Misuse of private information

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.

10 of the most significant English law privacy cases

Below we present a shortlist of some of the most important common law judgments under English law relating to privacy.  These cases underpin the development of privacy rights under English law. 

  1. Coco v A.N. Clark (Engineers) Ltd [1968] FSR 415

This case involved one of the most significant actions for breach of confidence of its time. This case set out the three elements of the breach of confidence action- the confidential information, told in a confidential setting which was used in an unauthorized manner.

This case was significant was the case underpinned early cases where privacy was the fundamental right at issue.

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Police forces use of facial recognition software determined lawful – R (Bridges) v Chief Constable of South Wales Police [2019] EWHC 2341 (Admin)

“The algorithms of the law must keep pace with new and emerging technologies.”- at p[1]

The Facts

The Administrative Court, with Haddon-Cave LJ and Swift J sitting, has heard the first case on the lawfulness of the police using automated facial recognition software (“AFR”). The case concerned the South Wales Police (“SWP”) use of AFR in two instances where they allegedly recorded the image of the Claimant. Once on 21 December 2017 at Queen Street Cardiff and another at the Defence Procurement, Research, Technology and Exportability Exhibition (“the Defence Exhibition”) on 27 March 2018. Continue reading

Voice command data and privacy protection, Part II- Apple’s Siri

Apple recently released a statement on its development of automated assistant Siri’s privacy protections. The result is a move towards doing everything right in safeguarding consumer privacy. When compared to Amazon’s protections for its Alexa service market shifts and best practice become clear, making for better adherence to the seven data protection principles underpinning the GDPR.
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Voice command data and privacy protection, Part I- Amazon Echo’s Alexa

AI pictureThe increasing encroachment of audio-activated devices into our personal lives presents unique privacy challenges. Recent events have prompted the review of how audio-activated devices collect, store, transmit and use data, prompting concern and highlighting a number of long term lessons to be learned.
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Citation: The access of mobile phones by the police – Owen Bowcott, The Guardian

The Guardian has posted on Privacy International’s recent challenge to mobile phone interception by the police force.

The issue centers around the extraction of data from mobile phones by the force. Software is used to download the files stored on the accessed mobile devices. NGO Privacy International is challenging the invasiveness and proportionality of the practice in harvesting personal data in the course of investigations.

red smartphone on white surface

The outcome of the case will have significant repercussions for mobile data privacy and mobile developments. Mobile privacy has been a hot topic issue since the US Apple vs. FBI encryption case in relation to the investigation of the San Bernadino Shootings in 2016. We will have coverage of the case once judgment is handed down.