Breach of Confidence

This is a tort (wrong) that allows you to sue someone that has revealed confidential information about you.  You can seek damages or an injunction to stop disclosure (publication) of the information.  This was originally a method to protect trade secrets.

• ·         Prince Albert v Strange: tort is adapted to protect personal paintings, demonstrates use beyond trade.
• ·         Peck v UK: Court of Human Rights agree with claimant that no remedy had been provided for the infringement of privacy suffered.  This is lack of compliance with S.6 of HRA: Courts must provide a remedy for privacy or risk being sued.

However

To support Article 8 fully, you must infringe Article 10.

S.12 HRA: if courts are thinking of granting a remedy that takes away freedom of expression, they must consider:

•         If the information is in the public domain, or about to be. OR
•         If it is in the public interest to publish the information.

Court’s test for privacy cases:

1.      Has the threshold of a reasonable expectation of privacy been passed?

2.      Should the limiting factor that the information is in the public domain be applied?

3.      Is publication of the information in the public interest? (freedom of speech/privacy balance)

The test is drawn from: Campbell v MGN, Mckennit v Ash, HRH Prince of Wales v MGN Newspapers Ltd and Others

·         Pre-HRA: The law did not protect trivial information.  Only ‘personal information’; information directly about you.  The category of ‘personal information’ was widened for sexual orientation by Stephens v Avery, and physical appearance by HRH Princess of Wales.

·         Post-HRA: The law now protects ‘private information’.  The case of Douglas v Hello saw the Court of Appeal question ‘What is the nature of ‘private information’?’ and also state ‘the right to privacy, which lies at the heart of the breach of confidence action’.  The courts are now talking on privacy in relation to breach of confidence, linking them.  There is also an improvement with the category of ‘private information’ rather than ‘personal information’.

•       McKennit v Ash: The court stated information will be considered private and protected if it is in principle protect by Art. 8.  Judges are now referring to Art.8, so it could be argued that breach of confidence has become a privacy law.

• The form of information can help the claim, such as a diary in the HRH Prince of Wales case.  Photographs are seen as particularly dangerous because they can record minute details that can be reproduced exactly time and time again

o   Pre-HRA: Coco v Clarke: There must be an obligation of confidence i.e. a pre-existing confidential relationship such as;

§  A Professional Relationship e.g. employer/employee

§  Marriage as in Argyll v Argyll

§  Stephens v Avery: Approach was modified so that there was an obligation of confidence where information was received on the ‘basis that it is confidential’, either expressed as so by the imparter, or implied as so by the content of the information.

§  Newspapers are not bound by an obligation of confidence; but courts have decided that information should be kept confidential if its content indicates it is confidential.

o   Post-HRA: There is no longer a need for an obligation of confidence.  The new requirement is whether there is a ‘reasonable expectation of privacy’.

§  Campbell v MGN: Lord Hope: ‘a duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy be protected’

§  Protection is better; it now depends on whether the claimant believes the information should remain private.  The mention of ‘privacy’ again implies that breach of confidence is a privacy law.  Ultimately, it is Parliamentary Sovereignty that prevents it officially being called a law of privacy.

·         Pre-HRA: AG v Guardian Newspapers Ltd (No2): Prior publicity is a relevant but not conclusive factor in deciding if information is protected.

·         Post-HRA: Information can still remain private even where it is known to a number of persons, as in Mills v News Group Newspapers and Blair v Associated Newspapers, this case demonstrating that a large number of people can know the information and it can still be private.  This is better protection, as even if thousands of people are aware of and know the information, it can still be counted as confidential.  This is easier for the claimant.

o   Pre-HRA: Information, such as a picture of someone walking down the street, cannot be confidential.  An exception was developed in HRH Princess of Wales v MGN Newspapers Ltd and Others based on a lack of intention for the information concerned to enter the public domain.  The case demonstrated that information gathered in a semi-public place be observation could also be protected.

o   Post-HRA: The Courts are more willing for information gathered in the public domain to be protected.  Emphasis has been placed on how the information is gathered; an example is the Campbell case.  The photograph was taken on the street, but it was still decided to be a breach of confidence.  The activity photographed need not be private, it depends on if it has been taken secretly.This is better protection; the public domain is now protected in certain circumstances.

·         Pre-HRA: The law of confidence could not be used to protect a wrong doing.  The ‘warts and all’ approach was adopted, allowing for the correction of a false persona.  This left few limits on the media.

·         Post-HRA: The ‘warts and all’ approach is still used; it is still possible to correct a false persona.  But limits have been imposed, as the Campbell case demonstrates.  The judge, in the case, agreed that the publisher had a right to correct Campbell’s persona, but not in the detail that they had.  It seems that the media cannot publish every detail.

·         This is better protection; there are now limits on the public interest defence.

Max Mosely: This case saw a record amount of damages awarded to the claimant for an unjustifiable breach of privacy; judges rejected the public interest defence, and stated there is a ‘reasonable expectation of privacy’ in relation to sexual activities.

Mosely v UK: The case was brought on the fact that Mosely was unable to prevent his private information being published, and once published it could not be ‘unpublished’.  Mosely felt there should be notification before articles are printed.  But, the Court of Human Rights disagreed with him.