£3billion class action against Google given the go-ahead – Lloyd v Google LLC [2019] EWCA Civ 1599

Mr Lloyd, a consumer protection advocate, brought a claim against Google for damages on behalf of 4m Apple iPhone users. It was alleged that Google secretly tracked some of their internet activity for commercial purposes between 9 August 2011 and 15 February 2012. Continue reading

The end of the kiss and tell story? – PJS v News Group Newspapers Ltd [2016] UKSC 26

The case of PJS concerned an application for an interlocutory injunction. PJS was well known in the entertainment business and married to YMA, who was similarly well known. They had young children. In 2007 or 2008 PJS met AB and had occasional sexual encounters with them despite AB having a partner, CD. In December 2011 PJS had a three-way sexual encounter with AB and CD following which the sexual relationship with PJS and AB came to an end. Continue reading

Ben Stokes and Gareth Thomas in the press – Protecting privacy in the spotlight

Many will have heard of the Sun’s recent egregious intrusion into the private and family life of cricketer Ben Stokes. The offending article by the Sun delves into the family life of the famous cricketer in a manner which could be seen to breach the privacy rights of Stokes and his family.

The incident has placed the conduct of English journalists, particularly the Sun, under the spotlight. INFORRM has an excellent post on the issue.

Stokes statement on the article, released on Twitter, can be found here.

Many will also be aware of the exposing of rugby player Gareth Thomas’ HIV status following black mail attempts. This move is highly invasive and could be considered a misuse of private information.

The Independent Press Standards Organisation has commented on the incidents. This notes how the Editor’s Code operates to protect individuals in such scenarios and condemns the sensationalist headlines of articles  intruding upon privacy rights.

Revisiting the right to be forgotten, the NT1 and NT2 case

The right to be forgotten or right to erasure under data protection legislation and enshrined from the Google Spain case allows significant protection of information regarding the individual. In this post, we consider the seminal case of NT1 and NT2 which is illustrative of this fact. Continue reading

Passing off

Passing off is typically used to protect a person’s name or image, which has attracted goodwill as a business commodity. There are three well-established elements of passing off as stated in the case of Reckitt & Colman Products Ltd v Borden Inc & Ors [1990] RPC 341:

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  1. Goodwill or reputation in the mind of the public attached to goods or services;
  2. The defendant misrepresented that their goods or services are that of the claimant’s; and
  3. The claimant suffered or is likely to suffer damages due to erroneous belief in the mind of the public that the defendant’s goods are the claimant’s.

A case which illustrates this is that of Fenty v Arcadia [2015] EWCA Civ 3, a case involving Rihanna bringing a passing off action against Topshop. The action arose from Topshop’s unauthorized use of an image of Rihanna on a line of t-shirts. It was first considered that:

  “registered trade marks aside, no-one can claim monopoly rights in a word or a name. Conversely, however, no-one may, by the use of any word or name, or in any other way, represent his goods or services as being the goods or services of another person and so cause that other person injury to his goodwill and so damage him in his business” – p.34

However, it was concluded that all elements of the tort were made out by the claimant. Rihanna had a marked presence in the fashion industry and had generated significant goodwill. By using her image on its t-shirts Topshop created a likelihood of confusion between customers that the t-shirts were endorsed by Rihanna herself. They were not. It was, therefore, considered Rihanna suffered damage due to the unauthorized use of her image. This was despite the fact that there is no standalone right to protect one’s image at law.

The Fenty case is illustrative of how passing off can be used to protect elements of the person which are inherently private identifying factors. The foremost of these being the likeness of a person or their name.

It should be noted that the rationale from protection in passing off cases in protecting the goodwill which attaches to these elements of the person. The nature of a passing-off action is, therefore, more akin to other economic torts such as malicious falsehood. Notwithstanding this nature, the propensity for passing off actions to be used to protect elements of the persona that attract inherent private character is significant.

Malicious falsehood

These claims stem from the malicious publication of a false statement which identifies the claimant and has caused them financial loss. These four elements must be proven by the claimant. What malicious falsehood seeks to protect is the claimant’s economic rights, primarily the goodwill in their business. Therefore, in many cases claimants will seek to show special pecuniary loss in the form of damages to business evidenced by loss of profits.

In some cases, however, no loss needs to be proven by the claimant. These instances are outlined in s3(1)(a) and (b) Defamation Act 1952 and typically involve instances, where the statement complained of, is in writing and was calculated to cause pecuniary damage to the plaintiff.

Malicious falsehood is firstly concerned with the falsity of a statement, rather than matters of comment or opinion the defamation is typically debated around.

“Some malicious falsehood claims also involve Art 8 (privacy) rights, although less frequently than in defamation claims” – Thornton v Telegraph Media Group Ltd [2011] EWHC 159 (QB) at p.33

The requirement for financial loss to be evidenced in malicious falsehood cases means that it less often covers Article 8 issues, as these are more likely to be personal attacks meriting Article 8 protection. As an economic tort malicious falsehood sits less easily with Article 8 issues than the personal tort of defamation (see Ajinomoto Sweetners Europe SAS v Asda Stores Limited [2010] EWCA Civ 609).

In a malicious falsehood claim damages are compensatory in nature. They seek to provide compensation for the pecuniary loss caused by the false statement.

As practical matter defamation and malicious falsehood claims are typically brought together. Covering Article 8 rights statements can include false allegations which impinge upon the private life of the claimant. These include mixed statements which have personal imputations which damage the claimant’s business, such as statements about infidelity or convictions.

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