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THE LAW OF PRIVACY

1. English law of privacy before the Human Rights Act 1998

The view that English law does not recognise invasion of privacy as an independent cause of action was clearly articulated by the Court of Appeal in Kaye v Robertson.1 Even at that time, however, that starting point was subject to two significant qualifications. First, the facts of cases in which privacy issues arise often constitute another cause of action that is recognised by English law, most notably for a breach of confidence. Lord Hoffmann in his 1996 Goodman Lecture2 expressed the view that breach of confidence—which was not even argued— might have afforded a basis for relief in Kaye v Robertson.3 In Attorney-General v Guardian Newspapers Ltd (No.2),4 Lord Keith referred to cases “where the breach of confidence involves no more than an invasion of personal privacy,” specifically mentioned Argyll v Argyll5 and marital confidences, and concluded that “the right to personal privacy is clearly one which the law should in this field seek to protect.” Second, even before the Human Rights Act 1988 came into force on 2 October 2000 it appeared that the law might be moving toward recognition of a discrete right of privacy of some description. In Morris v Beardmore6 the question was whether a motorist who refused to take a breath test at the request of a policeman who was trespassing at the time was acting unlawfully. The House of Lords held that he was not. The common law rights in question were trespass to land and physical compulsion to blow into a breathalyser. Lord Edmund Davies, Lord Keith, Lord Scarman and Lord Roskill nevertheless alluded to the exercise of the relevant police powers in terms of invasion of privacy. Lord Scarman referred to the “invasion of fundamental private rights and liberties” and said that “the adjective …‘fundamental’…is apt to describe the importance attached by the common law to the privacy of the home.” Lord Roskill referred to “the right of the ordinary citizen not to have his property, and thus his privacy, invaded against 1 [1991] F.S.R. 62: “It is well-known that in English law there is no right to privacy, and

accordingly there is no right of action for breach of a person’s privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals”, per Glidewell L.J. at 66; “This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens”, per Bingham L.J. at 70; “This right has so long been disregarded here that it can be recognised now only by the legislature”, per Leggatt L.J. at 71.

2 Lord Bingham, on the other hand, saw a need for development: see “Should There be a Law to Protect Rights of Personal Privacy?” [1996] E.H.L.R. 45.

3 [1991] F.S.R. 62. 4 [1990] 1 A.C. 109 at 255. 5 [1967] Ch. 302. 6 [1981] A.C. 446; [1980] 2 All E.R. 753.

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his will, save where such invasion is directly authorised by law.” In R. v Khan,7 Lord Nolan said that there was no right of privacy in English law in terms similar to Art.8 of the Convention, and Lord Keith agreed with him. As against that, Lord Browne-Wilkinson, Lord Slynn and Lord Nicholls expressly left open the question whether English law recognised a right of privacy, and, if so, what were the limitations of that right. Lord Nicholls referred to “the important question whether the present, piecemeal protection of privacy has now developed to the extent that a more comprehensive principle can be seen to exist.”

2. The Human Rights Act 1998 and relevant Convention rights

In accordance with s.1 of the Human Rights Act 1998, the Convention rights to which the Act applies include the rights and fundamental freedoms set out in Arts. 8 and 10 of the Convention. The rights set out in both Articles are qualified. In the case of Art.8, the qualifications include the Art.10 right to freedom of expression. In the case of Art.10, the qualifications include both the Art.8 right to respect for private and family life and the protection of information received in confidence. Although the latter is not, itself, a Convention right - any more than the right to protection of reputation is a Convention right – it is unclear whether this makes any, or any significant, difference in practice when the courts are required to carry out a balancing exercise between competing rights. In Cream Holdings Ltd v Banerjee,8 for example, the confidential information was of a commercial nature, but there is no suggestion in the speeches of their Lordships that, on this ground, and as a matter of principle, less weight should be attached to the protection to which it might be entitled. In similar vein, so far as protection of reputation is concerned, the distinction between Convention rights, on the one hand, and societal interests, on the other hand, has been reduced or eliminated, at least in the case of claims by individuals, by the recognition that the right to protection of reputation is part of the right to respect for private and family life that is guaranteed by Art. 8.9 In the case of both Art. 8 and Art. 10, the restrictions can only apply where three conditions are satisfied. First, the restrictions must pursue a legitimate aim or aims. Second, the restrictions must be “prescribed by law”: in other words, they must be easily accessible and formulated with sufficient precision for the ordinary citizen to rely upon them to regulate his conduct.10 Third, they must be necessary in a democratic society for the protection of the legitimate aim or 7 [1997] A.C. 558; [1996] 3 All E.R. 289. 8 [2004] UKHL 44; [2005] 1 A.C.253.

9 See Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462, [2005] Q,B. 972, para. 68, citing Affaire Radio France v France Reports of Judgments and Decisions 2004-II, p 83, at para 31.

10 Sunday Times v United Kingdom (No.1) (1979–80) 2 E.H.R.R. 245; Rantzen v Mirror Group Newspapers Ltd [1994] Q.B. 670 at 693; [1993] 4 All E.R. 975.

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aims of the countervailing rights or qualifications: in other words, they must be proportionate to the end pursued, securing what is necessary for the protection of those countervailing rights or qualifications and no more. The structure of both Articles, the interrelationship between them, and the correct approach to the application of each of the rights that they guarantee in accordance with the jurisprudence of the European Court of Human Rights, have been summarised in a number of cases, for example by Baroness Hale in Campbell v MGN Ltd:11

“Each right has the same structure. Article 8(1) states that "Everyone has the right to respect for his private and family life, his home and his correspondence". Article 10(1) states that "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers ..." Unlike the article 8 right, however, it is accepted in article 10(2) that the exercise of this right "carries with it duties and responsibilities". Both rights are qualified. They may respectively be interfered with or restricted provided that three conditions are fulfilled. (a) The interference or restriction must be "in accordance with the law"; it must have a basis in national law which conforms to the Convention standards of legality. (b) It must pursue one of the legitimate aims set out in each article. Article 8(2) provides for "the protection of the rights and freedoms of others". Article 10(2) provides for "the protection of the reputation or rights of others" and for "preventing the disclosure of information received in confidence". The rights referred to may either be rights protected under the national law or, as in this case, other Convention rights. (c) Above all, the interference or restriction must be "necessary in a democratic society"; it must meet a "pressing social need" and be no greater than is proportionate to the legitimate aim pursued; the reasons given for it must be both "relevant" and "sufficient" for this purpose.”

It has been said that the right to freedom of expression is a constitutional right and that “by categorising this basic and fundamental right as a constitutional right its higher normative force is emphasised.”12 As a matter of Convention law, the position is that, in deciding whether a given interference with free expression is necessary in a democratic society, the court “is faced not with a choice between two conflicting principles, but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted.”13 However, there is no hierarchy of rights as between Art.8 and Art.10. This appears, for example, from Council of Europe Resolution 1165 of 1998:

“11. The Assembly reaffirms the importance of every person’s right to privacy, and of the right to freedom of expression, as fundamental to a democratic society. These rights are neither absolute nor in any hierarchical order, since

11 [2004] A.C. 457 at para. 139. 12 R v Secretary of State for the Home Department, Ex p. Simms [2000] 2 A.C. 115 at 126 per Lord

Steyn. See also: Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127; [1999] 4 All E.R. 609; McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 A.C. 277; [2000] 4 All E.R. 913.

13 Sunday Times v United Kingdom (No.1) (1979–80) 2 E.H.R.R. 245 at 281. See also: Bergens Tidende v Norway (2001) 31 E.H.R.R. 16; Bladet Tromso v Norway (2000) 29 E.H.R.R. 125; 6 B.H.R.C. 599.

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they are of equal value.”

The correct approach in cases in which there is an interplay between Arts. 8 and 10 was explained by Lord Steyn, with whom the other members of the House of Lords agreed, in Re S (A Child) (Identification: Restrictions on Publication):14

“What does, however, emerge clearly from the opinions [in Campbell v MGN Ltd [2004] A.C. 457] are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test”.

3. The effect of the Human Rights Act 1998

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. By virtue of section 6(3), a “public authority” includes a court or tribunal.. Further, section 2 requires any court or tribunal determining a question which has arisen in connection with a Convention right to take into account any relevant Strasbourg jurisprudence. The effect of these provisions is to make it the duty of the court to exercise its judicial powers in a way that is compatible with Convention rights, as interpreted by the Strasbourg institutions and the English courts, even if it means not following previous case law which would otherwise have been binding on the court at common law: thus a court is not bound by previous decisions of English courts which are incompatible with Convention rights, unless those previous decisions have had regard to and given effect to any relevant Convention right and relevant case law. The Convention rights in accordance with the Act do not include Art.1, which forms the foundation of the positive duty of a State when it is brought before the Strasbourg court, which has the duty of enforcing the duties of Member States under the Convention. At one time it was thought that this raised a potential difficulty for a court called upon to determine a question which has arisen in connection with a Convention right within the meaning of the Act, and which is required to take into account a relevant Strasbourg judgment which has made it clear that the law-making body of the Member States has a positive duty.15 However, guidance as to the correct approach was given in Venables v News

14 [2005] 1 A.C. 593 at para. 17. The case concerned the appropriateness of an injunction which

restrained the publication of the name of a defendant and her deceased child in the context of the reporting of a pending criminal trial in which a mother was charged with murdering her child. The purpose of the injunction was to protect the welfare of the mother's younger child.

15 Douglas v Hello! Ltd [2001] Q.B. 967, per Brooke LJ at para. 91.

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Group Newspapers Ltd,16 where Dame Elizabeth Butler-Sloss P. stated: “The decisions of the European Court of Human Rights in Glaser’s case17 and X and Y v The Netherlands,18 seem to dispose of any argument that a court is not to have regard to the Convention in private law cases …. ….That obligation on the court does not seem to me to encompass the creation of a free-standing cause of action based directly upon the articles of the Convention ….The duty on the court, in my view, is to act compatibly with Convention rights in adjudicating upon existing common law causes of action, and that includes a positive as well as a negative obligation.”19

Essentially the same approach was endorsed by the House of Lords in Campbell v MGN Ltd.20 Lord Nicholls said:

“The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. As Lord Woolf CJ has said, the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action: A v B plc [2003] QB 195, 202, para 4. Further, it should now be recognised that for this purpose these values are of general application. The values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority. In reaching this conclusion it is not necessary to pursue the controversial question whether the European Convention itself has this wider effect. Nor is it necessary to decide whether the duty imposed on courts by section 6 of the Human Rights Act 1998 extends to questions of substantive law as distinct from questions of practice and procedure. It is sufficient to recognise that the values underlying articles 8 and 10 are not confined to disputes between

16 [2001] Fam. 430; [2001] 1 All E.R. 908 at paras 25–27. And in Douglas v Hello! Ltd [2001] 1

Q.B. 967; [2001] 2 All E.R. 289 Brooke L.J. observed at para.91: “Where Parliament in this country has been so obviously content to leave the development of the law to the judges, it might seem strange if the absence of Art.1 from our national statute relieved the judges from taking into account the positive duties identified by the court at Strasbourg when they develop the common law.”

17 Glaser v United Kingdom [2000] 3 F.C.R. 193 at 208–209; [2001] 1 FLR 153; (2001) 33 E.H.R.R. 1, where the European Court of Human Rights, sitting as a Chamber, declared admissible an application by a father seeking the enforcement of contact orders made in private law proceedings between him and the mother of his children.

18 (1985) 8 E.H.R.R. 235. 19 In addition to the cases cited in this passage, see Stjerna v Finland (1994) 24 E.H.R.R. 195, para.

38 and Verliere v Switzerland Reports of Judgments and Decisions 2001-VII, p 413 and Von Hannover v Germany [2004] 40 E.H.R.R. 1, at para. 57: “The court reiterates that although the object of article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the state to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves … That also applies to the protection of a person's picture against abuse by others.”

20 [2004] 2 A.C. 457. See, also, Baroness Hale at paras. 132-133 (“The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties' Convention rights … our law cannot, even if it wanted to, develop a general tort of invasion of privacy. But where existing remedies are available, the court not only can but must balance the competing Convention rights of the parties.”).

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individuals and public authorities.”21 In Douglas v Hello! Ltd (No 3)22 the Court of Appeal carried out an extensive review of the case law, and concluded that:

“in so far as private information is concerned, we are required to adopt, as the vehicle for performing such duty as falls on the courts in relation to Convention rights, the cause of action formerly described as breach of confidence. As to the nature of that duty, it seems to us that sections 2, 3, 6 and 12 of the Human Rights Act 1998 all point in the same direction. The court should, in so far as it can, develop the action for breach of confidence in such a manner as will give effect to both article 8 and article 10 rights. In considering the nature of those rights, account should be taken of the Strasbourg jurisprudence. In particular, when considering what information should be protected as private pursuant to article 8, it is right to have regard to the decisions of the European Court of Human Rights.”23

4. Section 12 of the Human Rights Act 1998

Section 12 of the Human Rights Act 1998 includes the following: “12. - (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression… (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to- (a) the extent to which- (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.”

The meaning to be given to the word ‘likely’ in s.12(3) has been explained in Cream Holdings Ltd v Banerjee24 as follows:

“… section 12(3) makes the likelihood of success at the trial an essential element in the court's consideration of whether to make an interim order. But in order to achieve the necessary flexibility the degree of likelihood of success at the trial needed to satisfy section 12(3) must depend on the circumstances. There can be no single, rigid standard governing all applications for interim restraint orders. Rather, on its proper construction the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the

21 paras. 17-18. 22 [2006] Q.B. 125. 23 para.53. 24[[2005] 1 A.C. 253 at para. 22.

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court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave, or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial or any relevant appeal.”

In this regard, the Court of Appeal in Douglas v Hello (No 3) said25: “Of course, as recently emphasised by the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, a claimant seeking an interlocutory injunction restraining publication has to satisfy a particularly high threshold test, in light of section 12(3) of the Human Rights Act 1998.” As to s.12(4), one of the matters that the Court is required by s.12(4)(b) to take into account is any relevant media code. The Press Complaints Commission Code of Conduct, for example, provides, among other things, as follows:

 “3 *Privacy. (i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications. Editors will be expected to justify intrusions into any individual’s private life without consent. Note – Private places are public or private property where there is a reasonable expectation of privacy. The Public Interest There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest. 1. The public interest includes, but is not confined to: (i) Detecting or exposing crime or a serious impropriety. (ii) Protecting public health and safety. (iii) Preventing the public from being misled by some statement or action of an individual or organisation. 2. There is a public interest in the freedom of expression itself. 3. Whenever the public interest is invoked, the PCC will require editors to demonstrate fully how the public interest was served. 4. The PCC will consider the extent to which material is already in the public domain, or will become so. 5. In cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child.”

In Douglas v Hello! Ltd26 Brooke L.J. said that “… the existence of these statutory provisions, coupled with the current wording of the relevant privacy code, mean that in any case where the court is concerned with issues of freedom of expression in a journalistic, literary or artistic context, it is bound to pay particular regard to any breach of the rules set out in clause 3 of the code, especially where none of the public interest claims set out in the preamble to the code is asserted. A newspaper which flouts clause 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression

25 [2006] Q.B. 125 at para. 258. 26 [2001] QB 967 at para 94.

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trumped by article 10(2) considerations of privacy”.

5. Infringement of privacy as a free-standing tort

In Campbell v MGN Ltd27 the Court of Appeal recognised a distinction between infringement of privacy as a free-standing tort (which occurs where there is intrusion into privacy which does not involve disclosure of private facts) and infringement of privacy as a species of breach of confidence (which involves the misuse or disclosure of personal or private information). The Court of Appeal stated that the courts were in the process of identifying, on a case-by-case basis, the principles by which the law of confidentiality must accommodate the rights under Art.8 and Art.10 of the Convention. The Court observed that the development of the law of confidentiality since the Human Rights Act 1998 came into force had seen information described as “confidential” not only where it has been confided by one person to another, but also where it related to an aspect of an individual’s private life which he chose not to make public, and that it considered that the unjustifiable publication of such information would better be characterised as a breach of privacy rather than as a breach of confidence. When Campbell v MGN Ltd28 reached the House of Lords, Lord Nicholls said that: “The continuing use of the phrase ‘duty of confidence’ and the description of the information as ‘confidential’ is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called ‘confidential’. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.”29 Lord Hoffmann said: “This House decided in Wainwright v Home Office [2004] 2 AC 406 that there is no general tort of invasion of privacy. But the right to privacy is in a general sense one of the values, and sometimes the most important value, which underlies a number of more specific causes of action, both at common law and under various statutes. One of these is the equitable action for breach of confidence, which has long been recognised as capable of being used to protect privacy.”30 Although these were the minority speeches, there is no suggestion in the speeches of the majority that they disagreed with these statements. In Wainwright v Home Office31 the House of Lords had held that there is no 27[2002] EWCA Civ 1373; [2003] Q.B. 633; [2003] 1 All E.R. 224. 28 [2004] A.C. 457 29 para. 14. 30 para. 43 31 [2004] 2 A.C. 406. The facts, as summarised in the headnote, were as follows: “The claimants, a

mother and son, were strip-searched for drugs on a prison visit in 1997. The search was not conducted according to rule 86 of the Prison Rules 1964, and the claimants were humiliated and distressed. No drugs were found. The second claimant, aged 21, who was mentally impaired and suffered from cerebral palsy, developed post-traumatic stress syndrome. They claimed damages

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common law tort of invasion of privacy, that the creation of such a tort would be a matter for legislation, and that the adoption of a right of privacy as a principle of law in itself is not necessary to comply with Art.8 of the Convention. At the same time, Lord Hoffmann32, giving the leading speech with which each of the other members of the House of Lords agreed, cited the evolution of the law of confidence in recent years, in particular as appears from the judgment of the Court in Campbell v MGN Ltd33, as an illustration of the judicious development of an existing principle to cover cases in which the courts have considered that an invasion of privacy deserves a remedy which the existing law does not offer. Lord Hoffmann nevertheless left open to doubt the extent to which the law of confidence could properly be developed any further than was contemplated by the decision of the Court of Appeal in Campbell v MGN Ltd34, concluding his observations that are quoted below35 with the following remarks36:

“I do not understand Sedley L.J. to have been advocating the creation of a high-level principle of invasion of privacy. His observations are in my opinion no more (although certainly no less) than a plea for the extenstion and possibly renaming of the old action for breach of confidence. As Buxton L.J. pointed out in this case in the Court of Appeal37, such an extension would go further than any English court has yet gone and would be contrary to some cases (such as Kaye v Robertson)38 in which it positively declined to do so. The question must wait for another day. But Sedley L.J.’s dictum does not support a principle of privacy so abstract as to include the circumstances of the present case.”

Speaking extra-judicially,39 Sedley L.J. has said recently that the real wrong that was done to the claimants in Wainwright was “the violation of their personal dignity and autonomy, the core values of a privacy right”. Describing the case as “a paradigm opportunity to acknowledge a true privacy right”, Sedley L.J. lamented the House of Lords’ decision to decline to allow such a claim to enter the common law,40 and commented that “The result was that it was still only

for trespass, and the second claimant claimed, in addition, damages for battery. The judge held that trespass to the person, consisting of wilfully causing a person to do something to himself which infringed his right to privacy, had been committed against both claimants, and, further, that trespass to the person, consisting of wilfully causing a person to do something calculated to cause harm to him, namely infringing his legal right to personal safety, had been committed against the second claimant, as had battery. He awarded basic and aggravated damages of £2,600 to the first claimant and £4,500 to the second claimant. The Court of Appeal allowed the Home Office's appeal against the finding of trespass, dismissed the first claimant's claim and reduced the award of damages to the second claimant.” The claimants’ appeal to the House of Lords was dismissed.

32 para.18. 33 [2002] EWCA Civ 337; [2003] Q.B. 135; [2002] 2 All E.R. 545. 34 [2002] EWCA Civ 337; [2003] Q.B. 135; [2002] 2 All E.R. 545. 35 In the footnotes to Part 6, sub-paragraph (iii). 36 para.30. 37 [2002] Q.B. 1334, 1361–1362, paras 96–99. 38 [1991] F.S.R. 62. 39 In his Blackstone Lecture “Sex, Libels and Video-surveillance” of 13 May 2006. 40 The events in issue preceded the coming into force of the Human Rights Act 1998.

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where by some artifice of reasoning a violation of privacy could be allocated to a relationship of confidence that the common law would intervene”. That conclusion would appear to be correct. Whether and for how long that will continue to be the position, however, remains to be seen. The Wainwrights took their case to Strasbourg, and succeeded. In Wainwright v UK,41 the European Court of Human Rights held that the treatment to which they had been subjected was negligent and fell short of the level of severity necessary to constitute a breach of Art. 3; but that Art. 8 also protects physical and moral integrity, and, as the searches had not been proportionate to the aim of preventing crime and disorder in the manner in which they had been carried out, there was a violation of Art. 8; that the absence of an effective domestic remedy, in particular the absence of a general tort of invasion of privacy, resulted in a breach of Art. 13; and that they should be awarded 3,000 Euros each as damages for distress. In the meantime, albeit on a piecemeal basis, some privacy interests are recognised and protected by various legislative provisions and codes (e.g. the Data Protection Act 1998, the Protection from Harassment Act 1997 and the CCTV Code of Practice issued by the Data Protection Commissioner pursuant to s.51(3)(b) of the Data Protection Act 1998).

6. Privacy and confidence since the Human Rights Act 1998

Almost as soon as the Human Rights Act 1998 came into force, the courts began grappling with the differences between the elements and parameters of the traditional claim for breach of confidence and the claim for protection of private information, and with whether this was any more than a labelling issue. In Douglas v Hello! Ltd42, Sedley L.J. said:

“What a concept of privacy does, however is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.”43

In the same case, Keene L.J. said:

“The nature of the subject matter or the circumstances of the defendant’s activities may suffice in some instances to give rise to liability for breach of confidence. That approach must now be informed by the jurisprudence of the Convention in respect of article 8. Whether the resulting liability is described as being for breach of confidence or for breach of a right of privacy maybe little more that deciding what label is to be attached to the cause off action, but

41 Application No 12350/04; judgment of 26 September 2006. 42 [2001] Q.B. 967 43 para. 126.

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there would seem to be merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned.”44

Thereafter, as discussed in further detail below, the courts began to give effect to privacy interests by expanding the boundaries of the law of confidence. In A v B plc45 the Court of Appeal set out guidelines to be followed by judges of first instance on applications for interim injunctions in cases involving personal information. The Court explained that:

“The applications for interim injunctions have now to be considered in the context of Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. These articles have provided new parameters within which the court will decide, in an action for breach of confidence, whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified. The court’s approach to the issues which the applications raise has been modified because, under section 6 of the 1998 Act, the court, as a public authority, is required not to act ‘in a way which is incompatible with a Convention right’. The court is able to achieve this by absorbing the rights which Articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.”46

The guidelines laid down by the Court of Appeal included the following:

“(vi) It is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy. In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act 1998 came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection. This means that at first instance it can be readily accepted that it is not necessary to tackle the vexed question of whether there is a separate cause of action based upon a new tort involving the infringement of privacy. (ix) …A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected: see Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd (No.2).47 The range of situations in which protection can be provided is therefore extensive. Obviously, the necessary relationship can be expressly created. More often its existence will have to be inferred from the facts. Whether a duty of confidence does exist which courts can protect, if it is right to do so, will depend on all the circumstances of the relationship between the parties at the time of the threatened or actual breach of the alleged duty of confidence. (x) If there is an intrusion in a situation where a person can reasonably expect his privacy to be respected then that intrusion will be capable of giving rise to liability in an action for breach of confidence unless the intrusion can be

44 para. 166. 45 [2002] EWCA Civ 337; [2003] Q.B. 195; [2002] 2 All E.R. 545. 46 para.4. 47 [1990] 1 A.C. 109 at 281.

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justified …”.48 It seemed tolerably clear from this general statement of principle and these particular guidelines that where a person has a reasonable expectation of privacy he or she has a right to be protected against intrusion into that privacy, and that the law of confidence will provide protection for that right unless the intrusion in question can be justified. The fact that the Court of Appeal intended to make clear that the right of protection against intrusion on personal privacy falls within, and, in the era following the coming into force of the Human Rights Act 1988, could properly be assimilated into, the law of confidence was apparent from the re-formulation of Lord Goff’s words in Attorney-General v Guardian Newspapers Ltd (No.2)49 that appear in guideline (ix).50 These propositions have been borne out by subsequent cases, discussed both above and below. However, the path which English law has chosen to follow has not made matters at all straightforward either for litigants or for the Courts. In this regard, the Court of Appeal in Douglas v Hello! Ltd (No 3)51 remarked: “We cannot pretend that we find it satisfactory to be required to shoehorn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion”. As time has gone on, the practical effect of this process has been to create a cause of action relating to the misuse of personal or private information that, in all but name, is distinct from the traditional cause of action of breach of confidence.52 As is apparent from the discussion below, when transposed to cases involving the use or disclosure of personal or private information both the essential elements of an actionable breach of confidence and the limiting principles that apply to that cause of action have either effectively been dispensed with or have undergone substantial qualification or metamorphosis. It is suggested that the principal reasons for this are not difficult to identify: essentially, the underlying values and interests (that is to say, personal autonomy and protection from intrusion) that are jeopardised by the misuse of personal or private information differ in significant respects from the underlying values and interests that are recognised and protected by more traditional claims for breach of confidence. And, where such differences exist, it is unsurprising that there should be differences as to the legal tests that are applicable, as to what is required before the law will grant protection, and as to the circumstances in which and the form in which the courts will be prepared to provide a remedy. 48 [2002] EWCA Civ 337; [2003] Q.B. 195; [2002] 2 All E.R. 545 at para.11. 49 [1990] 1 A.C. 109 at 281. 50 See, further, Douglas v Hello! Ltd [2003] EWHC 786, Ch, Lindsay J. paras 186(ix)–(x). 51 [2006] Q.B. 125, at para. 53. 52 In his Blackstone Lecture “Sex, Libels and Video-surveillance” of 13 May 2006, Sedley LJ said

that “There are well –recognised constitutional objections to the creation by the courts of new torts. There are fewer such objections to the development, and even the renaming, of old causes of action to meet new conditions…Yet the situation we have now reached, where privacy is entitled to the protection of the law in everything but name, reduces the distinction between development and innovation to an abstraction”.

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In any event, there would seem to be little doubt that the decision of the Court of Appeal in Douglas v Hello! Ltd (No 3) 53 contains a recognition that English law must keep up with the developing jurisprudence concerning Arts. 8 and 10. So far as photographs are concerned, in the light of the decision of the European Court of Human Rights in Von Hannover v Germany54it may be open to question whether it is right to say, at least without qualification, as Baroness Hale did in Campbell v MGN Ltd 55 that “If this had been, and had been presented as, a picture Naomi Campbell going out her business in a public street, there could have been no complaint … Readers will obviously be interested to see ho she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life”.56 However, while recognising the “fundamental distinction” that was articulated in Von Hannover v Germany57 “between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual”,58 it would not appear that the English courts have adopted, or at least applied universally, the further statement contained in that case that “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest”. 59 That another area may be ripe for development is suggested by the observation of the Court of Appeal that “to date the English courts appear to have taken a less generous view of the protection that the individual can reasonably expect of his or her sexual activities than has the Strasbourg court”.60

(i) The essential elements of an actionable breach of confidence

The conventional starting point for considering the nature and scope of the duty of confidentiality remains61 the three-fold test identified in the judgment of Megarry J. in Coco v A N Clark (Engineers) Ltd:62

53 [2006] Q.B. 125. 54 [2005] E.M.L.R. 379; [2004] 40 E.H.R.R. 1. 55 [2004] 2 A.C. 457.. 56 para.154. 57 [2005] E.M.L.R. 379; [2004] 40 E.H.R.R. 1. 58 para. 63. 59 para. 76. 60 Douglas v Hello! Ltd (No 3) [2006] Q.B. 125, para. 73. 61 See R. v Department of Health, Ex p. Source Informatics Ltd [2001] Q.B. 424; [2001] 1 All E.R.

786, para.14; Douglas v Hello! Ltd (No 3) [2006] Q.B. 125, para. 55. 62 [1969] R.P.C. 41 at 47. The information in that case was technical information which was of

value for commercial purposes; it was held not to be of a confidential nature because it was already in the public domain. See more recently: Murray v Yorkshire Fund Managers Ltd [1998] 1 W.L.R. 96, CA; A v B plc [2001] 1 W.L.R. 2341; [2002] 1 All E.R. 449.

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“In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1948] 65 R.P.C. 203 at 215; [1963] 3 All E.R. 413 (Note) must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”

In Attorney-General v Guardian Newspapers Ltd (No.2)63 Lord Goff of Chieveley stated the broad, general principle (non-definitively) as being:

“that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others ... in the vast majority of cases ... the duty of confidence will arise from a transaction or relationship between the parties ... But it is well settled that a duty of confidence may arise in equity independently of such cases ...”

(ii) The first element: the necessary quality of confidence

The necessary quality of confidence is that “the information must not be something which is public property and public knowledge”.64 In other words, in order to be confidential the information must have about it “the basic attribute of inaccessibility”.65 Information ceases to have this quality once it has entered the public domain, which means “no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential”.66 Whether information is so generally accessible that it is not confidential is a matter of fact and degree. Relevant considerations include the realities of accessibility, the nature of the information, and the lapse of time since dissemination took place. For example, information in a library book filed under a specialised heading or on the website of a government department which would not be accessed without some degree of background knowledge may not be “realistically accessible” or properly regarded as “public knowledge”.67 In addition, “it is not possible in a case about personal information simply to apply Lord Goff’s test of whether the information is generally accessible, and to

63 [1990] 1 A.C. 109 at 281. 64 Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1948] 65 R.P.C. 203 at 215. In

Douglas v Hello! Ltd (No 3) [2005] Q.B. 125, para. 55, the Court of Appeal said: “This is not the clearest of definitions. It seems to us that information will be confidential if it is available to one person (or a group of persons) and not generally available to others, provided that the person (or group) who possesses the information does not intend that it should become available to others”.

65 Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 A.C. 109 at 215. 66 See Attorney-General v Guardian Newspapers (No.2) Ltd [1990] 1 A.C. 109 at 282. 67 Attorney-General v Greater Manchester Newspapers Ltd [2001] T.L.R. 668; (2001) 145 S.J.L.B.

279, paras 33–34.

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conclude that, if it is, then that is an end of the matter”.68 So far as personal information is concerned “the fact that a matter has once been in the public domain cannot prevent its resurrection, possibly many years later, from being an invasion of privacy. Whether in such a case there is an unwarranted invasion of privacy is a matter of fact and degree”.69 As discussed above, this type of invasion of privacy forms part of the developing law of confidence. In this area, it seems clear from the following decided cases70 that the consideration that personal information is generally accessible does not of itself necessarily present a bar to the grant of relief to prevent it from being used, further disseminated, or republished, where such use or disclosure has an adverse impact on Art. 8 rights: A v M (Family Proceedings:Publicity)71 (children likely to suffer harm if allegations already made public were repeated); R(Robertson) v Wakefield MDC72and R(Robertson) v Secretary of State for Home Department73 (restraint on use of addresses on electoral register for direct marketing); X and Y (Children), Re74 (restraint on republication of information already in the public domain, where it would have a significant effect on the Art. 8 rights of children); Green Corns Ltd v Claverley Group Ltd75 (restraint on newspaper publication of addresses of houses used to provide care for troubled children, including addresses which could be ascertained by a search of H.M. Land Registry). In Douglas v Hello! Ltd (No 3)76 the Court of Appeal stated:

“In general, however, once information is in the public domain, it will no longer be confidential or entitled to the protection of the law of confidence, though this may not always be true: see Gilbert v Star Newspaper Co Ltd (1894) 11 TLR 4 and Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444, 456. The same may generally be true of private information of a personal nature. Once intimate personal information about a celebrity's private life has been widely published it may serve no useful purpose to prohibit further publication. The same will not necessarily be true of photographs. In so far as a photograph does more than convey information and intrudes on privacy by enabling the viewer to focus on intimate personal detail, there will be a fresh intrusion of privacy when each additional viewer sees the photograph and even when one who has seen a previous publication of the photograph is confronted by a fresh publication of it … There is thus a further important potential distinction between the law relating to private information and that relating to other types of confidential information.”77

68 Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 (QB); [2005] E.M.L.R. 31 para. 78. 69 R. v BCC Ex p. Granada Television Ltd [1995] E.M.L.R. 163 at 168. 70 See also Venables v News Group Newspapers Ltd [2001] Fam. 430, [2001] 1 All E.R. 908 and

Attorney-General v Greater Manchester Newspapers Ltd [2001] T.L.R. 668; (2001) 145 S.J.L.B. 279.

71 [2001] 1 F.L.R. 562 72 [2001] EWHC Admin 915, [2002] Q.B. 1052 73 [2003] EWHC 1760 74 [2004] EWHC 762, [2004] E.M.L.R. 29 75 [2005] EWHC 958 (QB). [2005] E.M.L.R. 31 76 [2006] Q.B. 125 77 para.105.

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As these considerations are unlikely to be held to be applicable to commercial information, to this extent the courts will be inclined, at least in some cases, to afford greater protection to personal information than to commercial information. As against that, however, the decided cases concerning personal information contain statements to the effect that a person who has placed or allowed to be placed in the public domain information concerning a certain aspect or “zone” of his private life may not be entitled to complain about the publication of other information concerning the same area—or, possibly, in an extreme case, any area—of his private life.78 There is faint echo of this approach in the decided cases concerning commercial confidences,79 where “within the law of confidentiality in its normal reach” the exceptions to protection of (among other things) public domain are specific to the material in question.80 To that extent, therefore, it appears that the courts may be prepared to afford less protection to personal information than to commercial information. However, in Campbell v MGN Ltd81 the Court of Appeal sounded a note of caution about the extent to which the courts will be prepared to adopt this approach to the ambit of the public domain exception in cases involving personal information:

“When Lord Woolf CJ spoke of the public having ‘an understandable and so a legitimate interest in being told’ information, even including trivial facts, about a public figure, he was not speaking of private facts which a fair-minded person would consider it offensive to disclose. That is clear from his subsequent commendation of the guidance on striking a balance between Article 8 and Article 10 rights provided by the Council of Europe Resolution 1165 of 1998. For our part we would observe that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media. We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.”82

(iii) The second element: the circumstances of acquisition

Where the person providing the information expressly states that it is being 78 Theakston v MGN Ltd [2002] EWHC 137; [2002] E.M.L.R. 398, para.68; A v B plc [2002]

EWCA Civ 337; [2003] Q.B. 195; [2002] 2 All E.R. 545, para.11(xii); A v B, C and D [2005] EWHC 1651; [2005] EMLR 851, paras. 16-23; Lennon v News Group Newspapers Ltd [1978] F.S.R. 573, 574–575.

79 But see Jockey Club v Buffham [2002] EWHC 1866; [2003] Q.B. 462 in which Gray J. said at para.57(v) with regard to certain press releases issued by the claimant that “The effect of placing such material in the public domain does in my view result in some loosening of the ties of confidence.”

80 Theakston v MGN Ltd [2002] EWHC 137; [2002] E.M.L.R. 398, paras 65–66. 81 [2002] EWCA Civ 1373; [2003] Q.B. 633; [2003] 1 All E.R. 224. 82 At paras 40–41. Echoed in the House of Lords (where the decision of the Court of Appeal was

reversed) by Baroness Hale of Richmond at [2004] 2 A.C. 457, para. 151: “It might be questioned why, if a role model has adopted a stance which all would agree is beneficial rather than detrimental to society, it is so important to reveal that she has feet of clay. But the possession and use of illegal drugs is a criminal offence and a matter of serious public concern. The press must be free to expose the truth and put the record straight.”

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provided in confidence, that will usually suffice to satisfy the second element.83 However, Lord Goff’s non-definitive formulation of the broad general principle makes clear that it is not essential that there should be a pre-existing relationship between the person seeking to enforce the duty and the person to whom the information was disclosed. In this regard, the statements of Laws J. in Hellewell v Chief Constable of Derbyshire84 and of Butler Sloss P. in Venables v News Group Newspapers Ltd85 were echoed in the arguments of the UK Government in Earl Spencer v United Kingdom86 and in the judgments of the Court of Appeal in Douglas v Hello! Ltd,87 and, at least so far as personal information is concerned, were endorsed by Lord Hoffmann in Wainwright v Home Office.88

83 As in Dunford & Elliott v Johnson & Firth Brown [1978] F.S.R. 143. 84 [1995] 1 W.L.R. 804; [1994] 4 All E.R. 473, where it was said:

“If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence.”

85 [2001] Fam. 430, [2001] 1 All E.R. 908, where it was held that the law of confidence could, exceptionally, extend to cover information as to the identity or whereabouts of individuals where its disclosure would put them at risk of serious injury or death. Butler Sloss P. said at para.81:

“The duty of confidence may arise in equity independently of a transaction or relationship between parties. In this case it would be a duty placed upon the media. A duty of confidence does already arise when confidential information comes to the knowledge of the media, in circumstances in which the media have notice of its confidentiality. An example is the medical reports of a private individual which are recognised as being confidential.”

86 [1998] 25 E.H.R.R. CD 105. 87 [2001] Q.B. 967. 88 [2004] 2 A.C. 406, at 422 paras 28–29, giving the leading speech with which the other members

of the House of Lords agreed: “The claimants placed particular reliance upon the judgment of Sedley L.J. in Douglas v Hello! Ltd [2001] Q.B. 967. Sedley L.J. drew attention to the way in which the development of the law of confidence had attenuated the need for a relationship of confidence between the recipient of the confidential information and the person from whom it was obtained—a development which enabled the UK Government to persuade the European Human Rights Commission in Earl Spencer v United Kingdom [1998] 25 E.H.R.R. CD 105 that English law of confidence provided an adequate remedy to restrain the publication of private information about the applicants’ marriage and medical condition and photographs taken with a telephoto lens. These developments showed that the basic value protected by the law in such cases was privacy. Sedley L.J. said, at p.1001, para.126: ‘What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.’ I read these remarks as suggesting that, in relation to the publication of personal information obtained by intrusion, the common law of breach of confidence has reached the point at which a confidence relationship has become unnecessary. As the underlying value protected is privacy, the action might as well be renamed invasion of privacy. ‘To say this’ said Sedley L.J., at p.1001, para.125, ‘is in my belief to say little, save by way of a label, that our courts have not said already over the years.’”

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In Campbell v MGN Ltd,89 Lord Nicholls said that “This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship”90 and Lord Hoffmann said that “[Lord Goff’s statement of principle], which omits the requirement of a prior confidential relationship, was accepted as representing current English law by the European Court of Human Rights in Earl Spencer v United Kingdom [1998] 25 EHRR CD 105 and was applied by the Court of Appeal in A v B plc [2003] QB 195, 207. It is now firmly established”.91 Lord Hoffmann later continued:

“In my opinion, therefore, the widespread publication of a photograph of someone which reveals him to be in a situation of humiliation or severe embarrassment, even if taken in a public place, may be an infringement of the privacy of his personal information. Likewise, the publication of a photograph taken by intrusion into a private place (for example, by a long distance lens) may in itself be such an infringement, even if there is nothing embarrassing about the picture itself: Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, 807. As Lord Mustill said in R v Broadcasting Standards Commission, Ex p British Broadcasting Corpn [2001] QB 885, 900: ‘An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate’ ”.92

In Douglas v Hello! Ltd (No 3)93 the Court of Appeal said of the decision in Campbell that: “What the House was agreed upon was that the knowledge, actual or imputed, that information is private will normally impose on anyone publishing that information the duty to justify what, in the absence of justification, will be a wrongful invasion of privacy”.94 The Court of Appeal went on to discuss the nature of “private information”, and stated that: “It seems to us that it must include information that is personal to the person who possesses it and that he does not intend shall be imparted to the general public. The nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfies these criteria”.95

(iv) The third element: detriment

The better view is that it is an open question whether detriment to the claimant is an essential ingredient of an action for breach of confidence.96 If detriment does need to be established, however, it may well constitute sufficient detriment

89 [2004] 2 A.C. 457 90 para. 14. 91 para.48. 92 para. 75. 93 [2005] EWCA Civ 595; [2005] Q.B. 125 94 para. 82 95 para. 83 96 Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 A.C. 109 at 281–282.

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to the confider that information is to be disclosed to persons whom he would prefer not to know of it.97

(v) Limiting principles

In Attorney-General v Guardian Newspapers (No.2) Ltd98 Lord Goff identified three limiting concepts to the broad general principle that he had stated. The first, that the principle of confidentiality does not apply to information that is generally accessible, has already been considered above. The second is that the duty of confidence does not apply to information that is useless or trivial. Although Lord Goff said that he did not need to develop this point, it has since assumed particular importance as a result of recent developments which have extended the law of confidence beyond its traditional boundaries and into the realms of intrusion into personal autonomy. The third limiting concept identified by Lord Goff is that in certain circumstances the public interest in maintaining confidence may be outweighed by the public interest in disclosure.

(vi) Useless or trivial information

Where the information for which a claim for confidence is made is of a commercial nature, the claim will be defeated if the information is, from an objective standpoint, trivial or useless. But in cases involving the misuse or disclosure of personal or private information a different approach is called for. In these cases, the first question which falls to be considered is: what constitutes part of an individual’s private life in the eyes of the law? Guidance was provided by the House of Lords in Campbell v MGN Ltd99. In that case, Lord Nicholls said: “Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy”.100 Lord Hope said: “There must be some interest of a private nature that the claimant wishes to protect: A v B plc [2003] QB 195, 206, paragraph 11(vii). In some cases, as the Court of Appeal said in that case, the answer to the question whether the information is public or private will be obvious. Where it is not, the broad test is whether disclosure of the information about the individual (“A”) would give substantial offence to A, assuming that A was placed in similar circumstances and was a person of ordinary sensibilities”.101 It follows from these formulations that what is capable of being protected as part of an individual’s private life may vary from case to case. In particular,

97 ibid. at 255–256. 98 [1990] 1 A.C. 109 at 282. 99 [2004] 2 A.C. 457 100 para. 22, p466. 101 para. 92, p482.

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whether or not use or disclosure of particular information infringes a person’s privacy cannot be tested by asking whether, considered in isolation, the information is trivial or useless. On the contrary, that will depend upon all the circumstances, including, for example, where the information which is said to be private falls to be considered together with other material that would otherwise be of a private character, whether such material has already entered the public domain, when that other material entered the public domain, the extent to which that other material has been publicised, and whether that other material has been publicised with the consent or involvement of the claimant; and, with regard to the information that is said to be private, the manner in which and the purposes for which it was obtained, how it was stored or processed, the purposes for which it was published, and the consequences of publication. It is suggested that this appears from a number of cases, and may be especially true of photographs. 102 In Peck v United Kingdom103 the European Court of Human Rights held, among other things, as follows. First, private life is a broad term not susceptible to exhaustive definition but includes the right to establish and develop relationships with other human beings, such that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of “private life”.104 Second, disclosure of material to the public in a manner which could never have been foreseen may give rise to such an interference.105 Third, where photographs are concerned, it is relevant to consider whether they relate to private or public matters and whether they were envisaged for limited

102 For the particular significance which may be attached to photographs taken without consent see

(in addition to the cases cited in the main body of the text): R. v Broadcasting Standards Commission, Ex p. BBC (Liberty intervening) [2001] Q.B. 885, [2000] 3 W.L.R. 1327, [2000] 3 All E.R. 989; R. v Loveridge [2001] EWCA Crim 973; Theakston v MGN Ltd [2002] EWHC 137, [2002] E.M.L.R. 398, paras 40–41; D v L [2004] E.M.L.R. 1, para. 23, per Waller LJ: “A court may restrain the publication of an improperly obtained photograph even if the taker is free to describe the information which the photographer provides or even if the information revealed by the photograph is in the public domain. It is no answer to the claim to restrain the publication of an improperly obtained photograph that the information portrayed by the photograph is already in the public domain”.

103 (Application No.44647/98) [2003] E.M.L.R. 15; (2003) 36 E.H.R.R. 41; 13 B.H.R.C. 669. Peck had been captured on closed circuit television when he had attempted suicide by cutting his wrists on a high street. Although the images used did not show the attempted suicide, they clearly identified Peck brandishing a kitchen knife in a public place. Although the police had attended the scene, Peck was not charged with any criminal offence. The images were used in a campaign to reflect the effectiveness of closed circuit television in combatting crime. No attempt was made to mask Peck’s identity. He subsequently appeared on a number of television broadcasts to discuss the publications of the footage and photographs, but nevertheless complained to the relevant media commissions about the disclosures. Peck tried unsuccessfully to obtain judicial review of the local authority’s disclosure. Before the European Court, Peck complained: (1) that the disclosure by a local authority of closed circuit television footage and photographs which had resulted in images of himself being published and broadcast on a local and national level was a breach of his right to respect for family and private life under Art.8; and (2) that it had been a breach of Art.13 in that no effective domestic remedy existed in relation to the violation of his Art.8 right.

104 para.57. 105 para.60.

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use or likely to be made available to the general public.106 Fourth, disclosure to an extent which far exceeds the exposure to the public at the time may constitute a serious interference with the right to respect for private life.107 In Campbell v MGN Ltd108the claimant conceded that, in order to set the record straight, the newspaper was entitled to publish information relating to her which would otherwise be classed as confidential. The issue was whether it was also entitled to publish, first, additional details relating to the therapy that the claimant had been undergoing for drug addiction, and, second, photographs taken in the street showing her leaving premises at which she had been attending a therapy session. The House of Lords was divided on this issue. The minority held that, in the words of Lord Nicholls, the additional information was not actionable because “Given the extent of the information, otherwise of a highly private character, which admittedly could properly be disclosed, the additional information was of such an unremarkable and consequential nature that to divide one from the other would be to apply altogether too fine a toothcomb”109 and the photographs were not actionable because “They showed nothing untoward. They conveyed no private information beyond that discussed in the article”.110 The leading majority speech was delivered by Lord Hope. He stated that, had it not been for the publication of the photographs, and having regard to the text alone, he would have been inclined to regard the balance between the claimant’s Art. 8 rights and the newspaper’s Art. 10 rights as “about even”.111 Lord Hope’s assessment of the photographs was therefore critical to his conclusion. With regard to the photographs, he reasoned, by reference to the judgments in Hosking v Runting112, that “The taking of photographs in a public street must … be taken to be one of the ordinary incidents of living in a free community. The real issue is whether publicising the content of the photographs would be offensive”. Lord Hope went on to say that there was a difference between a person who appears in a photograph only incidentally and a person who constitutes the true subject of the photograph and where the public nature of the place where the photograph is taken is simply used as background. He pointed out, by reference to PH and JH v United Kingdom113, that “[although] a person who walks down a public street will inevitably be visible to any member of the public who is also present and, in the same way, to a security guard viewing the scene through closed circuit television … [nevertheless] private life considerations may arise when any systematic or permanent record comes into

106 para.61. 107 para.62. 108 [2004] 2 A.C. 457 109 para. 26. 110 para. 31. 111 para. 121. 112 [2003] 2 N.Z.L.R. 385; [2004] N.Z.C.A. 34. 113 Reports of Judgments and Decisions 2001-ix, p195, para. 57.

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existence of such material from the public domain”. Applying these factors and the reasoning in Peck v United Kingdom114 to the facts in Campbell, Lord Hope concluded that the photographs in that case constituted a gross interference with the claimant’s right to respect for her private life because they were “not just pictures of a street scene”, but were taken “deliberately, in secret and with a view to their publication in conjunction with the article” and because any person of ordinary sensibilities in the claimant’s position who “had been photographed surreptitiously outside the place where she had been receiving therapy for drug addiction, would have known what they were and would have been distressed on seeing the photographs”.115 Baroness Hale and Lord Carswell agreed with Lord Hope, in particular that the photographs were both objectionable and actionable. Von Hannover v Germany116 involved a complaint by Princess Caroline of Monaco that her Art. 8 rights had been infringed by the publication in German magazines of photographs showing her in the following places: with a boyfriend in the courtyard of a restaurant; horse riding; out in public places either alone or with people such as her boyfriend, children and bodyguard, including doing activities such as shopping, bicycling, and leaving her house in Paris; on a skiing holiday; with Prince Ernst August von Hannover at a horse show; at the Monte Carlo Beach Club. The European Court of Human Rights upheld Princess Caroline’s complaint with regard to all of these photographs. The majority opinion stated (among other things) that: “a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of ‘watchdog’ in a democracy by contributing to ‘imparting information and ideas on matters of public interest’ it does not do so in the latter case”;117 “the context in which these photos were taken – without the applicant’s knowledge or consent – and the harassment endured by many public figures in their daily lives cannot be fully disregarded”;118 “The Court considers that anyone, even if they are known to the general public, must be able to enjoy a ‘legitimate expectation’ of protection of and respect for their private life”;119 and “… the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest”. 120

114 [2003] 36 EHRR 719 115 paras. 123-124. 116 [2005] E.M.L.R. 379; [2004] 40 E.H.R.R. 1. 117 para. 63. 118 para.68. 119 para.69. 120 para. 76.

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Douglas v Hello! Ltd (No 3) 121 concerned photographs which had been taken surreptitiously at the wedding of two film stars. Six of these photographs were published without the couple’s authority or consent in a magazine that was a competitor of the magazine to which the couple had sold the story and other, approved, photographs of the wedding. These six photographs showed the bride going down the aisle, the bride eating, the bride playfully holding up a cake knife at the groom, the bride dancing, and the bride and groom kissing. The Court of Appeal held that “Had the wedding taken place in England … only an affirmative answer could be given to the question of whether those acting for Hello! knew that the information depicted by the unauthorised photographs was fairly and reasonably to be regarded as confidential or private”122 and that the photographs “plainly portrayed aspects of the Douglases’ private life and fell within the protection of the law of confidentiality, as extended to cover private or personal information”.123 The Court of Appeal rejected the argument that, as a result of their agreement to sell the story and photographs of the wedding to a magazine, the couple were precluded from contending that their wedding was a private occasion and, as such, protected by the law of confidence. Indeed, the Court of Appeal said124 that, applying the reasoning of the decisions of the House of Lords in Campbell v MGN Ltd125and the European Court of Human Rights in Von Hannover v Germany,126 “the Douglases appeared to have a virtually unanswerable case for contending that publication of the unauthorised photographs would infringe their privacy”; and that, as there was no good reason for refusing an interim injunction (for example, on the basis that publication would be in the public interest), and as damages were not an adequate remedy for the Douglases, an injunction ought to have been granted to restrain publication. The Court of Appeal said with regard to photographs:

“It is quite wrong to suppose that a person who authorises publication of selected personal photographs taken on a private occasion, will not reasonably feel distress at the publication of unauthorised photographs taken on the same occasion. There is a further point. The objection to the publication of unauthorised photographs taken on a private occasion is not simply that the images that they disclose convey secret information, or impressions that are unflattering. It is that they disclose information that is private. The offence is caused because what the claimant could reasonably expect would remain private has been made public. The intrusion into the private domain is, of itself, objectionable. To the extent that an individual authorises photographs taken on a private occasion to be made public, the potential for distress at the publication of other, unauthorised, photographs, taken on the same occasion, will be reduced. This will be very relevant when considering the amount of any damages. The agreement that authorised

121 [2006] Q.B. 125 122 para. 94 123 para. 95. 124 paras. 251-259. 125 [2004] 2 A.C. 457 126 [2005] E.M.L.R. 379; [2004] 40 E.H.R.R. 1.

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photographs can be published will not, however, provide a defence to a claim, brought under the law of confidence, for the publication of unauthorised photographs … the Douglases retained a residual right of privacy, or confidentiality, in those details of their wedding which were not portrayed by those of the official photographs which they released … [The unauthorised photographs] invaded the area of privacy which the Douglases had chosen to retain.”127

(vii) Public interest defence: the principle

Public interest is available as a defence128 to claims for breach of confidence, and it is a general defence129 not limited to the refusal of equitable relief.130 The basic principles are that:

(1) the public interest in disclosure may outweigh the public interest that confidences should be protected and the right of the claimant to protect his confidences;

(2) where the balancing exercise comes down in favour of disclosure, it may favour only limited disclosure—either in the form of disclosure to less than the world at large or in the form of partial disclosure; and

(3) in the era of the Human Rights Act 1998, the Court, as a public authority, must take into account the right to freedom of expression conferred by Art.10 of the Convention, which has the practical effect that any relief which interferes with that right must be justified as being no more than is necessary in a democratic society for the legitimate aim

127 paras. 106-107, 136. 128 This is how the point is characterised in, for example, London Regional Transport v Mayor of

London [2003] EWCA Civ 1491; [2003] E.M.L.R. 4, by Robert Walker L.J. at para.35. There is a school of thought that the true analysis is not so much that the public interest affords a defence but rather that the public interest principle is of relatively narrow application and that, where it does apply, it has the effect that no obligation of confidence arises at all. See, for example, R.G. Toulson and C.M. Phipps, Confidentiality (Sweet & Maxwell, London, 1996), para.6–11: “the true principle is not …that the court will permit a breach of confidence wherever it considers that disclosure would serve the public interest more than non-disclosure, but rather that no obligation of confidence exists in contract or in equity, in so far as the subject matter concerns a serious risk of public harm …and the alleged obligation would prevent disclosure appropriate to prevent such harm.” This characterisation has usually been preferred by the Australian courts: Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 F.C.R. 434 at 451; 74 A.L.R. 428 at 445 et seq.; Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 F.C.R. 87 at 110, 95 A.L.R. 87 at 124.

129 Although most of the reported cases have been concerned with the grant or refusal of an interlocutory injunction, it is submitted that the policy reasons given in the judgments apply with equal force to final injunctions and to pecuniary remedies.

130 Indeed, it now seems clear that essentially the same defence is also available to a claim for infringement of copyright (which, unlike a claim for breach of confidence, is clearly a claim that is based on a property right), and that the existence and scope of the defence is informed and bolstered by free-speech considerations in view of the effective incorporation into English law of Art.10 by the Human Rights Act 1998: see Hyde Park Residence Ltd v Yelland [2001] Ch.143; Ashdown v Telegraph Ltd [2002] Ch.149.

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or aims pursued.131 In Attorney-General v Guardian Newspapers (No.2)132 Lord Goff of Chieveley summed the matter up as follows:

“The third limiting principle is of far greater importance. It is that, although the basis of the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure. Embraced within this limiting principle is, of course, the so called defence of iniquity. In origin, this principle was narrowly stated, on the basis that a man cannot be made ‘the confidant of a crime or a fraud’: see Gartside v Outram133 per Sir William Page Wood V.C. But it is now clear that the principle extends to matters of which disclosure is required in the public interest: see Beloff v Pressdram Ltd,134 per Ungoed-Thomas J, and Lion Laboratories Ltd v Evans135 per Griffiths L.J. It does not however follow that the public interest will in such cases require disclosure to the media, or to the public by the media. There are cases in which a more limited disclosure is all that is required: see Francome v Mirror Group Newspapers Ltd.136 A classic example of a case where limited disclosure is required is a case of alleged iniquity in the Security Service.”

In the context of giving guidance as to grant of interim injunctions, the Court of Appeal has said that in many situations the public have an understandable and so legitimate interest in being told the information, which can be taken into account by the Court in deciding on what side of the line a case falls; and that the Court must not ignore the fact that if newspapers do not publish information in which the public are interested, there will be fewer newspapers published which will not be in the public interest.137 This is not to equate the public 131 See Imutran v Uncaged Campaigns Ltd [2001] 2 All E.R. 385; [2001] E.M.L.R. 21, Sir Andrew

Morritt V.C., paras 20–21. 132 [1990] 1 A.C. 109 at 282. 133 (1857) 26 L.J. Ch 113 at 114. 134 [1973] 1 All E.R. 241 at 260. 135 [1985] Q.B. 526 at 550. In that case, claims for breach of confidence and infringement of

copyright were made in respect of documents taken by former employees which cast doubt on the accuracy of electronic breath testing equipment supplied by the claimant company to the police for the purpose of measuring the level of intoxication of motorists. Public interest was the only defence argued in the Court of Appeal, which held that the public interest may afford just cause or excuse for breaking confidence or infringing copyright, and that there was on the facts sufficient just cause and excuse so that no interim injunction should be granted restraining use or disclosure. All three judges held that the defence was not limited to cases of wrongdoing on the part of the claimant, that the disclosure of iniquity was merely an instance of the essential just cause or excuse, and that the test is whether there is legitimate ground for supposing that it is in the public interest for disclosure to be made. See, in particular, Stephenson L.J. at 538.

136 [1984] 1 W.L.R. 892. 137 See A v B plc [2003] Q.B. 195, para.11(xii). The Court of Appeal in Campbell v MGN Ltd [2003]

Q.B. 633 later explained (at para.40) that this was not intended to refer to private facts which a fair-minded person would consider it offensive to disclose and (at para.41) that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media.

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interest with what is of interest to the public (or the media), which would be wrong.138 However, it does underline that there is a public interest in freedom of expression itself;139 and, although there is also a public as well as a private interest in the maintenance of confidences, this may mean that, at least in some cases, the public interest defence to the cause of action for breach of confidence should be interpreted more liberally and treated as having more strength and breadth in the post-Human Rights Act 1998 era than it did in the past. The circumstances in which a public interest defence to a breach of confidence may enjoy success can conveniently be considered under three headings, which may, of course, overlap: first, the public interest in the disclosure of iniquity; secondly, the public interest in the public not being misled; and, thirdly, the public interest in the disclosure of matters of public concern.

(viii) Public interest in the disclosure of iniquity

Although the defence of public interest is not confined to cases involving wrongdoing, that is the paradigm instance in which it operates. The courts have always refused to uphold the right to confidence when to do so would cover up wrongdoing: in the words of Wood V.C. in Gartside v Outram140 there is “no confidence as to the disclosure of iniquity.” In addition, in the era of the Human Rights Act 1998, such a public interest consideration may be an exception under Art.8(2) to the Art.8(1) right to respect for private and family life. The reason that exposure of wrongdoing should not be prevented, even if it is in breach of confidence, is that “no private obligations can dispense with that universal one which lies on every member of society to discover every design which may be formed contrary to the laws of the society to destroy the public welfare.”141 An

138 See, e.g., Francome v Mirror Group Newspapers Ltd [1984] 1 W.L.R. 892, Sir John Donaldson

M.R. at 898: “The ‘media’, to use a term which comprises not only the newspapers, but also -television and radio, are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy and in campaigning for reform and propagating the view of minorities, they perform an invaluable function. However, they are peculiarly vulnerable to the error of confusing the public interest with their own interest. Usually these interests march hand in hand, but not always. In the instant case, pending a trial, it is impossible to see what public interest would be served by publishing the contents of the tapes which would not equally be served by giving them to the police or to the Jockey Club. Any wider publication could only serve the interests of the ‘Daily Mirror’.”

139 Reflected in the provisions of s.12 of the Human Rights Act 1998, and in the provisions of, for example, the Press Complaints Commission Code of Conduct, which is a privacy code within the meaning of s.12(4) and the provisions of which accordingly have to be taken into account thereunder. Cl. 3 of the PCC Code is asterisked to show that it is subject to the public interest exception contained in the Code, and that exception includes the statement that “There is a public interest in freedom of expression itself”.

140 (1857) 26 L.J. Ch (N.S.) 113 at 114. The case is reported in differing terms in three other sets of reports: (1856) 3 Jur. (N.S.) 39, 5 W.R. 35 and 28 L.T. (O.S.) 120.

141 Annersley v Anglesea (Earl) (1743) L.R. 5 Q.B. 317n; 17 State Tr. 1139, cited by Lord Denning M.R. in Initial Services v Putterill [1968] 1 Q.B. 396 at 405.

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allegation of wrongdoing will justify exposure in the public interest if it is a credible allegation from an apparently reliable source.142 A recent illustration of the operation of the principle at the interim stage is provided by Cream Holdings Ltd v Banerjee,143 in which the principal events related to tax evasion. The House of Lords, reversing the majority decision of the Court of Appeal, agreed with the dissenting judgment of Sedley L.J. that these events were clearly matters of serious public interest such that restraint by interim injunction was inappropriate. In that case, the source of the information was an employee, and one of the arguments upon which the claimant employer relied was that the situation was governed by, or least should be appraised by reference to, express statutory provisions which applied to disclosures by employees. In rejecting this argument, Lord Nicholls, giving the leading speech with which the other members of the House of Lords agreed, stated that:

“The graduated protection afforded to "whistleblowers" by sections 43A to 43L of the Employment Rights Act 1996, inserted by the Public Interest Disclosure Act 1998, section 1, does not militate against this appraisal. Authorities such as the Inland Revenue owe duties of confidentiality regarding the affairs of those with whom they are dealing. The "whistleblower" provisions were intended to give additional protection to employees, not to cut down the circumstances where the public interest may justify private information being published at large.”

(ix) Public interest in the public not being misled

There is also a public interest in the public not being misled. Typically, this principle comes into play if a public figure misleads the public, in which circumstances the media may well be entitled to put the record straight.144 The application of this principle to the facts of any particular case, and especially one involving the media, is, also, informed by free speech considerations. In Campbell v MGN Ltd,145 for example, the Court of Appeal applied the reasoning of the European Court of Human Rights in Fressoz and Roire v France146 in holding that:

“the information published by [the newspaper] was justified in order to provide a factual account of [the claimant’s] drug addiction that had the detail necessary to carry credibility. Provided that publication of particular confidential information is justifiable in the public interest, the journalist must be given reasonable latitude as to the manner in which that information is conveyed to the public or his Article 10 right to freedom of expression will be unnecessarily inhibited.”

142 Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 A.C. 109 at 283. 143 [2005] UKHL 44; [2006] 1 A.C. 253 144 See, for example, Woodward v Hutchins [1977] 1 W.L.R. 760. See also Theakston v MGN Ltd

[2002] EWHC 137; [2002] E.M.L.R. 22. 145 [2003] Q.B. 633. 146 (2001) 31 E.H.R.R. 2; 5 B.H.R.C. 654 at paras 63–64.

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This decision of the Court of Appeal was reversed by the House of Lords,147 which (by a 3-2 majority) restored the decision of the trial judge, Morland J,148 that the claimant had sustained an invasion of her right to respect for her private life by the newspaper’s publication of details relating to the therapy that she had been undergoing for drug addiction and of photographs taken in the street showing her leaving premises at which she had been attending a therapy session. In holding that the publication of this information was unjustifiable, their Lordships nevertheless recognised that the free press ought to be allowed some latitude as to the manner in which it wishes to present a legitimate story (in that case that the claimant had deceived the public): Lord Hoffmann said “one must assess the disclosures said to be objectionable in the light of the disclosures conceded to be legitimate. One must then ask whether the journalists exceeded the latitude which should be allowed to them in presenting their story”;149 Lord Hope said “A margin of appreciation must, of course, be given to the journalist. Weight must be given to this” and referred to “the margin of appreciation that must, in a doubtful case, be given to the journalist”; 150 and Lord Carswell spoke of “the degree of latitude which should be allowed to the press in the way in which it chooses to present its story”.151 Lord Hoffmann stated152 that this approach had the same basis as the decision of the House of Lords in Reynolds v Times Newspapers Ltd,153 namely that to require anything more of the media “would tend to inhibit the publication of facts which should in the public interest be made known”. The spirit of Reynolds was further endorsed and explained by the House of Lords in Jameel v Wall Street Journal Europe Sprl, 154 in which, in the context of considering the defence of qualified privilege to a claim in defamation relating to publication to the world at large, Lord Hope said: “The standard of responsible journalism respects the fact that it is the article as a whole that the journalist presents to the public. Weight will be given to the judgment of the editor in making the assessment, as it is the article as a whole that provides the context within which he performs his function as editor”.155

(x) Public interest in disclosure of matters of public concern

In Initial Services Ltd v Putterill,156 the Court of Appeal held, first, that the

147 Campbell v MGN Ltd [2004] 2 A.C. 457. 148 Whose decision can be found at [2002] EWHC 449; [2002] E.M.L.R. 30. 149 para. 68, and see, further, the discussion in paras. 61-70. 150 paras. 120-121. 151 para. 168. 152 para. 63. 153 [2001] 2 A.C. 127 154 [2006] UKHL 44 155 para. 108. 156 [1968] 1 Q.B. 396.

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exception allowing disclosure of information and documents obtained by an employee in the course of his employment extended to any disclosure that was justified in the public interest and operated with regard to a claim in damages; and, second, that disclosure to the press can fall within the principle. In Fraser v Evans157 Lord Denning M.R. said:

“There are some things which are of such public concern that the newspapers, the Press, and, indeed, everyone is entitled to make known the truth and to make fair comment on it. This is an integral part of the right of free speech and expression. It must not be whittled away”.

In London Regional Transport v Mayor of London158 the Court of Appeal held that there was a public interest in enabling the general public (and especially the travelling public in London) to be informed of serious criticism from a responsible source of the value for money evaluation of the proposed public-private partnership involvement in the London Underground; and that this outweighed the preservation of commercial confidentiality in an interim report prepared by a firm of accountants which was based on commercially sensitive and confidential information that had been disclosed by private-sector bidders subject to express confidentiality agreements. An injunction to restrain the publication of a redacted version of that report—which, although interim in form, would in practice have irreversible consequences—was, accordingly, refused. The Court accepted the concession that there is a need for proportionality in any restraint of freedom of expression if the restraint is to be justifiable under Art.10(2) of the Convention.159 Sedley L.J. suggested that the concept of proportionality that formed the basis for deciding a variety of Convention issues in accordance with the jurisprudence of the European Court of Human Rights enabled the elastic concept of whether a reasonable recipient’s conscience would be troubled to be replaced by a structured inquiry:

“Does the measure meet a recognised and pressing social need? Does it negate the primary right or restrict it more than is necessary? Are the reasons given for it logical? …for my part, I find it more helpful today to postulate a recipient who, being reasonable, runs through the proportionality checklist in order to anticipate what a court is likely to decide, and who adjusts his or her conscience and conduct accordingly”.160

In Jockey Club v Buffham,161 Gray J. held that questions of the integrity and fairness of bookmaking to the betting public; the relationship of bookmakers to trainers and racing stables; and the effectiveness of the Jockey Club’s regulatory role over the sport and industry of horseracing, were questions of proper and serious interest and concern to the public and, in particular, to the very many hundreds of thousands of people interested in horseracing, very many of whom

157 [1969] 1 Q.B. 349 at 363. 158 [2003] EWCA Civ 1491; [2003] E.M.L.R. 4. 159 Robert Walker L.J. at para.49. 160 Sedley L.J. at paras 57–58. 161 [2003] Q.B. 462.

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will place bets from time to time. Accordingly, he ruled that the BBC should be allowed to broadcast information relating to such matters notwithstanding that it had been obtained from a “whistleblower” who divulged it to the BBC in breach of express contractual obligations.162 Examples of cases where, at least at the interim stage, only limited disclosure was held to be justified in the public interest include Francome v Mirror Group Newspapers Ltd163 and Re a Company’s Application.164 In W v Edgell165 a consultant psychiatrist retained by the claimant to report on his state of mental health for the purposes of an application to a mental health review tribunal for his release from a secure hospital was so concerned about the difference between his views and those of the medical officer responsible for the claimant’s treatment that, after the proposed application had been withdrawn due to the adverse views expressed in his report, and without the consent of the claimant, he forwarded a copy of his report to the medical director of the hospital. The claimant was a paranoid schizophrenic who had shot and killed a number of people and wounded others, and who had been ordered to be detained in the secure hospital after he had pleaded guilty to manslaughter on the grounds of diminished responsibility. The central concern of the psychiatrist was of the danger that would be presented to the public if the claimant was released prematurely. Scott J. dismissed the claimant’s claim for breach of confidence, reasoning that it would plainly have been a breach of his duty of confidence for the psychiatrist to have sold the information to a newspaper, but that, applying the limiting principle identified by Lord Goff in Attorney-General v Guardian Newspapers (No.2)166 it was not a breach of duty for him to disclose it to the medical director of the hospital. On appeal, that decision was upheld by the Court of Appeal.

(xi) Infringement of privacy and false information

There is one further difference, or potential difference, between the traditional cause of action of breach of confidence and its extended version that should be 162 In reaching this decision, Gray J. had regard to what the Court of Appeal had said in Grobbelaar

v News Group Newspapers Ltd [2001] 2 All E.R. 437 at paras 47, 201 about the public interest in whether there was corruption in football, to what Morland J. had said in Chandler v Buffham [2002] EWHC 1426 on an earlier application for injunctive relief in relation to two of the documents with which the application before Gray J. was concerned, and to what had been said by Sir Thomas Bingham M.R. in R. v Disciplinary Committee of the Jockey Club, Ex p. Aga Khan [1993] 1 W.L.R. 909 at 912, 914.

163 [1984] 1 W.L.R. 892 (injunction restraining until trial the publication in the media of allegations of breaches of the rules of racing varied to allow the defendants to seek permission to make disclosure to the Jockey Club and to the police).

164 [1989] Ch.477 (no injunction granted until trial to prevent an employee who alleged that his employer was guilty of breaches of a regulatory scheme and improprieties in relation to tax from disclosing his employer’s confidential information to the regulatory body or the Inland Revenue).

165 [1990] 1 Ch. 359; [1990] 1 All E.R. 835. 166 [1990] 1 A.C. 109 at 282.

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noted. Traditionally, the law has drawn a clear distinction between the use or disclosure of true information on the one hand and the publication of false information on the other hand. The former can be the subject of a claim for breach of confidence, whereas (assuming it is injurious to the claimant’s reputation) the latter is properly the subject of a claim for defamation. This distinction may be of particular importance at the interim stage due to the rule in Bonnard v Perryman167 that, in an action for defamation, a court will not impose a prior restraint unless it is clear that no defence will succeed at trial. In Greene v Associated Newspapers Ltd,168 the Court of Appeal rejected the argument that the rule is inconsistent with the court’s obligation to act compatibly with Convention rights. Different considerations apply to claims for breach of confidence or misuse of private information, as they are governed by s.12 of the Human Rights Act 1998, and especially, at the interim stage, by s.12(3).169 In Lion Laboratories Ltd v Evans,170 Stephenson L.J. agreed with Sir David Cairns in Khashoggi v Smith171 that “there is a fundamental distinction between the two types of action”, and continued by pointing out that “To be allowed to publish confidential information, the defendants must do more than raise a plea of public interest; they must show ‘a legitimate ground for supposing it is in the public interest for it to be disclosed.’” In Interbrew SA v Financial Times Ltd,172 Sedley L.J. said “What is not in my view made out is the bigger and better cause of action in respect of the ‘lethal cocktail’ of fact and falsehood, since the element of falsehood can neither form part of the protected confidence nor stand on its own as a discrete tort”.173 In A v B plc,174 Lord Woolf C.J. said that “If the contents of the publication are untrue the law of defamation provides prohibition”.175 In Campbell v MGN Ltd,176 Lord Hope said that “there is a vital difference between inaccuracies that deprive the information of its intrusive 167 [1891] 2 Ch 269 168 [2004] EWCA Civ 1462; [2005] Q.B. 972; [2005] 3 W.L.R. 281; [2005] 1 All ER 30. The

Court of Appeal were prepared to accept, having regard to the decision of the European Court of Human Rights in Radio France v France App No 53984/00 of 30 March 2004, that the right to protection of reputation is an element of the right to respect for private life that is guaranteed by Article 8. However, they held that neither the criterion contained in section 12(3) of the Human Rights Act, nor the consideration that in accordance with section 6 of that Act it would be unlawful for the court as a public authority to act in a way which was incompatible with the claimant’s Article 8 rights, had any impact on the rule in Bonnard, or required the court to engage in any balancing of competing rights at the interim stage. Instead, they held that “it is at the trial of a defamation action that English law shows itself appropriately solicitous of the claimant’s right to a fair reputation” and that there was nothing in the European Convention on Human Rights that required the rule in Bonnard to be done away with.

169 Section 12 is discussed above. 170 [1985] Q.B. 526 at p.538. 171 (unreported), 15 January 1980; Court of Appeal (Civil Division) Transcript No. 58 of 1980,

at p15. 172 [2002] E.M.L.R. 446. 173 para. 28. 174 [2003] Q.B. 195. 175 para. 11(xiii). 176 [2004] A.C. 457

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qualities and inaccuracies that do not”.177 In McKennitt v Ash,178 Eady J. described as “somewhat simplistic” the proposition that “a reasonable expectation of protection, or a duty of confidence, cannot arise in relation to false allegations”, and continued as follows:

“As I observed in the case of Beckham v Gibson, 29 April 2005 (unreported), the protection of the law would be illusory if a claimant, in relation to a long and garbled story, was obliged to spell out which of the revelations are accepted as true, and which are said to be false or distorted: see also W v Westminster City Council [2005] EWHC 102 (QB), Tugendhat J.”

It is not entirely clear how far this line of reasoning extends or ought to extend. One difficulty is that, if it is permissible to bring a claim for breach of the law of confidence (as extended to private information) in respect of information that is entirely false (e.g. that the claimant has had an adulterous affair), and especially if the claimant is allowed to argue that he or she should not be required to state whether the information is true or false, that would or may enable the claimant to side-step the protection that the rule in Bonnard v Perryman179 seems to have been designed to provide for defendants. Another difficulty is that the argument may lead to slightly arbitrary results: for example, it may be said that an allegation of adultery is equally intrusive whether it is true or false; but can the same be said of an allegation that the claimant has written letters agreeing to participate in wrongdoing (such as tax evasion) where the claimant’s true stance is that the letters in question are forgeries and have nothing to do with the claimant? For present purposes, it is probably sufficient to note that disclosure of information of a private nature may be actionable as a breach of confidence even if that information contains inaccuracies, or, it may be, even if it is false.

(xii) Damages for infringement of privacy

In Campbell v MGN Ltd,180 Naomi Campbell was awarded £2,500 by way of basic compensatory damages and a further £1,000 by way of aggravated damages (in respect of a follow-up article that likened her to a “chocolate soldier”), and neither side sought to disturb the level of the basic award on appeal. In Douglas v Hello! Ltd (No 3) 181 the Douglases were awarded a total of £14,600 (including a “nominal award”182 on their claim under the Data Protection Act 1998), and, again, there was no appeal against the level of those awards in that case. In McKennitt v Ash,183 the personal claimant was awarded

177 para. 102. 178 [2006] E.M.L.R. 10, p178 179 [1891] 2 Ch 269. 180 [2004] A.C. 457. 181 [2006] Q.B. 125. 182 See [2003] E.M.L.R 31, per Lindsay J. at para. 239. 183 [2006] E.M.L.R. 10, p178.

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general damages of £5,000 and (because they had not suffered any hurt feelings or distress) the corporate claimants were said to be entitled to no more than a nominal award. As the award that was made to the Douglases was described by the Court of Appeal as “unassailable in principle” but “not at a level which, when measured against the effect of refusing them an interlocutory injunction, can fairly be described as adequate or satisfactory”,184 and as awards at this type of level are likely to be exceeded many times over by the shortfall between costs incurred by a successful party and the costs recoverable from the unsuccessful party (to say nothing of the costs implications for the claimant of losing the case entirely or in part), claims in this area seem likely to remain the preserve of wealthy claimants or those who can obtain funding on a conditional fee basis.

© RICHARD SPEARMAN QC 4-5, Gray’s Inn Square

6 November 2006

184 [2006] Q.B. 125 at para. 259.