Privacy and misuse of private information

Misuse of private information is now the principal English civil wrong protecting informational privacy. It is usually taught in tort, although its ancestry lies in equity, breach of confidence, and the indirect influence of the European Convention on Human Rights through the Human Rights Act 1998. The action is not a general tort of invasion of privacy. It does not protect against every intrusion, embarrassment, or unwanted publicity. It asks, first, whether the claimant had a reasonable expectation of privacy in respect of the information; and secondly, if so, whether the claimant's Article 8 interest in respect for private life is outweighed by the defendant's Article 10 interest in freedom of expression.

The subject has a distinctive place in Part IA Tort. Much of the course so far has concerned physical damage, economic loss, land-use conflicts, and personal autonomy. Privacy sits at the edge of tort's map. It protects an interest which is dignitary and informational rather than proprietary or bodily. It is also unusually constitutional: the structure of liability is openly shaped by Convention rights, and the court must justify interferences with both privacy and speech. That makes the subject fertile for Tripos essays, because it raises questions about judicial law-making, horizontal effect, the legitimacy of incremental development, and the boundary between private law and public law.

The modern action was crystallised in Campbell v MGN Ltd. The House of Lords rejected the old language of confidentiality as the complete explanation of the cause of action. A person may have a privacy interest even where the information is not confidential in the traditional sense, and even where the defendant is not bound by a relationship of confidence. The claimant must identify information which, viewed objectively and contextually, attracts a reasonable expectation of privacy. Medical treatment, sexual life, family life, children, intimate communications, and pre-charge criminal investigations are recurrent categories, but the inquiry is not closed.

The decisive point is that liability is not established merely by showing that the information is private. Article 10 is not a defence bolted onto Article 8; the two are balanced. A newspaper may publish private information if publication contributes sufficiently to a debate of general public interest. Conversely, curiosity, titillation, commercial exploitation, or punishment by exposure will rarely justify publication. The more intimate the information, the stronger the justification required. Photographs are often more intrusive than verbal descriptions because they appropriate a moment and intensify exposure.

For Cambridge purposes, avoid treating the topic as a list of celebrity cases. The best answers explain why this action developed from breach of confidence, how the two-stage test operates, why public interest differs from what interests the public, and how remedies, especially interim injunctions, affect the practical balance. A strong Part IA answer should also notice the tension between privacy as an individual right and the open justice, press freedom, and democratic accountability values that limit it.

English law was traditionally reluctant to recognise a freestanding right to privacy. The standard historical contrast is with the American development following Warren and Brandeis's 1890 Harvard Law Review article. English courts instead protected privacy indirectly, by deploying older causes of action: trespass, nuisance, defamation, passing off, copyright, breach of confidence, and, in some cases, harassment. These actions protected particular incidents of privacy, but they did not articulate privacy as an independent legal interest.

The older law of breach of confidence was founded on conscience. The defendant was restrained from using information received in circumstances importing an obligation of confidence. This was well adapted to trade secrets, employment relationships, personal letters, and relationships of trust. It was less well adapted to modern media intrusion, where the wrongdoer might be a photographer, tabloid newspaper, or third party who had not assumed any obligation of confidence. The question was therefore whether the law could protect private information simply because it was private, not because it had been confidentially imparted.

Kaye v Robertson exposed the gap. Gordon Kaye, a well-known actor, was photographed and interviewed in hospital after a serious accident. The Court of Appeal expressed sympathy, but found no general right of privacy and had to rely on a limited malicious falsehood injunction. The case became the orthodox pre-HRA example of English law's inadequacy. It is still useful in exams: it shows why privacy could not be squeezed comfortably into defamation, trespass, or confidence without doctrinal distortion.

The Human Rights Act 1998 altered the landscape without creating a statutory privacy tort. Courts, as public authorities, must act compatibly with Convention rights. Article 8 protects respect for private and family life, home and correspondence. Article 10 protects freedom of expression. The Act therefore required courts, when developing common law doctrines, to take both rights seriously. This produced what is often called indirect horizontal effect: Convention rights do not usually create a direct claim between private persons, but they influence the development and application of private law.

Wainwright v Home Office is an important restraint on overstatement. Strip-searches of prison visitors were carried out in an intrusive and unauthorised manner. The House of Lords refused to recognise a general common law tort of invasion of privacy. That refusal remains significant. English law has not adopted a single, all-purpose privacy tort. The later cause of action is narrower: misuse of private information.

Campbell then supplied the turning point. Naomi Campbell accepted that she had previously made public false statements that she did not take drugs. The Mirror published that she was receiving treatment from Narcotics Anonymous, together with details and photographs. The House of Lords held by majority that publication of the fact of treatment could be justified because it corrected a public falsehood, but the additional details and photographs went too far. The case separated the public interest in contradiction from the unjustified exposure of therapeutic details.

After Campbell, the doctrine developed rapidly. Douglas v Hello! showed the commercial and dignitary dimensions of controlled publicity. Murray recognised that a child of a public figure may have a reasonable expectation of privacy in street photographs. Mosley emphasised sexual privacy and the lack of public interest in moralistic exposure. PJS demonstrated that privacy may survive even when information is circulating abroad or online. Bloomberg v ZXC confirmed that, as a legitimate starting point, a person under criminal investigation before charge has a reasonable expectation of privacy. The history is therefore one of cautious common law adaptation: no general privacy tort, but a robust action for misuse of private information.

The modern action has two stages. Stage one asks whether the claimant had a reasonable expectation of privacy in relation to the information. Stage two asks whether, if such an expectation exists, publication or other use is nevertheless justified after balancing the claimant's Article 8 rights against the defendant's Article 10 rights. This structure is simple; its application is fact-sensitive.

1. The protected interest is informational privacy. The action concerns the obtaining, retention, publication, or threatened publication of information. It is not confined to secrets, nor to information supplied in confidence. Nor is it concerned only with reputational harm. Defamation protects reputation against false or defamatory imputations. Misuse of private information may protect true information precisely because truth can be invasive. This distinction is central after Week 14. A claimant may be defamed by an untrue allegation; the same claimant may have privacy invaded by a true disclosure of medical, sexual, familial, or investigative facts.

1. The first stage is objective and contextual. The question is not simply whether the claimant subjectively wished the information to remain private. The court asks whether a reasonable person of ordinary sensibilities, placed in the claimant's position, would have a reasonable expectation of privacy. Relevant factors include the claimant's attributes, the nature of the activity, the place where it occurred, the absence or presence of consent, the purpose and circumstances of obtaining the information, the effect of publication, and whether the information was already in the public domain. In Murray, the Court of Appeal emphasised the breadth of this assessment.

1. Certain categories commonly attract privacy. Medical information is strongly protected, as Campbell illustrates. Sexual activity is usually private, as in Mosley and PJS. Family life, especially involving children, is protected even where parents are public figures. Private communications are protected, though the precise legal route may overlap with confidence and data protection. Pre-charge criminal investigation information receives a legitimate starting point of privacy after Bloomberg v ZXC. The categories are not closed, but they indicate judicial assumptions about intimacy, vulnerability, and autonomy.

The landmark cases show both expansion and restraint. Wainwright is the necessary starting point because it rejects a general privacy tort. The House of Lords accepted that the strip-searches were humiliating and unauthorised, but refused to manufacture a broad cause of action. This matters because later cases must be read as developing a specific wrong, not as secretly importing a general American-style privacy tort.

Campbell is the canonical modern authority. Its facts are sometimes remembered too crudely as celebrity drug treatment. The real significance is the separation between legitimate correction and excessive exposure. Because Campbell had publicly denied drug use, the newspaper could publish enough to set the record straight. But the details of therapy and the photographs outside Narcotics Anonymous were qualitatively different. They intruded into medical treatment and vulnerability. Campbell also changed the doctrinal vocabulary: breach of confidence became inadequate as the full explanation of the new privacy action.

Re S, though not a celebrity privacy case, provides the balancing method. It concerned reporting restrictions where a child would be affected by criminal proceedings involving his mother. Lord Steyn's four propositions have become the standard approach to Article 8 and Article 10 conflicts: neither right has precedence, the court must focus on the specific competing rights, the justifications for restricting each must be considered, and proportionality must be applied. This is the spine of the second stage.

Douglas v Hello! is important because it involved the commercial control of wedding photographs. Michael Douglas and Catherine Zeta-Jones had sold exclusive rights to OK! magazine. Hello! published unauthorised photographs. The Court of Appeal recognised that the claim protected privacy and commercial confidentiality. The case is doctrinally untidy but instructive: information may have both dignitary and commercial value, and the fact that a claimant intends selective publicity does not necessarily abandon all privacy.

Murray corrected an overly narrow approach to public-place photography. A child photographed in a street was not automatically outside privacy protection. The court looked to context: the claimant's age, parental attitudes, the circumstances of photography, and the effect of publication. The case is especially useful in problem questions involving children, paparazzi, and celebrity parents.

Mosley is the leading first instance judgment on sexual privacy and public interest. The defendant alleged Nazi-themed sexual conduct. Eady J found no Nazi element and no sufficient public interest. The judgment strongly rejects moralistic exposure as justification. It also shows the limitations of damages after publication: Mosley received substantial damages, but the information had already been disseminated.

PJS demonstrates that privacy is not necessarily defeated by foreign publication or internet availability. The Supreme Court maintained an injunction notwithstanding overseas reporting and online circulation. The case highlights the difference between confidentiality and privacy: information may no longer be secret in an absolute sense, yet further publication by a major English newspaper may still deepen the intrusion.

Bloomberg v ZXC is the major recent Supreme Court authority. It confirms that, generally, a person under criminal investigation before charge has a reasonable expectation of privacy in information relating to that investigation. This protects reputation, dignity, and the presumption of innocence before the state has decided to charge. The judgment also shows that privacy is not limited to intimate or sexual facts; legal status and investigative suspicion may be deeply private.

See practice questions section below.

See further reading section below.