Misuse of Private Information in UK Law

Moreover, there has come to be recognised in domestic law, over the last four years or so, by way of an extension to the existing equitable principles governing breach of confidence, a right of protection against the “misuse of private information”: see e.g. Campbell v MGN Ltd [2004] AC 457 and McKennitt v Ash [2008] QB 73. The cases in which these new principles have so far been applied have been primarily concerned with the wrongful communication of information, in respect of which the claimant had a reasonable expectation of privacy, to a third party or to the world at large.

I shall award £50,000 to Mr Cooper as damages for libel and an additional £30,000 for damages for misuse of private information. Since damages for libel include compensation for distress, I must avoid double counting. If I had been awarding damages for misuse of private information alone, I would have awarded £40,000 for that.

Now the law imposes a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The essence of the tort is better encapsulated now as misuse of private information.

Accordingly, in deciding what was the ambit of an individual's 'private life' in particular circumstances courts need to be on guard against using as a touchstone a test which brings into account considerations which should more properly be considered at the later stage of proportionality. Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.

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.

The domestic law of confidence was extended again by the House of Lords in Campbell v MGN Ltd [2004] UKHL 21, [2004] 2 AC 457, effectively to incorporate the right to respect for private life in article 8 of the Convention, although its extension from the commercial sector to the private sector had already been presaged by decisions such as Argyll v Argyll and Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804.

It is of the essence of the claimant's right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence.