in deciding
whether the information is entitled to be protected and judges should be chary of
becoming side-tracked into that irrelevant inquiry.
Privacy and photographs and films
11.106 Where a person who for private or domestic purposes commissions the taking
of a photograph or the making of a film (e g for a private celebrity wedding) the
copyright in the resulting photographs or films will usually belong to the photographer.
However, the person who commissions the photographer (i e the celebrity in the
example) has the moral right not to have copies of the photographs and film issued to
the public or exhibited or communicated to the public. This right is given by s 85 of the
Copyright, Designs and Patents Act 1988. The right is not infringed in various
circumstances, the most important of which is where the images are incidentally
included in an artistic work, film or broadcast. By s 103(1) an infringement of a moral
right is actionable as a breach of statutory duty owed to the person entitled to the right.
DAMAGES FOR INVASION OF PRIVACY
The nature of compensatory damages in privacy cases
11.107 Privacy cases are not primarily concerned with reputation. Eady J in Mosley141
underlined that infringement of privacy cases are not, therefore, directly concerned with
compensating for, or vindicating, injury to reputation. The purpose of damages in
137
138
139
140
141
[2003] QB 633, at [61].
[2006] EWCA Civ 1714, at [78] and [79].
At [80].
In McKennitt v Ash, at [86].
Mosley v NGN [2008] EWHC 1777 (QB): see at [214]–[231].
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privacy cases is to address the specific public policy factors in play when there has been
‘an old-fashioned breach of confidence’ and/or an unauthorised revelation of personal
information:
•
the law is concerned to protect such matters as personal dignity, autonomy and
integrity;
•
the inquiry should not be distracted by considerations which relate purely to taste
or moral disapproval;
•
matters going to personal dignity should not be dismissed because a particular
sexual activity or inclination itself may seem undignified;
•
damages may include distress, hurt feelings and loss of dignity;
•
damages might also include vindication to mark the infringement of a right,142
although this is different from vindication of reputation (which is a factor in libel
damages);
•
‘… there is no reason why an award of compensatory damages should not also
fulfil a vindicatory purpose’;143
•
damages must be proportionate, not open to the criticism of arbitrariness and
accord with a readily identifiable scale;
•
in awarding such damages it is legitimate to have some regard to current personal
injury awards to maintain a sense of proportion;
•
aggravating conduct may be taken into account in privacy cases where it increases
the hurt to the claimant’s feelings or ‘rubs salt in the wound’;
•
persisting in unpleasant allegations at trial publicly and without success is a
legitimate element to take into account and to reflect in any award;
•
the claimant’s conduct may be relevant to take into account;
•
contributory negligence is not a distinct issue in privacy claims but the extent to
which the claimant’s conduct contributed to the nature and scale of the distress
might be a relevant factor on causation;
•
injury to reputation is not a directly relevant factor. Whereas reputation can be
vindicated by an award of damages, that is not possible where embarrassing
personal information has been released for general publication because once
privacy has been infringed, the damage is done;
142
143
See e g Ashley v Chief Constable of Sussex [2008] 2 WLR 975, at [21]–[22]; and Chester v Afshar [2005] 1 AC
134, at [87].
Lord Scott observed in Ashley, ibid.
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•
an infringement of privacy cannot ever be effectively compensated by a monetary
award so the only realistic course is to select a figure which marks the fact that an
unlawful intrusion has taken place whilst affording some degree of solatium to the
injured party; and
•
where the traditional object of restitution is not available the figure selected
should not be such that it could be interpreted as minimising the scale of the
wrong done or the damage it has caused.
Exemplary damages and compensatory damages
11.108 An award of exemplary damages may only be made where an element of
punishment is thought appropriate and the amount to be awarded by way of
compensation (including aggravated damages) is not sufficient to serve a punitive as well
as a compensatory function.144 Exemplary damages are appropriate in two categories of
case:
•
those concerned with examples of arbitrary or unconstitutional conduct by public
officials; and
•
where there has been a deliberate and knowing commission of a tort and a
calculation that more is to be gained by the wrongful act than is likely to be
suffered by paying compensatory damages on the basis that the underlying public
policy is that ‘tort does not pay’.
11.109 Eady J considered145 that breach of privacy which involved balancing
competing Convention rights evolved from the equitable doctrines that traditionally
governed the protection of confidential information and that although there is some
judicial support for its recognition as a tort in Wainwright v Home Office,146 their
Lordships expressly refused to declare the existence of ‘a previously unknown tort of
invasion of privacy’. Punitive damages were considered anomalous because:
•
they brought in the notion of punishment when damages are about compensation;
•
the defendant’s means can be taken into account;
•
the sum awarded represents a windfall; and
•
where a jury is still available, it is the jury rather than the judge which determines
the amount.
11.110 It was considered that exemplary damages could not be awarded in an
infringement of privacy claim because apart from the lack of existing authority such an
award would fail the tests of necessity and proportionality. Damages for infringement of
privacy are confined to a compensatory award which can include an element of
aggravation, if appropriate.
144
145
146
See Eady J in Mosley v NGN, at [176]–[211].
Mosley, at [181].
[2004] 2 AC 406, at [31]–[35].
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The Data Protection Act 1998
11.111 The Data Protection Act 1998 (DPA 1998) is primarily concerned with
protecting individual privacy. Large amounts of personal information about individuals
is routinely processed and published and the Act is concerned with such activity. DPA
1998 defines the information subject to protection, the subjects of protection and the
activities which give rise to liability. ‘Personal data’ are defined in the Act as data
relating to a living individual identifiable from those data, or from those data and other
information in the possession of, or likely to come into the control of, the data
controller. The ‘data subject’ is the subject of personal data and includes any expression
of opinion about an individual and any indication of the intentions of the data
controller or any other person in respect of the individual. ‘Processing’ is widely defined
and, in relation to information or data, means obtaining, recording or holding the
information or data or carrying out a variety of operations on the information or data.
‘Using’ or ‘disclosing’, in relation to personal data, includes using or disclosing the
information contained in the data. This would include publication of personal data in
newspapers and magazines and similar.147
11.112 Relevant personal data might include written material, records and
photographs. The publisher of such material will be a data controller and the obtaining,
holding, preparation for publication and publication of such material is likely to
amount to processing of the data for the purposes of DPA 1998. If this is done without
the consent of the subject of the material, it is likely to constitute a breach of statutory
duty if it was processed in breach of the data protection principles, for example, to
process the data fairly and lawfully. It would not be lawful, for example, if it was done by
misusing the subject’s personal information and in breach of confidence. The issue
would then be whether or not the processing could be shown to be justified under the
Act. If the processing is not justified the claimant must show that he has suffered
damage or distress and is entitled to compensation under the Act.
11.113 ‘Personal data’ was considered by the Court of Appeal in Durant v Financial
Services Authority,148 where it was made clear that it by no means included all
information about someone held on file. Simply mentioning the data subject in a
document held by a data controller did not create personal data within DPA 1998.
Whether or not it did so would depend on how relevant or proximate the information
was to the data subject and the degree of the data subject’s involvement in the situation
or transaction with which the information was concerned. The biographical nature and
focus on the data subject in relation to the information were of relevance. The main
point was whether or not the information affected the data subject’s privacy in his
personal or family life, or business or professional capacity.
11.114 Sensitive personal data includes information as to the racial or ethnic origin of
the data subject; his political opinions; his religious beliefs or other beliefs of a similar
nature; his physical or mental health or condition; his sexual life; the commission or
alleged commission by him of any offence, or any proceedings for any offence
committed or alleged to have been committed by him and the disposal of such
proceedings or the sentence of any court in such proceedings.
147
148
A useful summary of the position appears in Campbell v MGN Ltd [2002] EWCA Civ 1373, at [72] et seq,
esp at [102]–[106].
[2003] EWCA Civ 1746.
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11.115 Part 1 of Sch 1 to DPA 1998 sets out the eight ‘data protection principles’.
These provide that:
•
personal data shall be processed fairly and lawfully and, in particular, shall not be
processed unless: (1) at least one of the conditions set out in Sch 2 is met, and (2)
in the case of personal sensitive data, at least one of the conditions in Sch 3 is met;
•
personal data shall be obtained only for one or more specified and lawful
purposes, and shall not be further processed in any manner incompatible with that
purpose or those purposes;
•
personal data shall be adequate, relevant and not excessive in relation to the
purpose or purposes for which they are processed;
•
personal data shall be accurate and, where necessary, kept up to date;
•
personal data processed for any purpose or purposes shall not be kept for longer
than is necessary for that purpose or those purposes;
•
personal data shall be processed in accordance with the rights of data subjects
under DPA 1998;
•
appropriate technical and organisational measures shall be taken against
unauthorised or unlawful processing of personal data and against accidental loss
or destruction of, or damage to, personal data; and
•
personal data shall not be transferred to a country or territory outside the
European Economic Area unless that country or territory ensures an adequate
level of protection for the rights and freedoms of data subjects in relation to the
processing of personal data.
11.116 Where there is no public interest justifying unauthorised publication of
personal data comprising private information DPA 1998 may well provide a remedy. The
protection the Act affords in respect of a photograph containing what was alleged to be
private information was considered by Patten J in Murray v Express Newspapers and
others149 and reviewed on appeal in the Court of Appeal.150 At first instance it was held
that Art 8 was not engaged and the photograph of the claimant could not, therefore, be
confidential information for the purposes of DPA 1998. There was an issue over
whether the photograph contained personal sensitive information, for example, about
race and ethnicity, but it was held that being public it fell within the exemption. The
judge held that for the photograph to comprise sensitive personal data under DPA 1998,
s 2(e) it would have to be of someone with some clearly identifiable physical condition
which was exposed by the photograph. It was said that a photograph of an apparently
healthy individual in fact tells nothing about his actual state of health. The judge said
that when dealing with sensitive personal data conveyed by an image alone exposing the
image by appearing in a public place satisfies condition 5.
11.117 With regard to compensation, DPA 1998, s 13 provides that an individual who
suffers damage by reason of any contravention by a data controller of any of the
149
150
[2007] EWHC 1908 (Ch), [2008] 1 FLR 704, at [69]–[92].
Murray v Big Pictures (UK) Limited [2008] EWCA Civ 446, at [62].
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requirements of DPA 1998 is entitled to compensation from the data controller for that
damage. An individual who suffers distress by reason of any contravention of any of the
requirements of DPA 1998 is entitled to compensation for that distress if (a) the
individual also suffers damage by reason of the contravention or (b) the contravention
relates to the processing of personal data for the special purposes. Provision is made that
it is a defence to prove that such care had been taken as in all the circumstances was
reasonably required to comply with the requirement concerned.
11.118 In Douglas v Hello!151 Brooke LJ made general comments about the application
of DPA 1998 to photographs and the right to compensation arising from contravention
of the requirements of the Act:
‘[55] … In the present case “Hello!” wished to publish in this country over half a million
copies of its issue 639 which it had imported from its printers in Spain. In another case,
however, a newspaper might wish to publish a photograph, taken on a private occasion,
which it possessed in this country in digital form. In such a case it might run into serious
difficulties.
[56] These difficulties would arise out of the provisions of the Data Protection Act 1998.
This statute was enacted, in part, to implement Council Directive 95/46/EC, which was
self-avowedly concerned with the protection of an individual’s Convention rights to privacy:
see paragraphs (2), (10), (11) and (17) of the preamble to the Directive and article 9 of the
Directive itself. It follows that unless the newspaper asserted a section 32(1)(b) justification
(viz that it reasonably believed that, having regard in particular to the special importance of
the public interest in freedom of expression, publication would be in the public interest), a
claimant who could show that the photograph had been taken of him on some private
occasion without his consent would be able to satisfy a court that it was highly probable that
an article 10(2) justification would succeed at trial: see the Data Protection Act 1998,
section 4 and Schedule 1, Part I, paragraph 1(a) and Schedule 2. Section 13 of this Act,
incidentally, grants an individual a statutory right to compensation for damage (including
distress, in certain specified circumstances) against a “data controller” who contravenes any
of the requirements of the Act. This entitlement is subject to any of the defences the Act
may provide.’
11.119 The right to compensation in respect of the publication of a photograph was
considered by the judge at first instance in Murray. The taking of the photograph and
its subsequent publication in the Murray case did not cause distress, nor did it cause
damage which, under DPA 1998, s 13(1), meant ordinary pecuniary loss.152 The
claimant sought compensation for general rather than special damage and it was held
that the claim was not made out. The judge refused to award compensation referable to
the market value of the data which had been misused. Sometimes such awards are made
as a restitutionary remedy or where the proper remedy is a form of equitable
compensation or accounting designed to require the defendant to disgorge profits
derived from use of the claimant’s property. In either case it is compensation for loss of
bargaining opportunity or the compulsory acquisition by the defendant of his rights.
Since such principles of compensation depended on an analogy with property rights and
the court’s power to enforce contracts the judge thought they were not applicable to
compensation under DPA 1998. The Act did not give the data subject property in his
personal data but merely regulated the way in which it could be processed. In summary,
151
152
[2001] QB 967.
See Johnson v Medical Defence Union [2007] EWCA Civ 262, [2007] 3 CMLR 181, at [74], per Buxton LJ.
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it was held that the Act did not give a cause of action based upon misuse of data where
the subject did not suffer damage or distress even though the data controller profited
from the material
11.120 The Court of Appeal in Murray said that had the judge at first instance held
that Art 8 was engaged and that the balance between Arts 8 and 10 was in the claimant’s
favour, the defendant’s admitted processing of the claimant’s personal data would have
been unlawful and unfair in that none of the conditions of Sch 2 to DPA 1998
(including the only condition relied upon, namely that in para 6(1)) would have applied.
The Court of Appeal said that the issues raised below under the Act would need
revisiting after the facts had been determined. They included those relating to causation
and damage which the Court of Appeal thought raised a number of important
questions including the meaning of ‘damage’ in DPA 1998, s 13(1). It was also thought
at least arguable that ‘damage’ had been construed too narrowly, having regard to the
fact that the purpose of the Act was to enact the provisions of the relevant Directive.153
153
Council Directive 95/46/EC.
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