TTP extends its best wishes to all those impacted by the coronavirus and hopes that all are safe and well. For those readers based in the UK the NHS coronavirus guidance can be found here and Government guidance here. Stay home, stay safe. Continue reading
Personal data, such as your name, likeness, birthday or any other information which can be used to identify you is highly sensitive.
Protecting and bringing actions on the basis of your personal data being harvested, used or misused is a key foundational right to privacy. Continue reading
Copyright under English law is primarily established under the Copyright Designs and Patents Act 1988. Copyright can extend to protect videos and images taken by you on your devices.
In such circumstances, these videos and images are protected 70 years from the end of the life of the taker. This can function to protect photographs and videos that you have taken from use by third parties. By enforcing your copyright ownership you can control who has the right to use and edit the images and/or footage in question. This is usually in the form of a cease and desist letter notifying the third party of your ownership of the material whilst asking that they stop usage as soon as possible.
Breach of confidence occurs when confidential information, as shared between parties in a manner which is confidential, is shared with a third party in breach of that duty of confidence. What imposes the duty to protect the information in a breach of confidence case is a pre-existing confidential relationship between the parties.
The case of Coco v A.N. Clark involved the claimant looking to bring a new form of moped to the market, parts of which were then sourced from a third party in breach of obligations of confidence. This case underpinned the three elements of the tort and highlights the most common scenario breach of confidence claims arise in; those involving business secrets and negotiations.
In relation to privacy breach of confidence tends to cover confidential conversations and communications where the nature of the information itself attracts a reasonable expectation of privacy. This may relate to communications with lawyers or medical professionals, for example.
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  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:
- the Claimant must prove that they had a reasonable expectation of privacy in respect of the information at issue; and
- 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.
Revisiting the case of Big Brother Watch and Others v. the United Kingdom
The operation of the UK’s surveillance services, MI5, MI6, GCHQ and the Metropolitan Police Service and their interaction with human rights (“Convention rights”) have historically been obscure to safeguard the interests of national security. The specifics of policy and practices when conducting national surveillance and its interaction with the private lives citizens have only come to light since the whistleblowing of Edward Snowden in 2013, catalyzing closer scrutiny of their potential to impinge upon the democratic freedoms.