Protecting privacy rights- Misuse of private information

In this series, we consider actions which function to protect the privacy of individuals under English Law in short digests.  

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 The tort of misuse of private information is relatively new and is the primary action which protects privacy rights under English law. To give effect to the European Convention of Human Rights Article 8, which enshrined the right to a private life, English common law (Campbell v MGN Ltd [2004] UKHL) 22 sought to extend the remit of the breach of confidence action to cover instances absent a pre-existing confidential relationship.

The result was the formation of the new tort of misuse of private information. The starting point in Campbell was that there was no cause of action for invasion of privacy. Mirror Group Newspapers, in disclosing information regarding Naomi Campbell’s drug addiction, has committed wrongful use of private information.

The elements of the tort are that:

  1. the Claimant must prove that they had a reasonable expectation of privacy in respect of the information at issue; and
  2. contrary interests, typically between privacy rights and freedom of expression, must be balanced.

A reasonable expectation of privacy arises typically, in the context of private information such as health matters. A reasonable expectation of privacy takes into account a broad number of elements from the individual themselves to the quality of information used and previous statements concerning the information. As in Campbell the information at issue may be broken down into categories from most private to least to enable the application of this test.

Managing competing interests typically involves a consideration of journalistic freedom of expression. This considers the public interest for and against the disclosure of the information. It will also consider the context in which the information is communicated. Interference with rights must be considered proportionate and justifiable.