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33 Cards in this Set
- Front
- Back
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Privacy |
It is one of the more developed areas of tort law, but is something the common law traditionally didn't concern itself with, not only in tort but also in various other areas. The court didn't usually care about your privacy and neither did the state. Privacy was developed post-HRA in 1998. |
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Why protect privacy? |
Warren and Brandeis - because of the mental distress caused by invasion of privacy; technological issues and because dealing with mere trivial information about people damages the political sensibilities of people. Privacy is now a recognised human right as it's in pretty much every HR instrument but it is almost always a qualified right. There is potentially a dignity argument as some information published could damage dignity. Individuals also may want to protect their reputation, but this does not mean that if information could benefit someone's reputation it is not a breach of their privacy. |
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Competing Interests |
- reputation - freedom of expression - public interest - national security - vulnerability (e.g. rights of children issues) |
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The Classic UK Position |
Traditionally there has been no protection in relation to privacy so long as the information is true. Kaye v Robertson [1991] - Kaye was in a rather bad car accident and was in intensive care. A reporter came into hospital, took photos of him and suggested they had had an exclusive interview and published it. His representatives failed to prevent the publication on defamation (it was true), classic breach of confidence (no obligation of confidence) and a tort of invasion of privacy (CA rejects that such a tort exists. LJ Glidewell said that situations like this are why we need a statutory act to protect the privacy of individuals but Parliament did not respond to that. |
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Classic Breach of Confidence |
It is a tort but is basically about commercial information where A imparts it to B in circumstances which impose an obligation of confidence and then B discloses it to someone else.
It has applied to non-commercial information in Prince Albert v Strange (1849).
The remedy is injunction and/or damages.
Confidence is not well suited to protecting privacy as you need an obligation of confidence and there is not usually one of those in general life. |
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The Change - HRA s6 and ECHR Art 8 |
- Art 8: right to respect for private and family life, home and correspondence - s6 HRA: "it is unlawful for a public authority to act in a way which is incompatible with a Convention right" - public authority includes courts. |
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The Change...cont - Von Hannover (No 1) |
The court made a number of statements about privacy: - it is important to distinguish between information about public officials doing their public duty and the private life of private individuals - you have to at least have some private space even if you are a well-known celebrity - in particular photographs should be protected as they are greater invasions of privacy than just articles - the test is whether a person has a "legitimate expectation" of being safe from the media In this case the articles about Princess Caroline with the photos included were a breach of her Article 8 right. |
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The Change...cont - Von Hannover (No 2) |
This case said that if there is a greater public interest in the article, the more the right to privacy of the individual has to yield. Your right to privacy is a qualified right and has to be balanced against freedom of expression and public interest. |
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What is the public interest? What matters should we take into account when determining if something is in the public interest? (from Von Hannover (No 2)): |
- the personal lives of politicians - to be in the public interest it must have some regard to their fitness to do their public function. More likely to have public interest if it is questioning their integrity of accusing them of hypocrisy - gossip: probably not in the public interest - allegations of corruption/financial mismanagement - sporting misdemeanors e.g. drugs cheating: it was probably in the public interest to out Lance Armstrong - criminal activity
Public interest is moveable, it depends on an analysis of the situation each time, however, the more serious an allegation, the more likely it is to be in the public interest. |
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Post-HRA Developments - Campbell v MGN: |
She was photographed leaving Narcotics Anonymous and the HOL said the publication was tortious by 3-2. The test is: - was the disclosure offensive to the reasonable person in the position of C? If it was, then - was the disclosure in the public interest taking into account all circumstances - content of article, way it was presented, way the allegations arise etc. |
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Campbell v MGN cont |
The key thing for the HOL was that the photograph of her coming out of NA meant that if you knew the area you could identify where the meeting was - the publication of the photograph was one of the most important things in determining if it was in the public interest.
Baroness Hale especially felt that it was the photographwhich made this a breach of Ms Campbell’s privacy as “a picture is ‘worth athousand words’ because it adds to the impact of what the words convey”.
Simply reporting her hypocrisy that she had been denying her drug addiction was in the public interest but she won the case because the whole coverage was not in the public interest. |
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Two developments recognised in Campbell |
- the removal of the need for the confidential relationship - the acceptance, under the influence of the HRA, that the privacy of personal information is something worth protecting |
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Misuse of Private Information |
Types of information that can be protected: - Details of private and family life including sexual preferences: Mosley - Medical conditions and accompanying treatment: Campbell - Likeness of children: Murray
What information cannot be protected: - Information already in the public domain: one reason why James Rhodes managed to win his case against his son who was trying to stop him publishing his memoirs. - Information that is already in the public interest to disclose - R (W) v Secretary of State for Health: can’t identify the individual from the information so you are able to disclose it |
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McKennitt v Ash |
Even though the information in the book that her friend proposed to public would be somewhat interesting to people, that did not mean that it was in the public interest - she had a right to privacy and the fact that she was in the public eye didn't override that.
Buxton LJ said the first question is whether the information is private, the second is does the interest in publication outweigh the interest in privacy?
Buxton LJ claims that the convention has been “absorbed” into the action for breach of confidence. However as the ECHR does not have direct effect it is normally treated as “informing” the equitable principles where the obligation is found, as said in Campbell. |
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Mosley v NGN |
Information about a sadomasochistic orgy involving Mosley (with potential Nazi themes) was published by the NOTW. Eady J concludes that it may have been in the public interest to disclose but if you can't show it questions the individual's ability to do their job it is not in the public interest, it is merely interesting to the public so Mosley won his case. |
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Ferdinand [2011] |
It was in the public interest to disclose an affair as it may be that fidelity is relevant in determining if someone is suitable to be England Football captain, particularly given that it had been deemed relevant to the role when the last captain had been unfaithful.
It had a bearing on his suitability and therefore the allegations were in the public interest and did not disproportionately intrude on private life. |
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A US Comparison |
Warren and Brandeis influenced judges to create torts that protected privacy – their article is probably the most influential law review article ever. It began to be picked up by judges in state courts and the tort is created.
By 1960 when Prosser examines privacy law in the US he finds over 300 cases that have found that there is a tort of infringement of privacy and he breaks these down into four different types: - Public Disclosure of Private Facts (basically misuse of private information) - Intrusion on Seclusion (exists in circumstances where you invade someone’s privacy but don’t necessarily publish the information) - False Light (on the boundary between privacy and defamation – saying something about somebody that makes them look worse than they are) - Appropriation of Likeness (using someone’s likeness to further your commercial ends)
Criticism is that by creating these four categories he limits what a tort of infringement of privacy can do. So the American law kind of got stuck at these four categories and that’s not what Warren and Brandeis proposed. Also argued that Prosser shoehorned some cases into these categories thus reducing the scope of privacy law. |
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Intrusion on Seclusion |
Lake v Wal-Mart - intrusion on seclusion even without publication is a tort. This was the case about the film photos that were developed by Wal-Mart and people had seen one which was a naked photo.
It is a tort to intentionally and without authorisation intrude on the privacy of another where such intrusion would be highly offensive to the reasonable person, the matter intruded on was private and reasonably expected to be so and the intrusion caused anguish and suffering. |
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The 1st Amendment Dimension (1) |
Since Prosser wrote his article, the 1st Amendment has become more important as it is intended to prevent limits on the freedom of speech and the press - "Congress shall make no law...abridging the freedom of speech, or of the press". |
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1st Amendment Dimension (2)...Gitlow v New York (1925) |
If a state makes a law that infringes the freedom of speech that can be a breach of the 1st Amendment. If it's statute it gets struck down, if it's a common law tort then the tort bows out as you can't have common law infringing the Bill of Rights. This is a movement towards a 1st Amendment law that may prevent privacy torts that infringe freedom of speech. |
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1st Amendment Dimension (3)...Time v Hill |
This was a false light claim about a story published in Time Magazine about a family who were kidnapped. The SC said you can't have a tort (a false light tort at least) in cases where it's been published merely negligently - you've got to show that they knew or should have known that the things they were writing are an infringement of privacy rather than simply showing that they’ve done it without a false element. It requires actual malice. |
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1st Amendment Dimension (4)...Florida Star v BJF (1989) |
Florida Star published information about a rape victim’s identity, so she brought a claim against them for public disclosure of private facts.
SC says it was a breach of the 1st Amendment and an unjustified infringement on the freedom of speech to grant her damages – this damages the ability of the state courts to award damages for breach of privacy. |
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1st Amendment Dimension (5) |
Privacy is not a constitutional right in the US. It has been found in some cases but only where there was no expression element.
Gormley: "state privacy tort actions have been effectively squashed in nearly every instance when they have come into conflict with the constitutional guarantee of a free press" (except false light cases - see Lake v Walmart).
There is an argument that the 1st Amendment doesn't apply to all forms of disclosure of private information, especially the more extreme ones. There are limits to the 1st Amendment.
So in the UK we've gone towards more protection whereas the US now have less protection than they did pre-1960.
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A New-Zealand Comparison |
There is a distinct privacy tort in NZ, developed by the courts, in relation to both disclosure of facts and intrusion on seclusion but there is an overarching broad privacy tort. Hosking v Runting [2005] - claimant conceded thata confidence based tort doesn’t exist and the court did not accept Campbell. The majority of the court madethe decision that a freestanding tort of privacy exists in NZ – reasonableexpectation of privacy and that it would be highly offensive to an objectivereasonable person. There is a defence of legitimate public interest and theburden of proof is on the defendant to prove public interest. |
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Post-Hosking |
TVNZ v Rogers [2008] - Anderson J says he doesn't think the tort exists. Elias CJ suggests that the Hosking test is too narrow: it shouldn't be highly offensive, should only be merely offensive.
Andrews v TVNZ [2009] - no breach when a TV show showed a serious accident involving Mr and Mrs Andrews as there was a reasonable expectation of privacy but it wouldn't be highly offensive to a reasonable person so the publication is not a breach. One argument was that it should be better controlled by the TV Regulator. |
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Intrusion on Seclusion |
C v Holland - he put a webcam in the bathroom and stored the videos on his laptop for his own private enjoyment. C suffered pretty severe psychiatric harm as a result of this violation of her privacy so she brings a claim in tort. Thisis not obviously a tort but the court looked at intrusion on seclusion andfound a need for the protection of privacy and said NZ courts have the abilityto expand the scope of the privacy tort and therefore Holland is liable. |
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Intrusion on Seclusion (2) |
What are the boundaries of an inclusion on seclusion tort? Clearly if it's merely negligent it's not a tort? There is better evidence that it's a tort if it's repeated but there can be circumstances where it is serious enough as a one-off that it can constitute a tort.
If you fully appreciate that someone's seclusion is intruded on then it is more likely to be a tort. |
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Back to the UK |
Fenty v Arcadia [2013] - Topshop put a photo of Rihanna on a t-shirt without her permission and the High Court held it was problematic and a kind of appropriation of likeness. Lord Byron v Johnston (1816) - J published a book claiming to be lost poems of Lord Byron but they were actually drafts and so LB claimed it was a false light and they should not have been published. |
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Privacy Remedies in Tort |
The remedies in general have been damages. There are some difficulties with this such as calculating what your harm is worth and secondly damages arguably don’t go very far to resolving any of the harm – they can’t undo what has happened.
To quantify the harm you could look at the effect on your reputation as you would in defamation and calculate it that way. Difficulty with that is you don’t get anything where the disclosure of private information is beneficial to your reputation e.g. you make big donations to charity.
Alternatively you could think about how much you could have sold this information for. The third way is to claw back profits so if a newspaper makes extra profits because they publish a private story about you then you could grab that money back.
Only 8 cases have ever reached the point of damages under misuse of private information as the parties usually settle once liability is found. |
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Privacy Remedies in Tort (2) |
To prevent things from being published you need an injunction, usually pre-publication but to obtain one you need to know that the story is coming and in some cases you do not.
Mosley v UK – Mosley went to Strasbourg and argued that there should be a duty to notify individuals before publishing a story about them, but he lost as they said it was not a part of Article 8 and in fact seemed to infringe Article 10. |
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Privacy Remedies in Tort (3) |
If there was a duty to inform, how would it work in practice? What if a newspaper failed to comply with it, what would/should happen? You could give additional damages to the individual; could get the newspaper to recall the papers/take the story off the website etc.; could get them to print a retraction; criminalise it (but that would be a massive infringement on freedom of speech).
But there is a problem with how this works in practice – it is okay with celebrities but if it’s just a normal person, how does the newspaper get in touch with them? |
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Is a common law tort the answer? |
There has been a rethinking in the area of revenge porn as that is now a criminal offence. Do we get rid of misuse of private information?
Complaint by Mrs D – she is on a channel 4 program about a struggling hotel in a British seaside town and she is seen attending a ladies night with strippers and she is in the front row having the time of her life. They show her face unobscured and so when the program is aired all her friends and family see it and she says it is unwarranted attention. |
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Is a common law tort the answer (2)? |
Complaint by Neil Jordan – complained that a member of the crowd racially abused a footballer. The football fan is sent to prison and the TV companies film outside the court and film him leaving. Court said there is no reasonable expectation of privacy.
Yates v Mail Online – most of the information had already been placed in the public domain through the court proceedings however the article included intimate details which had not been included in the decision. The publication of this information was not justified and the public interest was not proportionate to the level of intrusion posed by the publication of intimate details. |
