Misuse of private information

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Misuse of private information is a new common law tort that English courts recognised in Campbell v MGN Ltd.[1] Arising as a branch of the law relating to breach of confidence, it has been reinforced by Article 8 of the European Convention on Human Rights, supplemented by s. 6 of the Human Rights Act 1998, which obliges public institutions (including the courts) not to act inconsistently with Convention rights.

Scope[edit]

Campbell was the watershed moment where the tort of "misuse of private information" became distinguished in scope from that relating to breach of confidence, as the former does not require "an initial confidential relationship."[2] In addition, actions for misuse of private information can readily attract tortious damages, while those for breach of confidence may receive damages only as an equitable remedy within the discretion of the presiding judge.[3]

While it will be obvious what may constitute public (as opposed to private) information in most cases, there will be times where it will need to be assessed as to whether disclosure of information would give substantial offence to an ordinary individual, as noted in Australia by Gleeson CJ in 2001:

As originally recognized in Campbell, a cause of action was restricted to disclosures of information or activities in which the plaintiff had a reasonable expectation of privacy.[5] It has been subsequently expanded to include bare intrusions into privacy, such as where certain photographs are taken in a public place.[5][6]

For example, an injunction against the Wolverhampton Express and Star was obtained in 2005 by an owner of several homes for troubled children to restrain it from disclosing plans for further homes, even though information was publicly available from searches of HM Land Registry records and unredacted minutes of local authority proceedings.[7] In his judgment, Tugendhat J explained why, in this case, rights under Article 8 overrode competing obligations under Article 10 of the European Convention on Human Rights relating to freedom of expression:

Other Commonwealth jurisprudence[edit]

In addition to the Australian case law drawn upon by Campbell, there has been other jurisprudence arising in New Zealand[9] and Canada.[10] While the House of Lords followed the model previously adopted by the High Court of Australia, the other two jurisdictions based their approach on the US Restatement of Torts (Second).[11] It has been noted in Canada that the more principled approach adopted by the English courts post-Campbell may be a better one to follow.[12]

See also[edit]

Further reading[edit]

References[edit]

  1. ^ Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 (6 May 2004)
  2. ^ Campbell, par. 14
  3. ^ "Misuse of Private Information is a Tort Distinct from Breach of Confidence". Allen & Overy. 12 March 2014. , discussing Vidal-Hall v Google Inc [2014] EWHC 13 (QB) (16 January 2014)
  4. ^ ABC v Lenah Game Meats Pty Ltd [2001] HCA 63 at par. 42, 208 CLR 199 (15 November 2001), quoted at Campbell, par. 93
  5. ^ a b Hunt 2012, p. 662.
  6. ^ Wood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 at para. 34 (21 May 2009)
  7. ^ Casement, David; Diaz-Rainey, Julian (13 March 2006). "Private matters". The Lawyer. , discussing Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 (QB) (18 May 2005)
  8. ^ Green Corns, par. 81
  9. ^ Hosking v Runting [2004] NZCA 34, [2005] 1 NZLR 1 (25 March 2004)
  10. ^ Jones v Tsige 2012 ONCA 32, 108 OR (3d) 241 (18 January 2012)
  11. ^ Hunt 2012, pp. 661–662.
  12. ^ Hunt 2012, p. 663.