The Privacy Perspective

The England and Wales privacy of Murray v. Associated Newspapers [2007] EWHC 1908 (Ch) set out a number of criteria applicable to establishing whether there was a reasonable expectation of privacy in the matter at issue. This is one of the two part test for an action of misuse of private information to be made out.

The recent Markle case for misuse of private information applied the Murray criteria in by rote. The circumstances in which a publicised letter to the claimant’s father breached a reasonable expectation of privacy were broken down in a illustrative way, highlighting the effectiveness of the Murray criteria:

Factor One: Role and Status

(1) The claimant was a prominent member of the Royal Family,
and in that sense a public figure, who had a high public profile, and about whom much
had been and continued to be written and published; this is an important feature of the
background and the circumstances but

Factor Two: Was the nature of the activity she was engaged with private?

(2) the nature of the “activity” in which she had
engaged was not an aspect of her public role or functions; she was communicating to
her father about his behaviour, its impact on her, her feelings about it, and her wishes
for the future; and

(3) she was doing this in a letter sent to him alone, privately, by
means of a courier service.

Factor Three: What was the intrusion complained of?

(4) The “intrusion” involved the publication of much if not
most of the information in the Letter by way of sensational revelations over four pages
of a popular newspaper and online, to a very large readership; and that, in broad terms,
was the purpose of the “intrusion”.

Factor Four: Was there any consent to the intrusion?

(5) There was no consent, and it is beyond dispute
that this was known to or could have been inferred by Mr Markle and the defendant.

Factor Five: What was the impact of the disclosure?

(6) The unwanted disclosure was likely to cause the claimant at least some distress,
especially as it was done with the co-operation of her father, and in the context of a
detailed and critical response by him to the content of the Letter.

Factor Six: How was the information obtained?

(7) The information
was given to the defendant by the claimant’s father.