(p. 346) 14. Invasion of privacy
The protection of privacy has long been a problem for the common law but no general ‘privacy’ tort has yet been developed, partly because it has not been possible to agree a definition of the interests which deserve to be protected and partly because of the need to protect the conflicting right to freedom of speech (see Wainwright v Home Office  UKHL 53). This chapter details how privacy interests have begun to be protected by tort law. The second section shows that a common law right to protection from invasion of privacy has emerged in recent years, existing mainly in relation to the protection of personal information (including photographs) and a ‘reasonable expectation of privacy’ in specific situations. The development of the law in this area shows the potential power of the Human Rights Act (HRA) 1998 and the European Convention on Human Rights (ECHR) in influencing private law. It has also been the subject of considerable controversy, especially in relation to the protection of celebrity privacy.
14.1 Privacy and common law
As was clear from Kaye v Robertson  FSR 62, there is no general tort to protect privacy. There are really two kinds of privacy problem: the first relates to invasion of the claimant’s space either physically or mentally (the classic right to be left alone) and the other is the dissemination of information about the claimant that they would rather keep to themselves. The latter is an abuse of position by the defendant for which protection in tort is now derived from the equitable action for breach of confidence (stemming from Campbell v MGN  UKHL 22). The courts have long been resolute in the idea that no common law action for protection of privacy can be developed, and the Calcutt Committee on Privacy recommended against a statutory tort relating to privacy in 1990. However, it is now clear that, alongside or in tandem with equity, the HRA provides a right against the state for failing to protect citizens against privacy invasions under the terms (and limitations) of Article 8 ECHR (Von Hannover v Germany (Application no 59320/00) (2005) 40 EHRR 1), and also has led to the development of ‘horizontal’ claims against private individuals or organisations, as acknowledged in Campbell v MGN and subsequent cases, described as a privacy tort ‘in all but name’. In Google Inc v Vidal-Hall and others  EWCA Civ 311 the Court of Appeal confirmed the existence of a ‘tort of misuse of private information’ based on the principles from Campbell.
The facts are stated in section 13.3.
15. My Lords, let us first consider the proposed tort of invasion of privacy. Since the famous article by Warren and Brandeis (The Right to Privacy (1890) 4 Harvard LR 193) the question of whether such a tort exists, or should exist, has been much debated in common law jurisdictions. Warren and Brandeis suggested that one could generalise certain cases on defamation, breach of copyright in unpublished letters, trade secrets and breach of confidence as all based upon the protection of a common value which they called privacy or, following Judge Cooley (Cooley on Torts, 2nd ed (1888), p 29) the right to be let alone. They said that identifying this common element should enable the courts to declare the existence of a general principle which protected a person’s appearance, sayings, acts and personal relations from being exposed in public.
16. Courts in the United States were receptive to this proposal and a jurisprudence of privacy began to develop. It became apparent, however, that the developments could not be contained within a single principle; not, at any rate, one with greater explanatory power than the proposition that it was based upon the protection of a value which could be described as privacy. Dean Prosser, in his work on The Law of Torts, 4th ed (1971), p 804, said that:
What has emerged is no very simple matter … it is not one tort, but a complex of four. To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ‘to be let alone’.
17. Dean Prosser’s taxonomy divided the subject into (1) intrusion upon the plaintiff’s physical solitude or seclusion (including unlawful searches, telephone tapping, long-distance photography and telephone harassment) (2) public disclosure of private facts and (3) publicity putting the plaintiff in a false light and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness. These, he said, at p 814, had different elements and were subject to different defences.
18. The need in the United States to break down the concept of ‘invasion of privacy’ into a number of loosely-linked torts must cast doubt upon the value of any high-level generalisation which can perform a useful function in enabling one to deduce the rule to be applied in a concrete case. English law has so far been unwilling, perhaps unable, to formulate any such high-level principle. There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. Sir Brian Neill’s well known article ‘Privacy: a challenge for the next century’ in Protecting Privacy (ed B Markesinis, 1999) contains a survey. Common law torts include trespass, nuisance, defamation and malicious falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act 1997 and the Data Protection Act 1998. There are also extra-legal remedies under Codes of Practice applicable to broadcasters and newspapers. But there are gaps; cases in which the courts have considered that an invasion of privacy deserves a remedy which the existing law does not offer. Sometimes the perceived gap can be filled by judicious development of an existing principle. The law of breach of confidence has in recent years undergone such a process: see in particular the judgment of Lord Phillips of Worth Matravers MR in Campbell v MGN Ltd  QB 633. On the other hand, an attempt to create a tort of telephone harassment by a radical change in the basis of the action for private (p. 348) nuisance in Khorasandjian v Bush  QB 727 was held by the House of Lords in Hunter v Canary Wharf Ltd  AC 655 to be a step too far. The gap was filled by the 1997 Act.
19. What the courts have so far refused to do is to formulate a general principle of ‘invasion of privacy’ (I use the quotation marks to signify doubt about what in such a context the expression would mean) from which the conditions of liability in the particular case can be deduced. …
23. The absence of any general cause of action for invasion of privacy was again acknowledged by the Court of Appeal in Kaye v Robertson  FSR 62, in which a newspaper reporter and photographer invaded the plaintiff’s hospital bedroom, purported to interview him and took photographs. The law of trespass provided no remedy because the plaintiff was not owner or occupier of the room and his body had not been touched. Publication of the interview was restrained by interlocutory injunction on the ground that it was arguably a malicious falsehood to represent that the plaintiff had consented to it. But no other remedy was available. At the time of the judgment (16 March 1990) a Committee under the chairmanship of Sir David Calcutt QC was considering whether individual privacy required statutory protection against intrusion by the press. Glidewell LJ said, at p 66:
1. Lord Hoffmann comprehensively rejected a general right of privacy at common law. While there has been considerable sympathy for such a right, problems of definition and the balance of privacy against freedom of expression have in the past suggested that judicial development of such a tort was not appropriate. Neither has statutory protection been forthcoming—in 1990 the Calcutt Committee on Privacy (Cm 1102) recommended against any statutory tort of infringement of privacy, preferring to rely on a system of self-regulation.
2. The HRA 1998 was not in force at the time of the events in Wainwright, but if it had been the claimants would have been able to sue as they suffered at the hands of a public authority. In Wainwright v UK (Application no 12350/04) (2007) 44 EHRR 809, the European Court of Human Rights declared that there were breaches of the ECHR. Although the Court ordered damages of €3,000 for each applicant, the grounds of the decision are quite limited. In considering Article 8 ECHR (respect for family and private life) the Court said in relation to the strip-searches that such a highly invasive and potentially debasing procedure must be conducted with rigorous adherence to procedures and all due respect to human dignity. The Court found that the defendants in this case had not properly complied with the Prison Rules and also that the searches were not proportionate to the legitimate aim of fighting drugs in prisons in the manner in which they were carried out. The Court also held that the fact that the prison officers could not be liable for their actions was a violation of Article 13 (right to an effective remedy). The consequences are unclear, but it seems that the Court has determined that the state must provide a remedy for disproportionate invasions of privacy effected by officials of the state. This is more like wrongful use of state power and, while evidently useful in this context, the decision may be thought to have little effect on invasions of privacy by individuals or corporations.
14.2 The Human Rights Act and the reasonable expectation of privacy
In recent years, there have been a number of actions based on the so-called ‘right of privacy’ that derives from Article 8 ECHR. The issues here are what can be considered to be private information and when it can be expected that such information will not be made public. This (p. 349) action emerged from the equitable principle of breach of confidence, whereby information arising out of a confidential relationship will not be disclosed; it was not a common law tort at all. However, the law has now gone a long way beyond that. First, since Campbell, it is now clear that there is no need for a pre-existing confidential relationship to have existed, as once was the case (Coco v AN Clark (Engineers) Ltd  FSR 415). Secondly, the main driver of the content of the obligation is now Article 8. A general obligation to protect information where there is a ‘reasonable expectation’ of privacy now exists, subject to the countervailing public interest in the freedom of speech (see HRA, s 12(4)).
There are therefore two main issues: first, when is information to be regarded as sufficiently ‘private’ for the obligation to arise (i.e. when is there a ‘reasonable expectation of privacy?’) and, secondly, how is the balance between confidentiality and freedom of speech to be achieved? But there is also a theoretical problem. The stricter view is that the law is still based on the equitable obligation of confidence, albeit as ‘informed’ by the HRA—or one could say that the equitable obligation ‘absorbed’ the principles in the Act. An alternative, more radical, view was that espoused by Eady J in Mosley v News Group Newspapers  EWHC 1777 (QB) (extracted later in this section), where he talked of ‘the new methodology’ that, in effect, permits the HRA to have direct (‘horizontal’) effect between individuals. This, however, is difficult because, in theory, the Act can create rights only between individuals and public bodies, so there needs to be a source of the obligation of privacy other than the Act itself. There is no reason why equity cannot provide this theoretical basis because it in no way inhibits the content of the obligation as drawn from the ECHR. As we will see, such theoretical musings over principle may now be rendered redundant in light of judicial confirmation of the existence of a ‘tort of misuse of private information’ (Google Inc v Vidal-Hall and others  EWCA Civ 311).
6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section ‘public authority’ includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.
(6) ‘An act’ includes a failure to act but does not include a failure to—
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.
(p. 350) 7. Proceedings
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.
(2) In subsection (1)(a) ‘appropriate court or tribunal’ means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding.
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
(4) If the proceedings are made by way of a petition for judicial review in Scotland, the applicant shall be taken to have title and interest to sue in relation to the unlawful act only if he is, or would be, a victim of that act.
(5) Proceedings under subsection (1)(a) must be brought before the end of—
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances, but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
(6) In subsection (1)(b) ‘legal proceedings’ includes—
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
(8) Nothing in this Act creates a criminal offence.
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
12. Freedom of expression
(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.
(2) If the person against whom the application for relief is made (‘the respondent’) is neither present nor represented, no such relief is to be granted unless the court is satisfied— (p. 351)
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(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 Daily Mirror published an article about the model Naomi Campbell detailing the fact that she was a drug addict receiving treatment at Narcotics Anonymous (NA). It also gave some details of the treatment—including for how long, how frequently and at what times of day she received it, and the extent of her commitment to the process. The article was accompanied by photographs of her leaving the place where the treatment had taken place. Held (Lords Nicholls and Hoffmann dissenting): the defendant was liable for publishing confidential information about which Ms Campbell might have a reasonable expectation of privacy (the photos and the treatment details, but not the news item itself). Publication would have caused substantial offence to a person of ordinary sensibilities in the claimant’s position. The claimant was awarded £3,500. (Note: although the judges differed as to how the competing interests of privacy and free speech should be balanced on the facts of this case, Lord Hoffmann stated that they were unanimous on the general principles.)
LORD HOFFMANN (dissenting):
46. In recent years, however, there have been two developments of the law of confidence, typical of the capacity of the common law to adapt itself to the needs of contemporary life. One has been an acknowledgement of the artificiality of distinguishing between confidential information obtained through the violation of a confidential relationship and similar information obtained in some other way. The second has been the acceptance, under the influence of human rights instruments such as article 8 of the European Convention, of the privacy of personal information as something worthy of protection in its own right.
47. The first development is generally associated with the speech of Lord Goff of Chieveley in Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109, 281, where he gave, as illustrations of cases in which it would be illogical to insist upon violation of a confidential relationship, the ‘obviously confidential document … wafted by an electric fan out of a window into a crowded street’ and the ‘private diary … dropped in a public place’. He therefore formulated the principle as being that
a duty of confidence arises when confidential information comes to the knowledge of a person … 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. (p. 352)
48. This 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  QB 195, 207. It is now firmly established.
49. The second development has been rather more subtle. Until the Human Rights Act 1998 came into force, there was no equivalent in English domestic law of article 8 the European Convention or the equivalent articles in other international human rights instruments which guarantee rights of privacy. So the courts of the United Kingdom did not have to decide what such guarantees meant. Even now that the equivalent of article 8 has been enacted as part of English law, it is not directly concerned with the protection of privacy against private persons or corporations. It is, by virtue of section 6 of the 1998 Act, a guarantee of privacy only against public authorities. Although the Convention, as an international instrument, may impose upon the United Kingdom an obligation to take some steps (whether by statute or otherwise) to protect rights of privacy against invasion by private individuals, it does not follow that such an obligation would have any counterpart in domestic law.
50. What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person. There may of course be justifications for the publication of private information by private persons which would not be available to the state—I have particularly in mind the position of the media, to which I shall return in a moment—but I can see no logical ground for saying that a person should have less protection against a private individual than he would have against the state for the publication of personal information for which there is no justification. Nor, it appears, have any of the other judges who have considered the matter.
51. The result of these developments has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information. It recognises that the incremental changes to which I have referred do not merely extend the duties arising traditionally from a relationship of trust and confidence to a wider range of people. As Sedley LJ observed in a perceptive passage in his judgment in Douglas v Hello! Ltd  QB 967, 1001, the new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.
52. These changes have implications for the future development of the law. They must influence the approach of the courts to the kind of information which is regarded as entitled to protection, the extent and form of publication which attracts a remedy and the circumstances in which publication can be justified.
132. Neither party to this appeal has challenged the basic principles which have emerged from the Court of Appeal in the wake of the Human Rights Act 1998. 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. In a case such (p. 353) as this, the relevant vehicle will usually be the action for breach of confidence, as Lord Woolf CJ held in A v B plc  EWCA Civ 337,  QB 195, 202, para 4:
[Articles 8 and 10] 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 these articles.
133. The action for breach of confidence is not the only relevant cause of action: the inherent jurisdiction of the High Court to protect the children for whom it is responsible is another example: see In re S (a child) (identification: restrictions on publication)  EWCA Civ 963,  3 WLR 1425. But the courts will not invent a new cause of action to cover types of activity which were not previously covered: see Wainwright v Home Office  3 WLR 1137. Mrs Wainwright and her disabled son suffered a gross invasion of their privacy when they were strip-searched before visiting another son in prison. The common law in this country is powerless to protect them. As they suffered at the hands of a public authority, the Human Rights Act would have given them a remedy if it had been in force at the time, but it was not. That case indicates that 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.
134. This begs the question of how far the Convention balancing exercise is premissed on the scope of the existing cause of action. Clearly outside its scope is the sort of intrusion into what ought to be private which took place in Wainwright. Inside its scope is what has been termed the protection of the individual’s ‘informational autonomy’ by prohibiting the publication of confidential information. How does the scope of the action for breach of confidence accommodate the Article 8 rights of individuals? As Randerson J summed it up in Hosking v Runting  3 NZLR 385, 403, para 83 at p 403:
[The English courts] have chosen to develop the claim for breach of confidence on a case by case basis. In doing so, it has been recognised that no pre-existing relationship is required in order to establish a cause of action and that an obligation of confidence may arise from the nature of the material or may be inferred from the circumstances in which it has been obtained.
The position we have reached is that the exercise of balancing article 8 and article 10 may begin when the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential. …
137. It should be emphasised that the ‘reasonable expectation of privacy’ is a threshold test which brings the balancing exercise into play. It is not the end of the story. Once the information is identified as ‘private’ in this way, the court must balance the claimant’s interest in keeping the information private against the countervailing interest of the recipient in publishing it. Very often, it can be expected that the countervailing rights of the recipient will prevail.
138. The parties agree that neither right takes precedence over the other. This is consistent with Resolution 1165 (1998) of the Parliamentary Assembly of the Council of Europe, para 10:(p. 354)
The Assembly reaffirms the importance of everyone’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 they are of equal value.
139. 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 authorities 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.
140. The application of the proportionality test is more straightforward when only one Convention right is in play: the question then is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other. As each is a fundamental right, there is evidently a ‘pressing social need’ to protect it. The Convention jurisprudence offers us little help with this. The European Court of Human Rights has been concerned with whether the state’s interference with privacy (as, for example, in Z v Finland (1997) 25 EHRR 371) or a restriction on freedom of expression (as, for example, in Jersild v Denmark (1994) 19 EHRR 1, Fressoz and Roire v France (2001) 31 EHRR 2, and Tammer v Estonia (2001) 37 EHRR 857) could be justified in the particular case. In the national court, the problem of balancing two rights of equal importance arises most acutely in the context of disputes between private persons.
141. Both parties accepted the basic approach of the Court of Appeal in In re S  3 WLR 1425, 1451–2, at paras 54–60. This involves looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each. The parties in this case differed about whether the trial judge or the Court of Appeal had done this, the appellant arguing that the Court of Appeal had assumed primacy for the Article 10 right while the respondent argued that the trial judge had assumed primacy for the Article 8 right.
1. As to the balancing of the interests it was generally agreed that the newspaper could publish the fact that the claimant had taken drugs, but there was a difference of opinion concerning the information about the treatment and the publication of the photographs. On the latter issue Baroness Hale said, ‘But here the accompanying text made it plain that these photographs were different. They showed her coming either to or from the NA meeting. They showed her in the company of others, some of whom were undoubtedly part of the group. They showed the place where the meeting was taking place, which will have been entirely recognisable to anyone who knew the locality. A picture is “worth a thousand words” because it adds to the impact of what (p. 355) the words convey; but it also adds to the information given in those words. If nothing else, it tells the reader what everyone looked like; in this case it also told the reader what the place looked like. In context, it also added to the potential harm, by making her think that she was being followed or betrayed, and deterring her from going back to the same place again’ (at ).
2. This case takes a fairly conservative line on the role of the HRA, declaring that it has no direct effect and thus does not itself create a right of action, although the ECHR will ‘inform’ the issue of what is to be regarded as private and how confidentiality and freedom of speech are to be balanced. For a more radical view on the role of the ECHR, see McKennitt v Ash  2 WLR 194 (discussed later in this section).
3. In Douglas v Hello! Ltd (No 3)  EWCA Civ 595, Michael Douglas and Catherine Zeta-Jones contracted with OK! magazine (for £1 million) for the exclusive rights to photographs of their wedding in New York. Guests were told that no photographs were to be taken. The wedding reception was infiltrated by a paparazzo who sold six photographs (for £125,000) to Hello! magazine. It was assumed that Hello! must have known of the arrangement with OK! At first instance (Douglas v Hello!  3 All ER 996) the defendants were held liable and the claimants were awarded damages of £3,750 each for personal distress.
In the Court of Appeal the claimants held on to their claim for liability but lost their appeal on damages. The result seems to be as follows.
(a) Photographs of the wedding fell within the protection of the law of confidentiality as now extended to cover private or personal information. On the relevance of the ECHR Lord Phillips MR said: ‘We conclude 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 all point in the same direction. The court should, insofar 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 ECtHR’ (at ). There was no appeal from the award of £3,750 for distress, but the court said that even though the damages were low the claimants should have been granted an interlocutory injunction to prevent publication.
(b) The Douglases’ commercial rights were infringed. Lord Phillips said: ‘Where an individual (“the owner”) has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner’ (at ). However, the court rejected the idea that damages should be based on a notional licence fee—that is, what the claimants might have charged Hello! to use the photographs.
The Douglases were not parties to the appeal to the House of Lords ( UKHL 21), where OK! successfully claimed breach of confidence and gained damages of £1,026,706 from Hello!
4. Both Campbell and Douglas are important as they consolidated (the then) recent developments of this equitable principle. The essential point is that the wrong will protect ‘personal information’, but it is difficult to decide when a person has a ‘reasonable expectation’ of privacy. Why, for example, could the press disclose that Naomi Campbell was a drug addict but not that she was being treated by Narcotics Anonymous? How are pictures different from other forms of information?
5. In Prince of Wales v Associated Newspapers  EWCA Civ 1776, the Court of Appeal agreed that publication of the prince’s journal dealing with a visit to Hong Kong was a breach of confidence (p. 356) and would have been so even if the source had not been an employee of the prince, for example if the journal had been found in the street. The court repeated its view in Douglas v Hello! (No 3)  EWCA Civ 595 that information is 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 shall become available to others’ and 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’ (at ). The court viewed this as compatible with the view in Campbell that the question was whether a person had a reasonable expectation of privacy.
6. For a thorough study of these ‘early’ privacy cases, see Nicole Moreham ‘Privacy in the Common Law: A Doctrinal and Theoretical Analysis’ (2005) 121 LQR 628, which supports the ‘reasonable expectation’ of privacy test. See also Normann Witzleb ‘Monetary Remedies for Breach of Confidence in Privacy Cases’ (2007) 27 LS 430, who had the foresight to argue that the wrong of ‘misuse of private information’ should be freed from the constraints of the traditional action for breach of confidence.
7. Costs are a serious problem in defamation and privacy cases. The risk of having to pay huge costs can have a ‘chilling’ effect and inhibit a person from saying what he is entitled to say, and thus can act as a bar to freedom of speech. On the other hand, conditional fee agreements (CFAs) (no win, no fee) are a means by which the impecunious may pursue the protection of their reputation. After the decision in Campbell, Campbell’s claimed costs from the defendants amounted to £1,086,295. The defendants failed in their claim before the House of Lords (Campbell v MGN (No 2)  UKHL 61) that they should not have to pay the ‘success fee’ of the appeal to the House which was conducted under a conditional fee agreement (this was £279,981 and almost doubled the actual cost). The defendants argued that the threat of large fees was contrary to their freedom of expression under Article 10 ECHR, but this was rejected. Nevertheless, Lord Hoffmann did say that finding ways of moderating costs would be in the interests of all and that legislation may be necessary to find a way of complying with Article 10. In MGN Ltd v UK (Application no 39401/04)  ECHR 66, the European Court of Human Rights upheld MGN’s claim. (Note: Lord Justice Jackson’s Review of Civil Litigation Costs: Final Report (TSO, 2010) abolished recoverable success fees in CFAs.)
8. In relation to the ‘phone-hacking’ scandal at the Mirror newspapers, Mann J awarded damages to multiple affected claimants in 8 Representative Claimants and others v MGN Ltd  EWHC 855 (Ch), also finding that the regime permitting the recovery of success fees attached to CFAs is not incompatible with freedom of expression (see also Miller v Associated Newspapers  EWHC 397 (QB)). The defendants were given permission to ‘leapfrog’ the Court of Appeal and have their appeal heard by the Supreme Court alongside that in Flood v Times Newspapers  EWCA Civ 1574 (a defamation case raising similar costs issues) in January 2017. In April 2017 the Supreme Court unanimously dismissed all three appeals (Times Newspapers Ltd and others v Flood and others  UKSC 33).
Princess Caroline of Monaco complained of the publication of photographs of her in her daily life, albeit in public places, such as when out walking or leaving a restaurant. The German courts had refused a remedy on the grounds of freedom of the press (even the entertainment press) and the public interest in knowing how she behaved outside her representative function. The European Court of Human Rights, however, found a violation of Article 8.
56. In the present case the applicant did not complain of an action by the State, but rather of the lack of adequate State protection of her private life and her image. (p. 357)
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.
The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation …
58. That protection of private life has to be balanced against the freedom of expression guaranteed by Article 10 of the Convention. In that context the Court reiterates that the freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’ …
In that connection the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart—in a manner consistent with its obligations and responsibilities—information and ideas on all matters of public interest … Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation …
59. Although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance. The present case does not concern the dissemination of ‘ideas’, but of images containing very personal or even intimate ‘information’ about an individual. Furthermore, photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion into their private life or even of persecution.
60. In the cases in which the Court has had to balance the protection of private life against the freedom of expression it has always stressed the contribution made by photos or articles in the press to a debate of general interest …
c. Application of these general principles by the Court
61. The Court points out at the outset that in the present case the photos of the applicant in the various German magazines show her in scenes from her daily life, thus engaged in activities of a purely private nature such as practising sport, out walking, leaving a restaurant or on holiday. The photos, in which the applicant appears sometimes alone and sometimes in company, illustrate a series of articles with such anodyne titles as ‘Pure happiness’, ‘Caroline … a woman returning to life’, ‘Out and about with Princess Caroline in Paris’ and ‘The kiss. Or: they are not hiding anymore …’. …
62. The Court also notes that the applicant, as a member of the Prince of Monaco’s family, represents the ruling family at certain cultural or charitable events. However, she does not exercise any function within or on behalf of the State of Monaco or one of its institutions …
63. The Court considers 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 (p. 358) 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 ‘impart[ing] information and ideas on matters of public interest’ it does not do so in the latter case.
64. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this is not the case here. The situation here does not come within the sphere of any political or public debate because the published photos and accompanying commentaries relate exclusively to details of the applicant’s private life.
65. As in other similar cases it has examined, the Court considers that the publication of the photos and articles in question, of which the sole purpose was to satisfy the curiosity of a particular readership regarding the details of the applicant’s private life, cannot be deemed to contribute to any debate of general interest to society despite the applicant being known to the public …
66. In these conditions freedom of expression calls for a narrower interpretation …
67. In that connection the Court also takes account of the resolution of the Parliamentary Assembly of the Council of Europe on the right to privacy, which stresses the ‘one-sided interpretation of the right to freedom of expression’ by certain media which attempt to justify an infringement of the rights protected by Article 8 of the Convention by claiming that ‘their readers are entitled to know everything about public figures’ …
68. The Court finds another point to be of importance: even though, strictly speaking, the present application concerns only the publication of the photos and articles by various German magazines, 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 …
In the present case this point is illustrated in particularly striking fashion by the photos taken of the applicant at the Monte Carlo Beach Club tripping over an obstacle and falling down … It appears that these photos were taken secretly at a distance of several hundred metres, probably from a neighbouring house, whereas journalists and photographers’ access to the club was strictly regulated …
69. The Court reiterates the fundamental importance of protecting private life from the point of view of the development of every human being’s personality. That protection—as stated above—extends beyond the private family circle and also includes a social dimension. 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 …
70. Furthermore, increased vigilance in protecting private life is necessary to contend with new communication technologies which make it possible to store and reproduce personal data … This also applies to the systematic taking of specific photos and their dissemination to a broad section of the public.
71. Lastly, the Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective …
72. The Court has difficulty in agreeing with the domestic courts’ interpretation of section 23(1) of the Copyright (Arts Domain) Act, which consists in describing a person as such as a figure of contemporary society ‘par excellence’. Since that definition affords the person very limited protection of their private life or the right to control the use of their image, it could conceivably be appropriate for politicians exercising official functions. However, it cannot be justified for a ‘private’ individual, such as the applicant, in whom the interest of the general public and the press is based solely on her membership of a reigning family whereas she herself does not exercise any official functions.
In any event the Court considers that, in these conditions, the Act has to be interpreted narrowly to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one’s image. (p. 359)
73. Lastly, the distinction drawn between figures of contemporary society ‘par excellence’ and ‘relatively’ public figures has to be clear and obvious so that, in a state governed by the rule of law, the individual has precise indications as to the behaviour he or she should adopt. Above all, they need to know exactly when and where they are in a protected sphere or, on the contrary, in a sphere in which they must expect interference from others, especially the tabloid press.
74. The Court therefore considers that the criteria on which the domestic courts based their decisions were not sufficient to protect the applicant’s private life effectively. As a figure of contemporary society ‘par excellence’ she cannot—in the name of freedom of the press and the public interest—rely on protection of her private life unless she is in a secluded place out of the public eye and, moreover, succeeds in proving it (which can be difficult). Where that is not the case, she has to accept that she might be photographed at almost any time, systematically, and that the photos are then very widely disseminated even if, as was the case here, the photos and accompanying articles relate exclusively to details of her private life.
75. In the Court’s view, the criterion of spatial isolation, although apposite in theory, is in reality too vague and difficult for the person concerned to determine in advance. In the present case merely classifying the applicant as a figure of contemporary society ‘par excellence’ does not suffice to justify such an intrusion into her private life.
76. As the Court has stated above, it considers 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. It is clear in the instant case that they made no such contribution since the applicant exercises no official function and the photos and articles related exclusively to details of her private life.
77. Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well known to the public.
Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court’s view, yield to the applicant’s right to the effective protection of her private life.
78. Lastly, in the Court’s opinion the criteria established by the domestic courts were not sufficient to ensure the effective protection of the applicant’s private life and she should, in the circumstances of the case, have had a ‘legitimate expectation’ of protection of her private life.
79. Having regard to all the foregoing factors, and despite the margin of appreciation afforded to the State in this area, the Court considers that the German courts did not strike a fair balance between the competing interests.
80. There has therefore been a breach of Article 8 of the Convention.
1. This decision is fairly restrictive as it seems to take the view that freedom of expression would normally be limited to the role of the press as a ‘watchdog’ in protecting the public interest (at ). The Court noted that the princess did not exercise any official function on behalf of Monaco and that details of her daily life contributed nothing to debates of general interest to society despite her being a public figure. However, in a concurring opinion, Judge Cabral Barreto said that ‘the applicant is a public figure and the public does have a right to be informed about (p. 360) her life’ (at ) and that the test is whether a person has a ‘legitimate expectation’ of being safe from the media. Perhaps the answer is that those who seek publicity can only expect limited protection and cannot always choose the nature of that publicity, but a person who has no official position and who seeks privacy will be better protected at least in relation to places and functions where they would not expect to be exposed to the press.
2. Princess Caroline was awarded £7,000 against the German Government for its failure to protect her interests.
3. In Wood v Commissioner of Police of the Metropolis  EWCA Civ 414, the police photographed the claimant (a protestor) in the street after he had attended a meeting of a company indirectly involved in the arms trade. There was no disturbance at the meeting and the claimant had never been arrested for his campaigning activities. The Court of Appeal held that the taking of the photographs violated Article 8. Laws LJ said that the mere act of taking a photograph of a person in a public place would not violate Article 8, but that the retention of photographs by a state authority would, because the police action was:
unexplained at the time it happened and carrying as it did the implication that the images would be kept and used, is a sufficient intrusion by the state into the individual’s own space, his integrity, as to amount to a prima facie violation of Article 8(1). It attains a sufficient level of seriousness and in the circumstances the claimant enjoyed a reasonable expectation that his privacy would not be thus invaded. (at )
The majority (Laws LJ dissenting) held that the action of the police could not be justified under Article 8(2).
The claimant was David Murray, the 19-month-old son of Dr and Mrs Murray (otherwise known as JK Rowling, the author of the Harry Potter books). Covert photographs were taken of the family walking from their flat to a local café. Mrs Murray was shown alongside the buggy. David’s face in profile was visible, as were the clothes he was wearing, his size, the style and colour of his hair and the colour of his skin. This picture was subsequently published in the Sunday Express. Held: David’s privacy action should not have been struck out at first instance: he had a reasonable expectation of privacy.
SIR ANTHONY CLARKE MR:
24. The principles stated by Lord Nicholls [in Campbell] can we think be summarised in this way:
(i) The right to freedom of expression enshrined in article 10 of the Convention and the right to respect for a person’s privacy enshrined in article 8 are vitally important rights. Both lie at the heart of liberty in a modern state and neither has precedence over the other: see .
(ii) Although the origin of the cause of action relied upon is breach of confidence, since information about an individual’s private life would not, in ordinary usage, be called ‘confidential’, the more natural description of the position today is that such information is private and the essence of the tort is better encapsulated now as misuse of private information: see .
(iii) The values enshrined in articles 8 and 10 are now part of the cause of action and should be treated as of general application and as being as much applicable to disputes between individuals as to disputes between individuals and a public authority: see .
(iv) Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy: see . (p. 361)
(v) In deciding whether there is in principle an invasion of privacy, it is important to distinguish between that question, which seems to us to be the question which is often described as whether article 8 is engaged, and the subsequent question whether, if it is, the individual’s rights are nevertheless not infringed because of the combined effect of article 8(2) and article 10: see . …
35. In these circumstances, so far as the relevant principles to be derived from Campbell are concerned, they can we think be summarised in this way. The first question is whether there is a reasonable expectation of privacy. This is of course an objective question. The nature of the question was discussed in Campbell. Lord Hope emphasised that the reasonable expectation was that of the person who is affected by the publicity. He said at :
The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.
We do not detect any difference between Lord Hope’s opinion in this regard and the opinions expressed by the other members of the appellate committee.
36. As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.
37. In the case of a child the position is somewhat different from that of an adult. The judge recognised this in  of his judgment, where he said this, albeit in the context of a somewhat differently formulated test discussed by Lord Hope at  in Campbell:
This test cannot, of course, be applied to a child of the Claimant’s age who has no obvious sensitivity to any invasion of his privacy which does not involve some direct physical intrusion into his personal space. A literal application of Lord Hope’s words would lead to a rejection of any claim by an infant unless it related to harassment of an extreme kind. A proper consideration of the degree of protection to which a child is entitled under Art. 8 has, I think, for the reasons which I gave earlier to be considered in a wider context by taking into account not only the circumstances in which the photograph was taken and its actual impact on the child, but also the position of the child’s parents and the way in which the child’s life as part of that family has been conducted. This merely reinforces my view about the artificiality of bringing the claim in the name of the child. The question whether a child in any particular circumstances has a reasonable expectation for privacy must be determined by the Court taking an objective view of the matter including the reasonable expectations of his parents in those same circumstances as to whether their children’s lives in a public place should remain private. Ultimately it will be a matter of judgment for the Court with every case depending upon its own facts. The point that needs to be emphasized is that the assessment of the impact of the taking and the subsequent publication of the photograph on the child cannot be limited by whether the child was physically aware of the photograph being taken or published or personally affected by it. The Court can attribute to the child reasonable expectations about his private life based on matters such as how it has in fact been conducted by those responsible for his welfare and upbringing.
38. Subject to the point we made earlier that we do not share the judge’s view that the proceedings are artificial, we agree with the approach suggested by the judge in that paragraph. Thus, for (p. 362) example, if the parents of a child courted publicity by procuring the publication of photographs of the child in order to promote their own interests, the position would or might be quite different from a case like this, where the parents have taken care to keep their children out of the public gaze.
39. As applied in this case, which, unlike McKennitt v Ash, is not a case in which there was a pre-existing relationship between the parties, the first question at any trial of the action would be whether article 8 was in principle engaged; that is whether David had a reasonable expectation of privacy in the sense that a reasonable person in his position would feel that the Photograph should not be published. On Lord Nicholls’ analysis, that is a lower test than would be involved if the question were whether a reasonable person in his position would regard publication as either offensive or highly offensive. That question would or might be relevant at the second, balancing stage, assuming article 8 to be engaged on the footing that David had a reasonable expectation that commercial picture agencies like BPL would not set out to photograph him with a view to selling those photographs for money without his consent, which would of course have to be given through his parents.
40. At a trial, if the answer to the first question were yes, the next question would be how the balance should be struck as between the individual’s right to privacy on the one hand and the publisher’s right to publish on the other. If the balance were struck in favour of the individual, publication would be an infringement of his or her article 8 rights, whereas if the balance were struck in favour of the publisher, there would be no such infringement by reason of a combination of articles 8(2) and 10 of the Convention.
41. At each stage, the questions to be determined are essentially questions of fact. The question whether there was a reasonable expectation [of] privacy is a question of fact. If there was, the next question involves determining the relevant factors and balancing them. As Baroness Hale put it at , the weight to be attached to the various considerations is a matter of fact and degree. That is essentially a matter for the trial judge.
57. It seems to us that, subject to the facts of the particular case, the law should indeed protect children from intrusive media attention, at any rate to the extent of holding that a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place for publication which the person who took or procured the taking of the photographs knew would be objected to on behalf of the child. That is the context in which the photographs of David were taken.
58. It is important to note that so to hold does not mean that the child will have, as the judge puts it in , a guarantee of privacy. To hold that the child has a reasonable expectation of privacy is only the first step. Then comes the balance which must be struck between the child’s rights to respect for his or her private life under article 8 and the publisher’s rights to freedom of expression under article 10. This approach does not seem to us to be inconsistent with that in Campbell, which was not considering the case of a child.
1. The Court of Appeal stressed that the appeal was being brought on behalf of David and not his parents: ‘We do not think that the reality is that the parents seek through their son to establish a right to personal privacy for themselves and their children when engaged in ordinary family activities. The positions of parents on the one hand and children on the other hand are distinct’ (at ). The judgment suggests that had JK Rowling herself been claiming, she would have been unsuccessful.
2. It is generally accepted that one should be very wary of portraying children in the media, and often when such pictures are published the face is pixelated to prevent identity. Would this (p. 363) picture have been acceptable if the child’s face had been obscured, or would that have been just as problematic as it would be obvious who the child was? The Independent Press Standards Organisation (IPSO) Editors’ Code states that ‘Editors must not use the fame, notoriety or position of the parent or guardian as sole justification for publishing details of a child’s private life’ (at 6(v)). However, the Code also indicates that the mere publication of a child’s image cannot breach the Code when it is taken in a public place and is unaccompanied by any private details or materials which might embarrass or inconvenience the child. This may have been based on the view in Campbell that there would have been no action if the photograph had simply depicted Campbell on a more banal errand such as a shopping trip (see Baroness Hale at ). In its section on whether the ‘Public Interest’ may justify publishing the information, para 5 states that in ‘cases involving children under 16, editors must demonstrate an exceptional public interest to over-ride the normally paramount interests of the child’.
3. On the ‘reasonable expectation of privacy’ question, the issue must be looked at from the point of view of the child for it is their expectations that are considered. The question is whether similar photographs would be taken and published if the subject is the child of ‘ordinary’ parents. Thus, presumably, the inclusion of a picture of a child in a general street scene would not be actionable, but it was noted that in Murray the child was ‘targeted’ for particular reasons. It was also noted that the situation might be different if the parents courted publicity by arranging for the publication of photographs of the child in order to promote their own interests.
4. Though children do not have an inalienable right to privacy, ETK v Newsgroup Newspapers  EWCA Civ 439 confirmed that courts should give particular weight to the Article 8 rights of children likely to be affected by a publication. Recent cases show that decisions about photographs of children can go either way: compare, for example, AAA v Associated Newspapers  EWCA Civ 554 and Weller and others v Associated Newspapers Ltd  EWCA Civ 1176.
5. The impact of an invasion of adults’ privacy on their children may also be a factor taken into account in a case (ETK v Newsgroup Newspapers). In reinstating an injunction temporarily overturned by a Court of Appeal decision, in a case brought about by a celebrity’s extramarital sexual activities, the Supreme Court in PJS v News Group Newspapers Ltd  UKSC 26 found that the Court of Appeal had not adequately considered the impact that the publication of the information would have on the children of the celebrity concerned.
The News of the World published an article about the claimant—then president of the Fédération Internationale de l’Automobile (FIA), and thus responsible for F1 motor racing—under the headline ‘F1 boss has sick Nazi orgy with five hookers’. The article described, alongside covertly taken photographs, the claimant’s participation in sadomasochistic activities with a number of women, all of whom consented to what happened. Held: the claimant was awarded damages of £60,000 for breach of privacy.
The ‘new methodology’
7. Although the law of ‘old-fashioned breach of confidence’ has been well established for many years, and derives historically from equitable principles, these have been extended in recent years under the stimulus of the Human Rights Act 1998 and the content of the Convention itself. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence. That is because the law is concerned to prevent the violation of a citizen’s (p. 364) autonomy, dignity and self-esteem. It is not simply a matter of ‘unaccountable’ judges running amok. Parliament enacted the 1998 statute which requires these values to be acknowledged and enforced by the courts. In any event, the courts had been increasingly taking them into account because of the need to interpret domestic law consistently with the United Kingdom’s international obligations. It will be recalled that the United Kingdom government signed up to the Convention more than 50 years ago.
10. … If the first hurdle can be overcome, by demonstrating a reasonable expectation of privacy, it is now clear that the court is required to carry out the next step of weighing the relevant competing Convention rights in the light of an ‘intense focus’ upon the individual facts of the case: see eg Campbell and Re S (A Child)  1 AC 593. It was expressly recognised that no one Convention right takes automatic precedence over another. In the present context, for example, it has to be accepted that any rights of free expression, as protected by Article 10, whether on the part of Woman E or the journalists working for the News of the World, must no longer be regarded as simply ‘trumping’ any privacy rights that may be established on the part of the Claimant. Language of that kind is no longer used. Nor can it be said, without qualification, that there is a ‘public interest that the truth should out’: cf. Fraser v Evans  1 QB 349, 360F–G, per Lord Denning MR.
11. In order to determine which should take precedence, in the particular circumstances, it is necessary to examine the facts closely as revealed in the evidence at trial and to decide whether (assuming a reasonable expectation of privacy to have been established) some countervailing consideration of public interest may be said to justify any intrusion which has taken place. This is integral to what has been called ‘the new methodology’: Re S (A Child) at .
12. This modern approach of applying an ‘intense focus’ is thus obviously incompatible with making broad generalisations of the kind to which the media often resorted in the past such as, for example, ‘Public figures must expect to have less privacy’ or ‘People in positions of responsibility must be seen as “role models” and set us all an example of how to live upstanding lives’. Sometimes factors of this kind may have a legitimate role to play when the ‘ultimate balancing exercise’ comes to be carried out, but generalisations can never be determinative. In every case ‘it all depends’ (ie upon what is revealed by the intense focus on the individual circumstances).
14. … This ‘ultimate balancing test’ has been recognised as turning to a large extent upon proportionality: see eg Sedley LJ in Douglas v Hello! Ltd  QB 967 at . The judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public interest supposedly being served by it.
15. One of the more striking developments over the last few years of judicial analysis, both here and in Strasbourg, is the acknowledgment that the balancing process which has to be carried out by individual judges on the facts before them necessarily involves an evaluation of the use to which the relevant defendant has put, or intends to put, his or her right to freedom of expression. That is inevitable when one is weighing up the relative worth of one person’s rights against those of another. It has been accepted, for example, in the House of Lords that generally speaking ‘political speech’ would be accorded greater value than gossip or ‘tittle tattle’: see eg Campbell at  and also Jameel (Mohammed) v Wall Street Journal Europe Sprl  1 AC 359 at .
Was there a reasonable expectation of privacy or a duty of confidence?
98. In deciding whether there was at stage one a reasonable expectation of privacy generalisations are perhaps best avoided, just as at stage two, and the question must be addressed in the light of all the circumstances of the particular case: see eg Murray v Big Pictures  EWCA Civ 446 at –. Nevertheless, one is usually on safe ground in concluding that anyone indulging in sexual (p. 365) activity is entitled to a degree of privacy—especially if it is on private property and between consenting adults (paid or unpaid).
99. There is now a considerable body of jurisprudence in Strasbourg and elsewhere which recognises that sexual activity engages the rights protected by Article 8. As was noted long ago in Dudgeon v UK (1981) 4 EHRR 149, there must exist particularly serious reasons before interferences on the part of public authorities can be legitimate for the purposes of Article 8(2) because sexual behaviour ‘concerns a most intimate aspect of private life’. That case concerned the criminal law in the context of buggery and gross indecency (in Northern Ireland). It was said at  that Article 8 rights protect in this respect ‘an essentially private materialisation of the human personality’.
100. There are many statements to similar effect, the more lofty of which do not necessarily withstand rigorous analysis. The precise meaning is not always apparent. Nevertheless, the underlying sentiments are readily understood in everyday language; namely, that people’s sex lives are to be regarded as essentially their own business—provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable.
104. … In the light of these two strands of authority, it becomes fairly obvious that the clandestine recording of sexual activity on private property must be taken to engage Article 8. What requires closer examination is the extent to which such intrusive behaviour could be justified by reference to a countervailing public interest; that is to say, at the stage of carrying out the ultimate balancing test. I will focus on those arguments shortly.
Was there a public interest to justify the intrusion? My own conclusions
131. When the courts identify an infringement of a person’s Article 8 rights, and in particular in the context of his freedom to conduct his sex life and personal relationships as he wishes, it is right to afford a remedy and to vindicate that right. The only permitted exception is where there is a countervailing public interest which in the particular circumstances is strong enough to outweigh it; that is to say, because one at least of the established ‘limiting principles’ comes into play. Was it necessary and proportionate for the intrusion to take place, for example, in order to expose illegal activity or to prevent the public from being significantly misled by public claims hitherto made by the individual concerned (as with Naomi Campbell’s public denials of drug-taking)? Or was it necessary because the information, in the words of the Strasbourg court in Von Hannover at  and , would make a contribution to ‘a debate of general interest’? That is, of course, a very high test. It is yet to be determined how far that doctrine will be taken in the courts of this jurisdiction in relation to photography in public places. If taken literally, it would mean a very significant change in what is permitted. It would have a profound effect on the tabloid and celebrity culture to which we have become accustomed in recent years.
132. The facts of this case are far removed from those in Von Hannover. There can be little doubt that intimate photographs or recording of private sexual activity, however unconventional, would be extremely difficult to justify at all by Strasbourg standards: see eg Dudgeon v UK (cited above) at –. It is those to which we are now required by the Human Rights Act to have regard. Obviously, titillation for its own sake could never be justified. Yet it is reasonable to suppose that it was this which led so many thousands of people to accept the News of the World’s invitation on 30 March to ‘See the shocking video at notw.co.uk’. It would be quite unrealistic to think that these visits were prompted by a desire to participate in a ‘debate of general interest’ of the kind contemplated in Von Hannover.
133. More recently the principles have been affirmed in Strasbourg in the case of Leempoel v Belgium, App No 64772/01, 9 November 2006:
(p. 366) In matters relating to striking a balance between protecting private life and the freedom of expression that the Court had had to rule upon, it has always emphasised … the requirement that the publication of information, documents or photographs in the press should serve the public interest and make a contribution to the debate of general interest … Whilst the right for the public to be informed, a fundamental right in a democratic society that under particular circumstances may even relate to aspects of the private life of public persons, particularly where political personalities are involved … publications whose sole aim is to satisfy the curiosity of a certain public as to the details of the private life of a person, whatever their fame, should not be regarded as contributing to any debate of general interest to society.
In the light of the strict criteria I am required to apply, in the modern climate, I could not hold that any of the visual images, whether published in the newspaper or on the website, can be justified in the public interest. Nor can it be said in this case that even the information conveyed in the verbal descriptions would qualify.
1. Eady J clearly wishes to leave behind the equitable origins of the obligation of confidence and to establish ‘the new methodology’ on the basis of the ECHR. The difficulty in theory is that the Convention creates rights only between individuals and public bodies, but Article 8 ECHR seems to be treated rather differently from the other Articles and subsequent cases show that Eady J appears to have been right.
2. Eady J noted that had the ‘Nazi theme’ as alleged by the News of the World been made out, the conclusion may have been different, as then there may have been a public interest in the publication. (The claimant was the son of Oswald Mosley, founder of the British Union of Fascists.)
3. Discussion about the nature of the claim in privacy may have become less important since the explicit recognition of a tort of misuse of private information, first by Tugendhat J in Vidal-Hall and others v Google Inc  EWHC 13 (QB) (at , echoing an expression first used by Lord Nicholls in Campbell) and later affirmed by the Court of Appeal (Google Inc v Vidal-Hall and others ). The judges clearly viewed this tort as existing separately, and alongside, the equitable action for breach of confidence.
LORD DYSON MR AND LADY JUSTICE SHARP:
1. The appeal in this case raises two important issues of law. The first is whether the cause of action for misuse of private information is a tort, specifically for the purposes of the rules providing for service of proceedings out of the jurisdiction.
2. The claimants are three individuals who used Apple computers between the summer of 2011 and about 17 February 2012. Each of them accessed the internet using their Apple Safari browser.
3. The case concerns the operation of what has become known as the ‘Safari workaround’. The essence of the complaint is that the defendant collected private information about the claimants’ internet usage via their Apple Safari browser (the Browser-Generated Information, or ‘BGI’) without the claimants’ knowledge and consent, by using a small string of text saved on the user’s device (‘cookies’). This allowed the defendant to recognise the browser sending the BGI. The BGI was (p. 367) then aggregated and used by the defendant as part of its commercial offering to advertisers via its ‘doubleclick’ advertising service. This meant advertisers could select advertisements targeted or tailored to the claimants’ interests, as deduced from the collected BGI, which could be and were displayed on the screens of the claimants’ computer devices. This revealed private information about the claimants, which was or might have been seen by third parties. The tracking and collation of the claimants’ BGI was contrary to the defendant’s publicly stated position that such activity could not be conducted for Safari users unless they had expressly allowed it to happen.
17. The issue of classification or nomenclature has been the subject of some discussion in the cases, and amongst academics. So far as we are aware however—with the possible exception, on the defendant’s case, of Douglas v Hello! (No 3)—this is the first case in which the ‘classification’ question has made a difference. Put shortly, if a claim for misuse of information is not a tort for the purposes of service out of the jurisdiction, but is classified as a claim for breach of confidence, then on the authority of Kitechnology BV v Unicor, which is binding on us, the claimants will not be able to serve their claims for misuse of private information on the defendant.
18. Although the issue as framed in this appeal in one sense is a narrow one, it is nonetheless appropriate to look at it in the broader context. Fifteen years have passed since the coming into force of the Human Rights Act 1998 (the HRA) in October 2000, which incorporates into our domestic law the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). And it is a decade now since the seminal decision of the House of Lords in Campbell v MGN  2 AC 457. The problem the courts have had to grapple with during this period has been how to afford appropriate protection to ‘privacy rights’ under article 8 of the Convention, in the absence (as was affirmed by the House of Lords in Wainwright v Home Office  2 AC 406) of a common law tort of invasion of privacy.
19. We were taken to a number of cases by Mr White to establish what is in fact an uncontroversial proposition—that the gap was bridged by developing and adapting the law of confidentiality to protect one aspect of invasion of privacy, the misuse of private information. This addressed the tension between the requirement to give appropriate effect to the right to respect for private and family life set out in article 8 of the Convention and the common law’s perennial need (for the best of reasons, that of legal certainty) to appear not to be doing anything for the first time (to which Sedley LJ pointed in one of the earliest cases in which this issue was addressed: Douglas v Hello! Limited  QB 967 (Douglas v Hello (No 1)) para 111).
20. Thus, in A v B plc  QB 195 at para 4, Lord Woolf CJ, giving the judgment of the court, said that articles 8 and 10 of the Convention provided new parameters within which the courts would decide actions for breach of confidence, and that the court could act in a way that was compatible with Convention rights, as it was required to do under section 6 of the HRA 1998, by ‘absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence.’
21. However, a number of things need to be said. First, there are problems with an analysis which fails to distinguish between a breach of confidentiality and an infringement of privacy rights protected by article 8, not least because the concepts of confidence and privacy are not the same and protect different interests. Secondly, as has been consistently emphasised by the courts, we are concerned with a developing area of the law. Although the process may have started as one of ‘absorption’ (per Lord Woolf) it is clear that, contrary to the submissions of the defendant, there are now two separate and distinct causes of action: an action for breach of confidence; and one for misuse of private information. Thirdly, it is also the case that the action for misuse of private information has been referred to as a tort by the courts.
43. … [W]e cannot find any satisfactory or principled answer to the question why misuse of private information should not be categorised as a tort for the purposes of service out of the jurisdiction. (p. 368) Misuse of private information is a civil wrong without any equitable characteristics. We do not need to attempt to define a tort here. But if one puts aside the circumstances of its ‘birth’, there is nothing in the nature of the claim itself to suggest that the more natural classification of it as a tort is wrong.
51. We come back then to the question we have to decide. Against the background we have described, and in the absence of any sound reasons of policy or principle to suggest otherwise, we have concluded in agreement with the judge that misuse of private information should now be recognised as a tort for the purposes of service out the jurisdiction. This does not create a new cause of action. In our view, it simply gives the correct legal label to one that already exists. We are conscious of the fact that there may be broader implications from our conclusions, for example as to remedies, limitation and vicarious liability, but these were not the subject of submissions, and such points will need to be considered as and when they arise.
Max Mosley subsequently asked the European Court of Human Rights to affirm that the UK had failed to impose a legal duty on newspapers to notify victims in advance in order to allow them the opportunity to seek an interim injunction to prevent publication of material that amounted to a breach of privacy. The claim was rejected.
105. The Court further notes that as far as the balancing act in the circumstances of the applicant’s particular case was concerned, the domestic court firmly found in favour of his right to respect for private life and ordered the payment to the applicant of substantial monetary compensation. The assessment which the Court must undertake in the present proceedings relates not to the specific facts of the applicant’s case but to the general framework for balancing rights of privacy and freedom of expression in the domestic legal order. The Court must therefore have regard to the general principles governing the application of Article 8 and Article 10, before examining whether there has been a violation of Article 8 as a result of the absence of a legally binding pre-notification requirement in the United Kingdom.
A. General Principles
i. Article 8
106. It is clear that the words ‘the right to respect for … private … life’ which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction … Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves …
107. The Court emphasises the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect. The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States’ margin of appreciation. …
108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of ‘respect’ in Article 8 is not (p. 369) clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case … Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention … In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order …
109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity … Thus, in cases concerning Article 8, where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed … The same is true where the activities at stake involve a most intimate aspect of private life …
110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation: where no consensus exists, the margin of appreciation afforded to States is generally a wide one … Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field …
111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 …
ii. Article 10
112. The Court emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law … Not only does the press have the task of imparting such information and ideas but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’ …
113. It is to be recalled that methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court to substitute its own views for those of the press as to what technique of reporting should be adopted … However, editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, ‘the protection of … the rights of others’, including the requirements of acting in good faith and on an accurate factual basis and of providing ‘reliable and precise’ information in accordance with the ethics of journalism …
114. The Court also reiterates that there is a distinction to be drawn between reporting facts—even if controversial—capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life … In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a ‘public watchdog’ are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life … Such reporting does not attract the (p. 370) robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation … While confirming the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, the Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it.
115. It is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media … Accordingly, although freedom of expression also extends to the publication of photographs, the Court recalls that this is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate ‘information’ about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices … Factors relevant to the assessment of where the balance between the competing interests lies include the additional contribution made by the publication of the photos to a debate of general interest as well as the content of the photographs …
116. The Court recalls that the nature and severity of any sanction imposed on the press in respect of a publication are relevant to any assessment of the proportionality of an interference with the right to freedom of expression … Thus the Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern …
117. Finally, the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest … The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.
B. Application of the General Principles to the Facts of the Case
118. As noted above (see paragraph 106), it is clear that a positive obligation arises under Article 8 in order to ensure the effective protection of the right to respect for private life. The question for consideration in the present case is whether the specific measure called for by the applicant, namely a legally binding pre-notification rule, is required in order to discharge that obligation.
119. The Court observes at the outset that this is not a case where there are no measures in place to ensure protection of Article 8 rights. A system of self-regulation of the press has been established in the United Kingdom, with guidance provided in the Editors’ Code and Codebook and oversight of journalists’ and editors’ conduct by the PCC [now IPSO]. This system reflects the 1970 declaration, the 1998 resolution and the 2008 resolution of the Parliamentary Assembly of the Council of Europe (see paragraphs 55 and 58–59 above). While the PCC itself has no power to award damages, an individual may commence civil proceedings in respect of any alleged violation of the right to respect for private life which, if successful, can lead to a damages award in his favour. In the applicant’s case, for example, the newspaper was required to pay GBP 60,000 damages, approximately GBP 420,000 in respect of the applicant’s costs and an unspecified sum in respect of its own legal costs in defending the claim. The Court is of the view that such awards can reasonably be expected to have a salutary effect on journalistic practices. Further, if an individual is aware of a pending publication relating to his private life, he is entitled to seek an interim injunction preventing publication of the (p. 371) material. Again, the Court notes that the availability of civil proceedings and interim injunctions is fully in line with the provisions of the Parliamentary Assembly’s 1998 resolution … Further protection for individuals is provided by the Data Protection Act 1998, which sets out the right to have unlawfully collected or inaccurate data destroyed or rectified …
120. The Court further observes that, in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information. Thus in Von Hannover, cited above, the Court’s analysis focused on whether the judgment of the domestic courts in civil proceedings brought following publication of private material struck a fair balance between the competing interests. In Armoniene, cited above, a complaint about the disclosure of the applicant’s husband’s HIV-positive status focused on the ‘derisory sum’ of damages available in the subsequent civil proceedings for the serious violation of privacy. While the Court has on occasion required more than civil law damages in order to satisfy the positive obligation arising under Article 8, the nature of the Article 8 violation in the case was of particular importance. Thus in X and Y v the Netherlands, 26 March 1985, the Court insisted on the need for criminal law provisions to achieve deterrence in a case which involved forced sexual intercourse with a sixteen year old mentally handicapped girl. In K U v Finland, 2 December 2008, the availability of civil law damages from an Internet service provider was inadequate where there was no possibility of identifying the person who had posted an advert in the name of the applicant, at the time only twelve years old, on a dating website, thus putting him at risk of sexual abuse.
121. In the present case the Court must consider whether, notwithstanding its past approach in cases concerning violations of the right to respect for private life by the press, Article 8 requires a pre-notification rule in order to ensure effective protection of the right to respect for private life. In doing so, the Court will have regard, first, to the margin of appreciation available to the respondent State in this field (see paragraphs 108–110 above) and, second, to the clarity and potential effectiveness of the rule called for by the applicant. While the specific facts of the applicant’s case provide a backdrop to the Court’s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny.
i. The margin of appreciation
122. The Court recalls, first, that the applicant’s claim relates to the positive obligation under Article 8 and that the State in principle enjoys a wide margin of appreciation (see paragraph 108 above). It is therefore relevant that the respondent State has chosen to put in place a system for balancing the competing rights and interests which excludes a pre notification requirement. It is also relevant that a parliamentary committee recently held an inquiry on privacy issues during which written and oral evidence was taken from a number of stakeholders, including the applicant and newspaper editors. In its subsequent report, the Select Committee rejected the argument that a pre-notification requirement was necessary in order to ensure effective protection of respect for private life …
123. Second, the Court notes that the applicant’s case concerned the publication of intimate details of his sexual activities, which would normally result in a narrowing of the margin of appreciation (see paragraph 109 above). However, the highly personal nature of the information disclosed in the applicant’s case can have no significant bearing on the margin of appreciation afforded to the State (p. 372) in this area given that, as noted above (see paragraph 121 above), any pre-notification requirement would have an impact beyond the circumstances of the applicant’s own case.
124. Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression … Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe … The Court therefore concludes that the respondent State’s margin of appreciation in the present case is a wide one.
ii. The clarity and effectiveness of a pre-notification requirement
126. … However, the Court is persuaded that concerns regarding the effectiveness of a pre- notification duty in practice are not unjustified. Two considerations arise. First, it is generally accepted that any pre notification obligation would require some form of ‘public interest’ exception … Thus a newspaper could opt not to notify a subject if it believed that it could subsequently defend its decision on the basis of the public interest. The Court considers that in order to prevent a serious chilling effect on freedom of expression, a reasonable belief that there was a ‘public interest’ at stake would have to be sufficient to justify non-notification, even if it were subsequently held that no such ‘public interest’ arose. The parties’ submissions appeared to differ on whether ‘public interest’ should be limited to a specific public interest in not notifying (for example, where there was a risk of destruction of evidence) or extend to a more general public interest in publication of the material. The Court would observe that a narrowly defined public interest exception would increase the chilling effect of any pre-notification duty.
128. Second, and more importantly, any pre-notification requirement would only be as strong as the sanctions imposed for failing to observe it. A regulatory or civil fine, unless set at a punitively high level, would be unlikely to deter newspapers from publishing private material without pre-notification. In the applicant’s case, there is no doubt that one of the main reasons, if not the only reason, for failing to seek his comments was to avoid the possibility of an injunction being sought and granted … Thus the News of the World chose to run the risk that the applicant would commence civil proceedings after publication and that it might, as a result of those proceedings, be required to pay damages. In any future case to which a pre-notification requirement applied, the newspaper in question could choose to run the same risk and decline to notify, preferring instead to incur an ex post facto fine.
129. Although punitive fines or criminal sanctions could be effective in encouraging compliance with any pre-notification requirement, the Court considers that these would run the risk of being incompatible with the requirements of Article 10 of the Convention. It reiterates in this regard the need to take particular care when examining restraints which might operate as a form of censorship prior to publication. It is satisfied that the threat of criminal sanctions or punitive fines would create a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention.
(p. 373) iii. Conclusion
132. … However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.
1. The Court approves the view of Eady J that there was no justification for the invasion of privacy, but nevertheless notes that each jurisdiction has a wide ‘margin of appreciation’ within which to frame the reasonable expectation of privacy and the public interest in publication. This margin allows individual courts and jurisdictions an element of choice based on local values and culture, but this discretion will be diminished if there is wide consensus across the jurisdictions as to where the limits should be placed.
2. On the particular point at issue, the question of a ‘pre-notification’ rule, the Court considered that such a rule would have too great a ‘chilling effect’ so as to limit freedom of speech. It would also be ineffective because large media companies would regard any fine as merely one of the costs of being in the newspaper business. However, this problem is also bound up with the question of remedies—notably the ‘super-injunction’, which prevents not only publication of information but also anyone knowing that an injunction has been issued. If there is no justification for pre-notification, how can a super-injunction be justified? This is discussed further in section 14.3.2.
The level of damages in privacy cases has been relatively modest, having been guided by the European Court of Human Rights in Von Hannover. The amounts have been, for example, nowhere near those awarded in defamation cases (see section 15.11). The relevant principles are discussed by Eady J in Mosley.
The facts are given in section 14.2 and this extract deals solely with the issue of compensatory damages. Eady J had already decided that exemplary damages—designed to make an example of the defendant—were not allowable because ‘there is no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the tests of necessity and proportionality’ (at ). (p. 374)
The nature of compensatory damages in privacy cases
214. Because both libel and breach of privacy are concerned with compensating for infringements of Article 8, there is clearly some scope for analogy. On the other hand, it is important to remember that this case is not directly concerned with compensating for, or vindicating, injury to reputation. The claim was not brought in libel. The distinctive functions of a defamation claim do not arise. The purpose of damages, therefore, must be to address the specific public policy factors in play when there has been ‘an old fashioned breach of confidence’ and/or an unauthorised revelation of personal information. It would seem that the law is concerned to protect such matters as personal dignity, autonomy and integrity.
216. Thus it is reasonable to suppose that damages for such an infringement may include distress, hurt feelings and loss of dignity. The scale of the distress and indignity in this case is difficult to comprehend. It is probably unprecedented. Apart from distress, there is another factor which probably has to be taken into account of a less tangible nature. It is accepted in recent jurisprudence that a legitimate consideration is that of vindication to mark the infringement of a right: see eg Ashley v Chief Constable of Sussex  2 WLR 975 at – and Chester v Afshar  1 AC 134 at . Again, it should be stressed that this is different from vindication of reputation (long recognised as a proper factor in the award of libel damages). It is simply to mark the fact that either the state or a relevant individual has taken away or undermined the right of another—in this case taken away a person’s dignity and struck at the core of his personality. It is a relevant factor, but the underlying policy is to ensure that an infringed right is met with ‘an adequate remedy’. If other factors mean that significant damages are to be awarded, in any event, the element of vindication does not need to be reflected in an even higher award. As Lord Scott observed in Ashley, ibid, ‘… there is no reason why an award of compensatory damages should not also fulfil a vindicatory purpose’.
217. If the objective is to provide an adequate remedy for the infringement of a right, it would not be served effectively if the court were merely to award nominal damages out of distaste for what the newspaper had revealed. As I have said, that should not be the court’s concern. It would demonstrate that the judge had been distracted from the main task. The danger would be that the more unconventional the taste, and the greater the embarrassment caused by the revelation, the less effective would be the vindication. The easier it would be for the media to hound minorities.
218. These are the elements which need to be recognised in an award of damages in this field but, of course, they must be proportionate and not open to the criticism of arbitrariness: see eg Tolstoy Miloslavsky v UK (1995) 20 EHRR 442. It has been recognised since the Court of Appeal decision in John v MGN Ltd  QB 586 that there must be a readily identifiable scale in the field of defamation so as to avoid, as far as possible, the vices pointed out in Strasbourg. The guidance there provided can to that extent be transferred to the present environment. Thus, it will be legitimate, in particular, to pay some attention to the current levels of personal injury awards in order to help maintain a sense of proportion.
222. It must be recognised that it may be appropriate to take into account any aggravating conduct in privacy cases on the part of the defendant which increases the hurt to the claimant’s feelings or ‘rubs salt in the wound’ …
224. So too, it may be appropriate that a claimant’s conduct should be taken into account (as it is in libel cases). Logically, it may be said, a claimant’s conduct has nothing to do with whether or not his privacy has been invaded or the impact upon his feelings caused by such an intrusion. There is no doctrine of contributory negligence. On the other hand, the extent to which his own conduct has (p. 375) contributed to the nature and scale of the distress might be a relevant factor on causation. Has he, for example, put himself in a predicament by his own choice which contributed to his distress and loss of dignity?
225. To what extent is he the author of his own misfortune? Many would think that if a prominent man puts himself, year after year, into the hands (literally and metaphorically) of prostitutes (or even professional dominatrices) he is gambling in placing so much trust in them. There is a risk of exposure or blackmail inherent in such a course of conduct …
226. To a casual observer, therefore, and especially with the benefit of hindsight, it might seem that the Claimant’s behaviour was reckless and almost self-destructive. This does not excuse the intrusion into his privacy but it might be a relevant factor to take into account when assessing causal responsibility for what happened. It could be thought unreasonable to absolve him of all responsibility for placing himself and his family in the predicament in which they now find themselves. It is part and parcel of human dignity that one must take at least some responsibility for one’s own actions …
227. An issue to which attention was directed in counsel’s submissions was that of deterrence. Passing reference has been made in the authorities from time to time to this concept, but it seems at least questionable whether deterrence should have a distinct (as opposed to a merely incidental) role to play in the award of compensatory damages. It is a notion more naturally associated with punishment. It often comes into the court’s assessment of an appropriate punishment for prevalent criminal offences. There is also the anomaly to be considered, already mentioned in the context of exemplary damages; namely, that if damages are paid to an individual for the purpose of deterring the defendant (or others) it would naturally be seen as an undeserved windfall.
228. Furthermore, if deterrence is to have any prospect of success it would be necessary to take into account (as with exemplary damages) the means of the relevant defendant (often a newspaper group). Any award against the present Defendant would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function. There is also a concomitant danger in including a large element of deterrence by way of ‘chilling effect’.
230. I am conscious naturally that the analogy with defamation can only be pressed so far. I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone’s sex life will carry no adverse consequences for them and (as Mr Thurlbeck [author of the original article] put it in his 2 April email) that the news agenda will move on.
231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.
(p. 376) Notes
1. Mosley was awarded £60,000 plus costs of £420,000. He also sued in Germany, where he negotiated a settlement of €250,000. He was also awarded €7,000 in France.
2. The damages in Mosley were considerably higher than in previous privacy cases. Was this because of the allegations of the Nazi connotations of the proceedings, or perhaps because of the secret filming of what went on and the publication of the video on the Internet?
3. Compare other awards: in Douglas, the claimants were awarded £3,750 each for unauthorised publication of wedding photographs; in McKennitt v Ash  2 WLR 194, the claimant was awarded £5,000 for stories about her personal and sexual relationships; in Lady Archer v Williams  EWHC 1670 (QB), the claimant was awarded £2,500 for stories by her personal assistant. (Note here also the risks of litigation: Lady Archer was awarded costs, but was unable to recoup them from the defendant. She then sued her lawyers for wasting costs and lost that action too: see  EWHC 3048 (QB).) In Burrell v Clifford  EWHC 294 (Ch) Paul Burrell (former royal butler) was awarded £5,000 (plus costs, despite the defendant—publicist Max Clifford—arguing against these) for the publication of information contained in a personal letter to the defendant.
4. In Gulati and others v MGN  EWHC 1482 (Ch), multiple claimants received significant damages payments ranging from £72,500 to £260,250 (amounting to a total of some £1.2 million) in the phone-hacking cases. The size and extent of the awards can probably be said to represent the repeated invasions of privacy suffered by the claimants and the criminal nature by which the information was obtained.
5. Where there is significant harm, both general and aggravated damages may be awarded. In Richard v The British Broadcasting Corporation (BBC) and another  EWHC 1837 (Ch)), the entertainer Sir Cliff Richard was awarded £210,000 general and aggravated damages, with additional special damages to be later determined, after the BBC had filmed and sensationally broadcast footage of police entering one of his properties as part of an investigation into an allegation of historic child sexual abuse (for which Richard was never charged).
There has been much controversy and confusion in recent years about the granting of so-called ‘super-injunctions’ in privacy cases—so much so that a special committee chaired by the Master of the Rolls was set up to discuss the issue (see The Report of the Committee on Super Injunctions: Super Injunctions, Anonymised Injunctions and Open Justice 20 May 2011).
There has been much confusion about terminology. The Committee distinguished between ‘anonymised inunctions’ and ‘super-injunctions’ as follows:
a super-injunction can properly be defined as follows: an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings (the ‘super’ element of the order).
This is to be contrasted with an anonymised injunction, which is: an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated. (at [2.14])
The Committee also noted that super-injunctions are now extremely rare and are granted only when there is a danger of a ‘tip-off’—that is, when the defendant or his associates could (p. 377) frustrate the purpose of the order if he or they were to become aware of it in advance; for example, in fraud cases in which the assets could be hidden before the order takes effect. That said, a new super-injunction, taken against the Sunday Times by a famous person to prevent any information about them—even their gender—being published, was reported in February 2017. The Sunday Times is said to have issued legal proceedings to have the injunction overturned, though such action may be redundant given that the identity of the celebrity concerned was leaked by overseas media outlets and then reported in the UK press.
The Committee also said that the correct approach to anonymised injunctions is that taken in JIH v News Group Newspapers. It also recommended that official guidance should be issued and that a standard form of injunction should be drafted for interim non-disclosure orders; this has been done.
The claimant, known for these purposes as ‘JIH’, was a well-known sportsman, who had been in a long-term and conventional relationship with ‘X’. He sought to prevent publication of an alleged sexual encounter that he had in 2010 with ‘Z’. In August 2010, JIH discovered that the defendants had been told by ‘Z’ of this alleged encounter. JIH began proceedings without revealing his identity in the publicly available court papers. Held: JIH was granted anonymity.
THE MASTER OF THE ROLLS (LORD NEUBERGER): The cardinal importance of open justice is demonstrated by what is stated in Article 6 of the Convention. But it has long been a feature of the common law … The point was perhaps most pithily made by Lord Atkinson when he said ‘in public trial is to be found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’ For a more recent affirmation of the principle, see R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 65, paras 38–42, per Lord Judge CJ.
However, as with almost all fundamental principles, the open justice rule is not absolute: as is clear from Article 6, there will be individual cases, even types of cases, where it has to be qualified. In a case involving the grant of an injunction to restrain the publication of allegedly private information, it is, as I have indicated, rightly common ground that, where the court concludes that it is right to grant an injunction (whether on an interim or final basis) restraining the publication of private information, the court may then have to consider how far it is necessary to impose restrictions on the reporting of the proceedings in order not to deprive the injunction of its effect.
In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:
(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.
(2) There is no general exception for cases where private matters are in issue.
(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.
(p. 378) (4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.
(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.
(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.
(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.
(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.
(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.
(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.
Where, as here, the basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule by restricting the extent to which the proceedings can be reported, and (b) if so, the judge ensures that the restrictions on publication are fashioned so as to satisfy the need for the encroachment in a way which minimises the extent of any restrictions.
In the present case, as in many cases where the court grants an injunction restraining publication of information, the claimant’s case as to why there is a need for restraints on publication of aspects of the proceedings themselves which can normally be published is simple and cogent. If the media could publish the name of the claimant and the substance of the information which he is seeking to exclude from the public domain (ie what would normally be information of absolutely central significance in any story about the case—who is seeking what), then the whole purpose of the injunction would be undermined, and the claimant’s private life may be unlawfully exposed.
In the course of his judgment, at  EWHC 2818 (QB), paras 8 and 9, Tugendhat J accepted the proposition advanced before him by Mr Tomlinson for JIH that:
Where the court has accepted that the publication of private information should be restrained, if the court is to avoid disclosing the information in question it must proceed in one of two alternative ways:
(1) If its public judgment or order directly or indirectly discloses the nature of the information in question then it should be anonymised;
(2) If the claimant is named in the public judgment or order then the information should not be directly or indirectly identified.
(p. 379) While that is not an unfair assessment in the present case, in other cases the position will sometimes be a little less stark. However, in any case, it is plainly correct that, where the court permits the identity of the claimant to be revealed, it is hard to envisage circumstances where that would not mean that significantly less other information about the proceedings could be published than if the proceedings were anonymised. Thus, if the identity of JIH could be published in the context of the present proceedings, it would not be appropriate to permit the publication of even the relatively exiguous information contained in paras 7–9 above. As the Judge went on to say, the obvious corollary is that, if the claimant is accorded anonymisation, it will almost always be appropriate to permit more details of the proceedings to be published than if the claimant is identified.
1. Guidance on anonymised injunctions has now been issued. See Master of the Rolls (2011) Practice Guidance: Interim Non-Disclosure Orders (available at www.judiciary.gov.uk). The Ministry of Justice also now publishes information about how often such orders are made.
2. Commenting on the ‘tipping-off’ point in Terry v Persons Unknown  EWHC 119 (QB), Tugendhat J said:
The reason why, on some occasions, applicants wish for there to be an order restricting reports of the fact that injunction has been granted is in order to prevent the alleged wrongdoer from being tipped off about the proceedings before an injunction could be applied for, or made against him, or before he can be served. In the interval between learning of the intention of the applicant to bring proceedings, and the receipt by the alleged wrongdoer of an injunction binding upon him, the alleged wrongdoer might consider that he or she could disclose the information, and hope to avoid the risk of being in contempt of court. Alternatively, in some cases, the alleged wrongdoer may destroy any evidence which may be needed in order to identify him as the source of the leak. Tipping off of the alleged wrongdoer can thus defeat the purpose of the order. (at )
3. Anonymity orders can be varied (so a once anonymous claimant may not stay that way)—see, for examples, Hutcheson (Formerly Known As ‘KGM’) v News Group Newspapers Ltd and others  EWCA Civ 808; Giggs (formerly known as CTB) v NGN Ltd and another  EWHC 431 (QB); Khuja (formerly known as PNM) v Times Newspapers  UKSC 49.