Privacy and misuse of private information

The tort of misuse of private information protects informational autonomy through a two-stage test established in Campbell v MGN Ltd [2004] UKHL 22: (1) Does the claimant have a reasonable expectation of privacy? (2) If yes, does the defendant's Article 10 freedom of expression nevertheless justify publication? This represents a fundamental shift from the old equitable doctrine of breach of confidence, which required a pre-existing relationship or obligation. The modern tort, reshaped by the Human Rights Act 1998, vindicates privacy as an autonomous value rather than protecting confidential relationships. It balances competing Convention rights—Article 8 (private life) and Article 10 (expression)—through proportionality analysis, with neither right enjoying presumptive priority. The tort evolved through judicial interpretation of s 6 HRA (courts as public authorities must act compatibly with Convention rights), exemplifying indirect horizontality: while the HRA does not create direct causes of action between private parties, it reshapes existing equitable doctrines to comply with human rights obligations.

Campbell v MGN Ltd [2004] UKHL 22: Established the definitive two-stage test; therapy details and photographs of model at Narcotics Anonymous were private despite public location. The case marks the transformation from breach of confidence to a distinct privacy tort protecting informational autonomy.

Murray v Express Newspapers plc [2008] EWCA Civ 446: Set out factors for assessing reasonable expectation: claimant's attributes (children merit special protection), nature of activity, location, nature of intrusion, consent, effect, and circumstances of obtaining information. Even routine activities in public places can attract privacy protection for children.

Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB): Consensual adult sexual activity is paradigmatically private regardless of its unconventional nature. Moral disapproval does not constitute public interest; prurience is not the same as genuine public interest.

PJS v News Group Newspapers Ltd [2016] UKSC 26: Internet publication abroad does not automatically defeat an injunction if information hasn't become common knowledge domestically. Courts assess whether an injunction can still limit harm through mass-media amplification.

Von Hannover v Germany (2005) 40 EHRR 1: Public figures retain privacy for non-official activities. Publications serving only to satisfy curiosity without contributing to debate of general interest cannot justify intrusion under Article 10.

Courts first establish reasonable expectation objectively, considering the Murray factors. Medical information, therapy details, and sexual conduct attract strong protection. Children receive heightened protection even in public places. Photographs can violate privacy even if taken publicly, especially if covert or reinforcing private information.

At stage two, courts conduct parallel Article 8/10 analysis, examining: contribution to debate of general interest (political speech, crime exposure, significant hypocrisy); claimant's conduct (lying to public may reduce protection); content and consequences of publication (how intrusive, whether less harmful alternatives existed); journalistic responsibility. Public interest means genuine democratic accountability, not mere curiosity.

For injunctions, s 12(3) HRA requires showing likely success at trial (better than 50%), not just serious question (Cream Holdings). Post-publication remedies include compensatory damages for distress and loss of dignity, aggravated damages for egregious conduct, and exemplary damages under s 34 Crime and Courts Act 2013 where conduct shows deliberate disregard.

Conflating privacy with defamation: Truth defeats defamation but supports privacy claims—they protect different interests (reputation vs dignity). Analyse separately if both arise.

Skipping stage one: Always establish reasonable expectation before balancing rights. No expectation means no claim.

Misunderstanding public interest: 'What interests the public' (gossip) differs from genuine public interest (accountability, crime, safety). Celebrity status alone doesn't create public interest.

Ignoring s 12 HRA: For injunctions, apply the Cream Holdings test (likely success), not American Cyanamid. Reference s 12(4)'s requirement for particular regard to Article 10.

*Oversimplifying PJS***: The case doesn't mean internet publication defeats all injunctions—courts assess domestic knowledge and potential for mass-media amplification.