Misuse of Private Information in UK Law

For all these reasons, I refuse permission to amend the case against the first defendant in the form of the draft proposed. This decision is final so far as it relates to the claims in conspiracy, wrongful interference, and under the Human Rights Act. It must be amended to cut it down to a claim for damages for harassment, but the possibility of adding to it will remain live.

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 seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy.

In this case it is in my judgment essential, if there is to be a fair and efficient resolution of the claims, for the claimant to identify the information he seeks to protect and to specify the matters relied on in support of the contention that the retention, disclosure or use of the information would represent a misuse of private information or a breach of confidence.