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 Homan 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 reecting 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 condential information without the consent of an

individual.

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 Oce,[] UKHL 

b) Misuse of Private Information

English law has developed a tort describe d now as “misuse of private infor-

mation.”

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 Oc 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 oen 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 condential 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 condential. Even this formulation

is awkwa rd. e continuing use of t he phrase ‘ duty of condence’ and the

description of the information as ‘condential’ is not altogether comfortable.

Information about an i ndividual’s private life would not, i n ordinary usage,

be cal led ‘condential.’ 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, aords 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 condence, 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 condence” 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 aords

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 condence. 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