unit 7 and tut Protection of Privacy Using Tort Law: Comprehensive Study Notes

Privacy is considered a core aspect of individual autonomy, crucial for fostering an individual’s personality and relationships. It safeguards psychological integrity and protects human dignity.

The Legal Status of Privacy Rights

The Right to Privacy in Domestic Law
- There is a legal right to respect for one's private life, established since October 2, 2000, following the Human Rights Act 1998.
Article 8 of the European Convention on Human Rights (ECHR)
- Article 8.1 states: "Everyone has the right to respect for his private and family life, his home and his correspondence."
Limitations of the Legal Right to Privacy
  - The right is constrained in two primary aspects:
    - Direct Assertion: Can only be enforced against public authorities through the Human Rights Act 1998. Article 8 does not provide a standalone tort of privacy between citizens.
    - Non-Absolute Nature: Article 8 is not an absolute right, with specific exceptions under Article 8(2):
      - Must comply with the law.
      - Necessary for a democratic society for reasons including:
        - National security
        - Public safety
        - Economic well-being
        - Prevention of disorder or crime
        - Protection of health or morals
        - Protection of rights and freedoms of others.

Judicial and Legislative Stance on a Tort of Privacy

The Rejection of a Common Law Tort of Privacy
  - Current legal standing confirms no general tort of privacy exists.
  - Wainwright v Home Office [2003] UKHL 53 is the leading authority rejecting a general privacy tort:
    - Challenges in formulating a common law tort that encompasses various privacy contexts.
    - Emphasis on legislative action over judicial recognition in establishing new rights.
The Prospect of a Statutory Privacy Tort
- In the Privacy and Injunctions report (March 27, 2012), the Joint Committee advised against a statutory privacy definition due to potential obsolescence and litigation concerns.

Existing Tort Law Protections for Privacy

Indirect Protection through Specific Torts
  - While there is no general privacy tort, certain torts protect aspects of privacy:
    - Private Nuisance: Safeguards peaceful enjoyment of one's home, relevant in neighbor disputes.
    - Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4: A significant case involving privacy and nuisance.     - Protection from Harassment Act 1997: Essential for safeguarding psychological integrity.
Informational Privacy and the Tort of Misuse of Private Information (MPI)
- Informational privacy is chiefly protected under the Tort of Misuse of Private Information (MPI), focusing on wrongful dissemination of private information.

Development and Essence of the Tort of Misuse of Private Information (MPI)

Historical Development
- The MPI evolved from equitable action for breach of confidence, influenced by the incorporation of Article 8 ECHR into domestic law.
- Campbell v MGN [2004] UKHL 22: A landmark case leading to the establishment of MPI. - Lord Hoffmann's Commentary in Campbell highlighted the importance of protecting private information for autonomy and dignity.
Confirmation of Status
- Vidal-Hall v Google [2015] EWCA Civ 311 reaffirmed MPI as a recognized tort, ensuring its validity and application in privacy cases.
The Essence of the MPI Action
- The MPI action aims to prevent the misuse of private information; however, its protection is not absolute, as the claimant’s interests must contend with the defendant’s freedom of expression rights.

The Test of Liability for Misuse of Private Information

The Two-Stage Test established in Campbell v MGN
  - Stage 1: Reasonable Expectation of Privacy
    - Determines if the claimant has a reasonable expectation of privacy concerning the contested information, thus engaging Article 8 interests.
  - Stage 2: The Balancing Exercise
    - If Stage 1 is satisfied, the court assesses whether the claimant’s privacy rights are outweighed by the defendant’s public interest in publishing the information, considering Article 10 rights (freedom of expression).
Detailing the First Stage: Reasonable Expectation of Privacy
  - The expectation is considered obvious in some instances.
   - Murray v Express Newspapers [2008] EWCA Civ 446 clarified non-obvious situations:
      - Sir Anthony Clarke MR Definition: Assessing the reasonable person's feelings regarding publicity based on situational context.
  - Factors considered include:
    - Characteristics of the claimant
    - Nature of the claimant's activity
    - Location of the activity
    - Purpose of intrusion
    - Consent dynamics
    - Impact on the claimant and context of information publication.

Liability for Misuse of Private Information: The Stage One Test of Reasonable Expectation of Privacy

The foundational test for determining liability in Misuse of Private Information (MPI) originates from the pivotal case of Campbell v MGN. The test comprises two distinct stages:

Threshold Requirement: Does the claimant (C) have a reasonable expectation of privacy regarding the information in question? This assesses whether the claimant's Article 8 informational interests are engaged.
Balancing Exercise: If Stage 1 is satisfied, is the claimant’s right to informational privacy outweighed by the defendant’s (D) interest in publishing the information? This involves weighing the defendant’s Article 10 interests (freedom of expression) against the claimant's Article 8 privacy rights.

Stage 1: Establishing a "Reasonable Expectation of Privacy"

General Application:
- In Campbell v MGN, it was observed that in certain situations, the expectation of privacy may be "obvious."
- In less clear circumstances, the court references guidance from Murray v Express Newspapers [2008] EWCA Civ 446.
The Objective Standard:
- Sir Anthony Clarke MR defined the approved test as: "what a reasonable person of ordinary sensibilities would feel if placed in the same position as the claimant and faced with the same publicity." The test is purely objective in nature.
Broad Question Factors:
  - According to Sir Anthony Clarke MR in Murray, the assessment of a reasonable expectation of privacy is comprehensive, taking into account:
    - The attributes of the claimant.
    - The nature of the activity the claimant was engaged in.
    - The location where the activity occurred.
    - The nature and purpose of the intrusion.
    - If there was an absence of consent and whether this was known or could be inferred.
    - The impact of disclosure on the claimant.
    - The context and purposes through which the information reached the publisher.

Examples of Information Satisfying the First Stage

Personal Correspondence:
- Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810: The court held that the contents of a personal letter, conveying private family matters, were private and warranted protection from public dissemination.
Information Related to Sexual Life:
- Mosley v NGN [2008] EWHC 1777 (QB): This case involved the claimant's sexual encounters being reported by a newspaper, reinforcing expectations around the privacy of intimate relationships.
Medical Conditions and Treatment:
- Campbell v MGN [2004] UKHL 22: Here, the publication of the claimant’s drug addiction treatment raised questions about the publication of the addiction fact versus treatment specifics.
Private Diaries:
- HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776: Diary entries, even previously shared with a limited audience, can satisfy the first stage of privacy protection.
Information from Intimate Friendships:
- McKennitt v Ash [2006] EWCA Civ 1714: This case protected personal information shared during an intimate friendship, emphasizing privacy over personal disclosures about relationships and emotional vulnerabilities.

Privacy Rights in Relation to Police Investigations

The General Rule:
- In ZXC v Bloomberg LP [2022] UKSC 5, the Supreme Court affirmed a reasonable expectation of privacy regarding police investigations and arrests prior to any charges being filed, aligning with earlier judgments in Richard v BBC [2018] EWHC 1837 (Ch).
Case Study: Richard v BBC:
- This case examined a police investigation of a historical sexual offence involving Cliff Richard, where no charges were ultimately brought.
Judicial Reasoning (Mann J):
- Mann J ruled that individuals under investigation have a reasonable expectation of privacy. The significant societal stigma linked to such investigations justifies this expectation. The need for privacy is amplified, as it mitigates the risk of reputational damage, which could persist regardless of the outcome of the investigation.

Misuse of Private Information and the Balancing of Rights

ZXC v Bloomberg and Media Investigations

Privacy Principle: ZXC v Bloomberg establishes a legitimate starting point for a reasonable expectation of privacy (REP) concerning information derived from state investigations.
Media Scope: The ruling is confined to state-led investigations and does not inherently prohibit reporting the results of a media organization's own investigations.
Legal Risk: Media outlets conducting independent investigations may still face risks of libel suits.

The Test for Misuse of Private Information (MPI)

Source: Established in Campbell v MGN as a two-stage test: * Stage 1: Does the claimant (C) have a reasonable expectation of privacy in the information? * Stage 2: Is C’s right to informational privacy outweighed by the defendant’s (D) right to freedom of expression?
Nature of Information: Information does not need to be true to satisfy Stage 1; it only needs to relate to private matters (e.g., P v Quigley [2008] EWHC 1051 (QB)).

The Stage 2 Balancing Exercise: Art 8 vs Art 10

Legal Standard: Per In re S [2004] UKHL 47, neither right (Art 8 or Art 10) has precedence; courts must apply an "intense focus on the comparative importance of the specific rights being claimed."
Relevant Factors: Guidance found in Von Hannover v Germany (No 2) (2012) 55 EHRR 15 and Axel Springer AG v Germany (2012) 55 EHRR 6.
Public Interest Variables: * Freedom of expression is stronger when contributing to a debate of general interest (crime, politics, sport). * "Public interest" is distinct from what the public is merely "interested in." * Tawdry celebrity allegations rarely meet the public interest threshold.
Precedent of Success: In Long Beach Ltd v Global Witness [2007] EWHC 1980 (QB), the defendant's right to publish a public official's financial dealings outweighed the claimant's Art 8 rights due to public responsibility.

Photographs in Public Places

General Rule for Adults: Typically, no REP exists for "ordinary" photographs taken in public. * John v Assoc Newspapers [2006] EWHC 1611 (QB): No REP for photo of Elton John in a tracksuit. * Stoute v NGN [2023] EWHC 232 (KB): No REP for claimants on a public beach; the image merely captured what any observer would have seen. * Campbell v MGN [2004] UKHL 22: Naomi Campbell "popping out to the shops" is not essentially private.
Contrasting View: Von Hannover v Germany (No 1) (2005) 40 EHRR 1 (ECtHR) suggests Art 8 includes "personality development," protecting a zone of human interaction even in public contexts.

Study Notes: MPI Case Law, and Harassment Legislation

Misuse of Private Information: Photographs in Public

Von Hannover v Germany (No 1) (2005) 40 EHRR 1: The ECtHR ruled that Article 8 protection includes a "zone of interaction" with others and "personality development," which can be interfered with by taking pictures of ordinary activities in public.
Peck v UK (2003) 36 EHRR 41: The local authority breached Article 8 rights by releasing CCTV footage of an individual with a knife attempting suicide in Brentwood on August 20, 1995. The disclosure was deemed a disproportionate interference that the applicant could not have foreseen.
Campbell: Distinguishes between being a passer-by in a street scene and being targeted by a zoom lens. Naomi Campbell had a reasonable expectation of privacy regarding photographs taken from a hidden location while she was leaving a Narcotics Anonymous (NA) center.
Weller v Associated Newspapers [2015] EWCA Civ 1176: Ruled that newspapers should not publish photographs of children on family outings without parental consent.

Remedies for Misuse of Private Information (MPI)

Injunctions: Interim non-disclosure orders are used to prevent publication until a full trial.
Section 12(3) HRA 1998: States that interim injunctions should only be granted if the court is satisfied the applicant is "likely" to establish that publication should not be allowed.
Cream Holdings Ltd v Banerjee [2004] UKHL 44: Clarified that "likely" generally means "more likely than not" that the claimant will succeed at trial.
Damages: Compensatory awards are available if information is already published, such as the $210,000$ awarded to Cliff Richard.

Protection from Harassment Act 1997

Originally designed to address stalking, it now provides redress for interferences with autonomy and psychological integrity.
Liability Test: Prohibits a "course of conduct" that amounts to harassment of another person, which the defendant knows or ought to know constitutes harassment.

Harassment and Trespass to the Person

Liability for Harassment

General Rule: Prohibits a course of conduct which amounts to harassment of another, which the defendant (D) knows or ought to know amounts to harassment.
Course of Conduct: Defined as conduct on at least two occasions in relation to the complainant. Conduct includes speech.
Legal Standard: Conduct must cause alarm or distress and must be "oppressive and unacceptable/unreasonable" as established in Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34.
Standard of Knowledge: D "ought to know" if a reasonable person in possession of the same information would think the conduct amounted to harassment.

Examples and Remedies

Case Examples: - Cheryl Cole’s claim against the press. - Roberts v Bank of Scotland [2013] EWCA Civ 882: Liability found after 547 calls regarding a credit limit despite the claimant (C) requesting they stop.
Remedies: Injunctions and damages for anxiety and financial loss.
Jones v Ruth [2011] EWCA Civ 804: established there is no foreseeability requirement; D is liable for harm flowing from their deliberate conduct.

Defences to Harassment

Statutory Defences: No liability if conduct was for preventing/detecting crime, authorized by law, or reasonable in the circumstances.
Hayes v Willoughby [2013] UKSC 17: The Supreme Court ruled that conduct pursued to prevent or detect crime must be "rational."

Trespass to the Person

Torts and Protected Interests: - Battery: Unlawful physical contact. - Assault: Threat of violence. - False Imprisonment: Deprivation of liberty. - Protects bodily/mental integrity and freedom of movement.
General Characteristics: - Must be committed intentionally; negligent harm is handled under negligence claims (Letang v Cooper [1965] 1 QB 232). - Must cause direct and immediate interference with C’s rights. - Actionable per se (without proof of damage).

Battery

Definition: Defined in Collins v Wilcock [1984] 1 WLR 1172 as "the actual infliction of unlawful force on another person."
Elements of Liability: - Intention to act. - Application of direct and immediate force. - The contact is unlawful.

tut:
EXEMPLAR EXAM QUESTION

Tommy is a leading television celebrity. Earlier today, during the recording of his television show (which was recorded in front of an audience of 400 people), a studio light fell on his head, seriously injuring him. He is now being treated in the intensive care unit at Sunnydale Hospital.

An hour ago, a reporter from The Daily Drivel newspaper photographed Tommy while he was lying in intensive care. Notices were displayed on the doors to the intensive care ward asking members of the public not to enter.

Harry, Tommy’s agent, is concerned that The Daily Drivel intends to publish both a story about the accident and the photograph of Tommy in intensive care in the next day’s newspaper and on its website.

Advise Harry on the prospects of using the tort of misuse of private information (MPI) to obtain an interim injunction to prevent publication of:
(a) the story that Tommy has had an accident; and
(b) the photograph of Tommy lying in intensive care.

MODEL ANSWER (FIRST‑CLASS / 1:1 STANDARD)

This problem concerns the tort of misuse of private information (MPI). The modern approach was set out by the House of Lords in Campbell v MGN and reaffirmed by the Supreme Court in ZXC v Bloomberg. The court applies a two‑stage test: first, whether the claimant has a reasonable expectation of privacy in the information; and second, if so, whether that privacy interest is outweighed by the publisher’s right to freedom of expression under Article 10 ECHR. As Harry seeks an interim injunction, the court must be satisfied that Tommy is likely to succeed at trial.

(a) Publication of the story that Tommy has had an accident

The first issue is whether Tommy has a reasonable expectation of privacy in the information that he was injured in an accident during the recording of his show. Tommy is a public figure, and the accident occurred at a recording attended by 400 members of the public. This significantly reduces the expectation of privacy in the fact of the accident itself. Information that is already known, or likely to become known, to a large group of people is less likely to attract protection.

In addition, there is a legitimate public interest in reporting that a celebrity has been injured at work during the recording of a television programme. The story relates to a workplace accident and the interruption of a popular show, rather than intimate details of Tommy’s private life. At the second stage of the test, Article 10 is likely to outweigh Tommy’s Article 8 rights in respect of the bare fact of the accident.

Accordingly, Tommy is unlikely to establish a reasonable expectation of privacy in relation to the story that he has been injured, and the prospects of obtaining an injunction to prevent publication of this information alone are weak.

(b) Publication of the photograph of Tommy in intensive care

The position is very different in relation to the photograph taken in the intensive care unit. Medical information is considered among the most private categories of information. A person receiving treatment in intensive care has a strong reasonable expectation of privacy, even if they are a public figure. This is reinforced by the presence of notices asking the public not to enter the ward, which clearly signal that the space is private.

In Campbell v MGN, the publication of photographs taken outside a treatment setting was held to infringe privacy; the intrusion here is even more serious. Similarly, the Supreme Court in ZXC v Bloomberg emphasised that the disclosure of sensitive personal information, especially relating to health, will ordinarily attract a reasonable expectation of privacy.

At the second stage, the newspaper would struggle to show that publication of the photograph serves a genuine public interest. While the public may be curious to see images of an injured celebrity, curiosity is not the same as public interest. Publication of the photograph adds little to any legitimate reporting of the accident and involves a serious intrusion into Tommy’s dignity and autonomy at a vulnerable time.

Given the strength of Tommy’s Article 8 rights and the limited Article 10 value of the photograph, the balance clearly favours privacy.

Conclusion

Tommy is unlikely to obtain an injunction preventing publication of the story that he has been injured, as there is no strong reasonable expectation of privacy in that information. However, he has a strong claim in misuse of private information in respect of the photograph taken in intensive care, and is likely to succeed in obtaining an interim injunction preventing its publication.