Privacy and the law of confidence **

What is article 8 of ECHR and why is it so important?

Article 8- right to respect for private and family life. ‘Everyone has the right to respect for: his private and family life, his home, and his correspondence. Including health and mental health)

Article 8 doesn’t always apply, what situations does it not apply?

Unless: interests of national security, public safety, economic well being of the country prevention of disorder or crime, protection of health or morals, protections of the rights and freedoms of others.

What is article 10 of ECHR and why is it important?

Article 10- 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.

Article 10 doesn’t always apply, what situations does is not apply?

Unless: national security, territorial integrity or public safety, prevention of disorder or crime, protection of health or morals, protection of the reputations or rights, preventing the disclosure of info received in confidence and maintaining the authority and impartiality of the judiciary.

What are problems for journalists- Naomi Campbell case study 2001.

In 2001, Sunday Mirror published a story about Naomi Campbell attending a narcotics anonymous meeting. She previously denied taking drugs. There were pictures of her leaving the meeting. Campbell claimed the story breached her confidentiality and the pictures breached her right to privacy. She won because it’s medical.

Whats the relationship between the tort of misuse of private info, breach of confidence and the ECHR (8 &10) as established in Campbell v MGN (2004) 2 AC 457?

The tort of misuse of private info evolved from the equitable action for breach of confidence.

Following the human rights act 1998, courts must interpret and apply the law consistency with the ECHR- (European convention on human rights)

Article 8 protects rights to private life Article 10 protects freedom of expression.

In Campbell v MGN (2004) House of Lords confirmed that ‘the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence.’

What are the two stage test established in Campbell v MGN (2004) for determining misuse of private information?

Stage 1- reasonable expectation of privacy

Ask did the claimant have a reasonable expectation of privacy in the circumstances? If yes, article 8 (right to privacy) is engaged. An obligation of confidentiality arises where such an expectation exists.

Stage 2- balancing of rights

Ask is there sufficient public interest in publication to justify the interference with privacy? If so article 10 (freedom of expression) outweighs article 8 and publication is justified.

What limitx did the courts place on Campbell v MGN regarding privacy in public places, as illustrated by Elton John v Associated Newspaper (06)?

The Campbell privacy principles do not prevent publication of photos of people in public places engaged in innocous or everyday activities.

Privacy law does not protect celebrities who merely dislike how they appear in public photos.

In Elton John v Associated Newspapers (2006) the claim failed- he objected to photos of showing his baldness- the court held.

There is no general ban on photographing or publishing images of individuals in public, going about their normal business.

When can details of a person’s sex life be published under privacy law, and what did Rio Ferdinand v MGN (2011) establish?

Sexual relationships are generally regarded as part of a person’s private life protected by article 8. (ECHR) Publication can only be justified where there is genuine public interest, such as correcting a misleading public image.

In Rio Ferdinand v MGN (2011) the court held that revealing details of his past affair was not justified- the story was about ‘kiss + tell’ gossip not legitimate public interest.

Is there a single law of privacy in the UK? How is privacy protected legally?

No single law or tort of privacy exists in either common law or statute. Privacy is protected through a range of legal remedies (e.g. breach of confidence, data protection, misuse of private info) Since 1961, 5 bills have been presented to Parliament to create a statutory tort of privacy- all failed due to difficulties defining ‘privacy’ and ‘public interest.’ However modern laws (e.g. human rights act 1998, data protection act 2018) now increasingly offer private protection.

What conflict does the absence of a single privacy law create for journalists?

It creates a conflict between two fundamental rights:

freedom of expression (journalists right to publish info)

right to privacy (individuals right to protect their private life)

media history shows a constant battle between these two competing interests.

How has the UK approached the balance between privacy and freedom of expression?

Successive govs have avoided legislating on privacy, instead leaving it to the courts to develop case law. Privacy controversies have shaped the self regulatory environment of the media (especially newspapers) Key case- Kaye v Robertson & Sports newspapers (1991) highlighted the lack of a privacy tort and the need for better media accountability.

What calls have been made for a statutory privacy law in the UK?

Lord Justice Glidewell (supported by Bingham LJ) in Kaye v Robertson & Sports newspapers (1991) highlighted the ‘desirability of parliament considering statutory protection for privacy.’

The case reaffirmed that: ‘It is well known that in English law there is no right to privacy and accordingly, there is no right of action for a breach of a person’s privacy.” This is understood the absence of a statutory privacy right and need for legal reform.

What is the law of confidence and how has it evolved in common law?

Origin: developed in 19th century in common law to protect secret processes and inventions

Original purpose: not designed to protect privacy

Development: later expanded to cover private info

Key case: Campbell v MGN (2004) recognised a new remedy for misuse of private info

Modern influence: now incorporates rights from article 8 and 8 of ECHR. (privacy and freedom of expression)

What are the Megarry tests for a breach of confidence, established in Coco v A.N. Clark (engineers) Ltd (1969)?

The Megarry tests require that:

1. Information has a ‘quality of confidence’

2. The info was disclosed in circumstances importing an obligation of confidentiality- i.e. its use was unauthorised by the owner

3. The unauthorised use or disclosure has caused, or is likely to cause, damage to the owner (including emotional distress and supported by A- G v Times newspaper (1992)

What remedies are avalible for a breach of confidence or misuse of private info?

Remedies Include:

1) Injunction- temp or permanent: binds all media within England and Wales, but not elsewhere (watch for other banning orders)

2) unliquidated damaged- amount determined by the judge

3) account of profits- claimant can recover profits made by the defendant from using the confidential information

4) delivery up- the court can order return of the info to the claimant

5) court order to disclose the source of confidential info.

Always protect your sources

What are the defences to an action for breach of confidence or misuse of private info?

Defences includes:

1) public knowledge- the information is already in the public domain e.g. Watford observer and Sun pointers (1992) Triple Rollover lottery winner (1994)

2) consent- the owner of the confidential info has given permission

3) exposing iniquity- disclosure reveals crime or serious misconduct

4) public interest- disclosure serves the public good e.g. Lion, Labs v Daily Express (1984) - ‘Intoximeter case’

What is the difference between confidence and privacy in the context of information law?

Confidence- involves confidential material leaked unlawfully by someone without authorisation (e.g. employee leaking designs) Concerned with unauthorised disclosure of info entrusted in confidence.

Privacy- arises where circumstances make the material or situation obviously private. The person concerned has reasonable expectation of privacy under article 8 (ECHR)