Misuse of private information

The Murray factors applied to the Meghan Markle case – when is there a reasonable expectation of privacy?

The Privacy Perspective1 Comment

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.

Parts of Meghan Markle’s claim against Associated Newspapers struck out following preliminary hearing

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On 1 May 2020 Mr Justice Warby handed down judgment concerning a pre-trial application by Associated Newspapers in its ongoing defence of claims of misuse of private information, copyright infringement, and breach of data protection rights by Meghan Markle, HRH The Duchess of Sussex.

Continue reading →

Cricketer Ben Stokes to bring misuse of private information claim against the Sun

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Law firm Brabners LLP has just issued a claim in the Chancery Division of the High Court against the Sun on behalf of client Ben Stokes. The claim is for misuse of private information in relation to an article run by the outlet which examined elements of the cricketers family life. Continue reading →

Misuse of private information

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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.