Prince Harry’s privacy claim against Mirror Group Newspapers and Hugh Grant’s against The Sun’s publisher News Group Newspaper have generated some interest in privacy laws.
Privacy claims that are widely reported usually involve well-known public figures and media organisations. However, breach of privacy is not only suffered by celebrities. A misuse of private information claim may be brought in respect of information less widely published if such gathering and publication interferes with a person’s right to private life.
The right to respect for private and family life is protected by the Human Rights Act 1998 (HRA 1998). Article 8(1) of HRA 1998 reads:
“Everyone has the right to respect for his private and family life, his home and his correspondence”. The House of Lords ruled in the case Naomi Campbell brought against Mirror Group Newspapers that misuse of private information claims are concerned with “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”.
Violation of privacy can take many forms, such as phone hacking, unauthorised accessing of emails and text messages, taking unauthorised photographs in private settings, or recording someone’s private activities without permission. The publication of such private information can also give rise to a claim.
What needs to be proved for a claim of misuse of private information?
First, the claimant must establish that they have a reasonable expectation of privacy in the information in question. If this has been proven, the next consideration is a balancing exercise between the competing rights of the parties involved, for example, the freedom to receive and impart information protected by Article 10 of HRA 1998. Furthermore, any countervailing public interest that may outweigh the claim for privacy would also be taken into account.
Whether a claimant has a reasonable expectation of privacy depends on all of the circumstances of the case and is therefore a highly factual inquiry. The Courts will take into account factors such as the nature of the information involved, the nature of the intrusion into the claimant’s private life, the claimant’s personal attributes, and the impact of the intrusion on the claimant. The intrusion needs to be serious enough to warrant the protection of the law; that is, trivial interference is not actionable.
The balancing exercise between competing rights is more commonly engaged in disputes between public figures and the media, in that, although some information has been gathered by intrusion, the public interest in publication of that information may outweigh the individual’s right to privacy.
The House of Lords has laid down principles of engaging in the balancing exercise in the case of Re S (a child) (Identification: Restrictions on Publication) [2004] UKHL 47:
“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.” (at para [17])
Proportionality is an exercise to determine, having considered all of the circumstances of the case, whether the interference with the claimant’s right to privacy is proportionate in the exercise of competing rights.
When the two stages of the enquiry have been satisfied, a defendant may raise defences to counter the claim. The most common defences are public interest and that the information concerned was already in the public domain and widely accessible and accordingly that any remedy would serve no useful purpose.
What are the remedies in a privacy claim?
The most powerful and common remedy is an injunction restraining the use and publication of the private information. Compensation for distress, injury to feelings, and loss of dignity is also recoverable. If there is proof of financial loss, damages for such loss can also be awarded.
Is misuse of private information the same as a breach of confidence?
There is much overlap between a breach of confidence and misuse of private information. The main difference is that the information concerned in a breach of confidence action, whilst confidential, is not necessarily private or concerning the claimant’s personal life. For instance, information that is confidential by reason of an agreement between commercial parties can be the subject matter of a breach of confidence claim but does not relate to any right to privacy.
Is misuse of private information the same as a data protection claim?
Data protection laws are governed by a different regime comprising the Data Protection Act 2018 and the UK GDPR. A data breach claim is often made together with a misuse of private information claim. However, a data breach does not have to be deliberate. It includes data breaches caused by inadvertent mistakes by data controllers and processors.
How can we help?
Kevin Modiri is a Partner in our expert Dispute Resolution team, specialising in charity law, civil disputes, insolvency, inheritance disputes, data breach claims and defamation claims.
If you need any advice concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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