Invasion of Privacy/Misuse of Private Information

AuthorDavid A. Potts
ProfessionBarrister, Bar of Ontario
 : Invasion of Privacy/Misuse of
Private Information
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
. 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
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 
) 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-
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 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
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

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