Invasion of Privacy/Misuse of Private Information
| Author | David A. Potts |
| Profession | Barrister, Bar of Ontario |
| Pages | 371-406 |
: Invasion of Privacy/Misuse of
Private Information
A. INTRODUCTION
Lord Homan n in Jameel et al. v. Wall Street Journal, [] UKHL at
para. held:
Until very rec ently, the law of defamation was weighted in favour of clai m-
ants a nd the law of privac y weighted aga inst them. True but t rivial intr u-
sions into private life were safe. Repor ts of investigations by the newspaper
into matters of public concern which could be construed a s reecting badly
on public gures domestic or foreign were risky. e House attempted to
redress the balance in favour of privac y in Campbell v MGN Ltd [] AC
and in favour of greater freedom for the press to publi sh stories of genu-
ine public interest in Reynold s v. Times Newspapers Ltd [] AC .
Defamation provides no remedy for the disclosure of private facts or pri-
vate information that is true. is problem repeatedly occurs on the Internet.
Here are some examples:
. One party in a relationship discloses to the public photographs about in-
timate aspects of that relationship, without the other par ty’s consent.
. Partic ipants on Facebook provide informat ion to one group who then
disclose that information to a wider audience, without a participant’s
consent.
. Participants i n chat rooms that a re accessible by password only disclose
information to the world about other participants without their consent.
. Organizations disclose information in t he media without consent.
. e media publishes condential information without the consent of an
individu al.
Cyberlibel: Information Warfare in the st Century?
. Details of a person’s private life on t he Internet can become “permanent
digital “bag gage” even when these details occurred at an earlier stage of a
person’s life.
For more examples see Danie l Solove, e Future of Reputation, Gossip, Rumo ur
and Privacy on the Inter net (New Haven, CT: Yale University Press, ) at
B. SURVEY OF THE LAW
) e UK
a) No General Tort of Invasion of Privacy
ere is no general tort of invasion of privacy in English law.
Campbell v. MGN, [] UKHL
Wainwright & Anor v. Home Oce, [] UKHL
b) Misuse of Private Information
English law has developed a tort describe d now as “misuse of private infor-
mat ion .”
Lord R . Nicholls in Campbell v. MGN Ltd., [] U KHL , stated at
paras. – and –:
In th is country, un like the United States of A merica, there is no over-arch-
ing, all-embraci ng cause of action for ‘invasion of privacy’: see Wainwright v.
Home Oc e [] WLR . But protection of various aspects of privacy is
a fast developing area of the law, here and in some other common law jurisdic-
tions. e recent decision of the C ourt of Appeal of New Zeala nd in Hosking
v. Runting ( March ) i s an ex ample o f thi s. In t his co untr y devel opment
of the law has been spurred by enact ment of the Human Rights Act .
e present case concern s one aspec t of i nvasion of privac y: wrongfu l
disclosure of private information. e case involves the familiar competi-
tion between f reedom of expression and respect for an individual’s privac y.
Both are vitally import ant rights. Neither has precedence over the other. e
importance of freedom of expression has been stressed oen and eloquently,
the importa nce of privacy less so. But it, too, lies at the heart of l iberty in a
modern state. A proper degree of privacy is essential for the well-being and
development of an individual. And restraints imposed on government to pry
into the lives of the citizen go to the essence of a democratic state: see La For-
est J in R v Dymont [] SCR , .
. . .
Chapter : Invasion of Privacy/Misuse of Private Information
is cause of action ha s now rmly shaken o the limiti ng constraint of
the need for an initia l condential relationsh ip. In doing so it has changed
its nat ure. In this count ry this development was recognised clearly in the
judgment of Lord Go of Chieveley in Attorney-Ge neral v. Guardian News-
papers Ltd (No ) [] AC , . Now the law imposes a ‘duty of con-
dence’ whenever a person receives information he knows or ought to k now
is fairly and reasonably to be regarded as condential. Even this formulation
is awkwa rd. e continuing use of t he phrase ‘ duty of condence’ and the
description of the information as ‘condential’ is not altogether comfortable.
Information about an i ndividual’s private life would not, i n ordinary usage,
be cal led ‘condential.’ e more natu ral description to day is that such in-
formation is private. e essence of the tort is better encapsulated now as mis-
use of private information [emphasis added].
In the c ase of individuals this tort, however l abelled, aords respect for
one aspect of an indiv idual’s privacy. at is the value underlying this c ause
of action. An individual ’s privacy can be invaded in ways not involving pub-
lication of i nformation. Strip-searches a re an example. e extent to which
the common law a s developed thus far i n this country protects other forms
of invasion of privac y is not a matter ari sing in the present case. It does not
arise because , although pleaded more widely, Miss Campbell’s common law
claim wa s throughout presented i n court exclusively on the basis of breach
of condence, that is, the w rongful publication by the ‘Mir ror’ of private
information.
c) Principles of the Tort of Misuse of Private Information
For a detai led discussion of the approach taken by the c ourts i n actions for
misuse of private information, see Mos ley v. N ews gro up New spa pe rs L td., [ ]
EWHC at paras. – (QB), Eady J.:
Although t he law of “old-fashioned breach of condence” has been well e s-
tablished for many yea rs, and derives historica lly from equitable principles,
these have be en extended in recent years under the st imulus of the Human
Rights Act and the content of the Convention itself. e law now aords
protection to informat ion in respect of which there is a reasonable expecta-
tion of privacy, even in circumsta nces where t here is no pre-existing rela-
tionship giving rise of itself to an enforceable dut y of condence. at is
because the law is concerned to prevent the violation of a citizen’s autonomy,
dignity a nd self-esteem. It is not si mply a matter of “unaccountable” judges
running amok . Parliament enacted the statute which requires these val-
ues to be acknowledged and enforced by t he courts. In any event, the courts
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