The information must have ‘ the necessary quality of confidence.’
What is the ‘necessary quality’? The
test for this was given in the Naomi Campbell case by Lord Hope: "The
underlying question is whether the information that was disclosed was
private and not public. If the information is obviously private, the
situation will be one where the person to whom it relates can reasonably
expect his privacy to be respected.”
Information held by the courts to be ‘obviously private’
includes trade secrets, the plot of a Harry Potter book, details of
people’s sex lives, medical treatments, diaries, a company’s
business plans – none of them trivial matters. The law will not
Many people have a clause in their employment contracts banning them
from exploiting information they obtained as a result of their work
- nannies and PAs employed by celebrities are an obvious example. But
even if there is no specific confidentiality clause there is an implied
term in every contract that the employee will not act in any way detrimental
to his employer’s interests.
Members of the security services, civil servants, members of the armed
forces – none of them have written employment contracts but the
courts have determined, notably in the Peter Wright Spycatcher case,
that they have a duty of confidence with regard to information obtained
through their work.
In most cases the media is the third party in a breach of confidence
claim. It is the relationship between the informer and the victim which
creates the obligation of confidence but once that obligation exists
it covers anyone else who makes unauthorised use of the information
- providing they know it was obtained as a result of a breach of confidence.
of private information
Libel, there are no hard and fast rules by which privacy cases are decided.
Areas of libel such as fair comment and statutory privilege have precise
rules which must be satisfied if the defences are to be gained.That
is not the case with privacy. Instead, each case is exposed to what
the law calls “intense focus upon the individual facts.”
The framework within which the intense focus is directed is broadly
law will protect information which is "obviously private"
or where there is a “reasonable expectation” of privacy.
The question central to each case is: Was there a reasonable expectation
that the information would remain private? The
court looks at:
The nature of the information – whether it is merely titillation
or more serious matter.
The way in which it is displayed – the more lurid the coverage
the more likely it will be restrained.
court has to decide two points:
1. Did the claimant have a reasonable expectation of privacy with
respect to the information disclosed? If so,
2. Was the person’s right to privacy more important, in the
circumstances, than someone else’s right to freedom of expression?
is when the balancing act takes place between the
competing rights of Article 8, respect for private and family life,
and Article 10, the right to freedom of expression and "the right
...to receive and impart information and ideas."
question the courts ask is a simple one: Was the information obviously
Where the answer to the question is not ‘obvious’ then Lord
Hope, in the Campbell case, suggested that the test should be whether
or not the information disclosed would give substantial offence to the
The mind that had to be examined was not that of any ordinary reader
of the information but of the person affected by the publicity.
Lord Hope referred to pictures taken of Campbell outside a hall in London
where the Narcotics Anonymous meetings where held.
The pictures were taken on a public street and so were not ‘obviously’
private, neither did they show her in an embarrassing light to the ordinary
Therefore the court had to consider what their effect would be on someone
in her position. As she was a recovering drug addict she would be vulnerable
and the publication of the pictures might well adversely affect her
This, said Lord Hope, suggested that Campbell had a legitimate expectation
of privacy and the pictures should not have been used.
The issuing of injunctions is a very important point of privacy law.
When the Human Rights Act was being debated, the media lobbied MPs to
ensure that injunctions could not be issued without media challenge.The
result was S12 which outlines the factors a duty judge must take into
account when considering whether to grant an injunction.
If an injunction is granted, it applies not only to the newspaper directly
concerned but to all other media organisations who know about the injunction.
are the rules:
If the newspaper is not present or represented at the hearing then an
injunction can not be granted unless the court is satisfied:
a. The person applying for the injunction has taken every practicable
step to notify the newspaper about the hearing or
b. There are compelling reasons why the newspaper should not be notified.
No injunction should granted unless the court is satisfied that the
applicant is finally likely to be able to establish that publication
should not be allowed.
3. During it all the court must have regard to:
the importance of the media's right to freedom of expression.
b. the extent to which it is in the public interest for the material
to be published, while at the same time keeping in mind any relevant
issue of privacy.
media’s right to freedom of expression is an important part of
the injunction debate but the court must also consider ‘any relevant
means that the court will look to see if newspaper journalists have
behaved in accordance with the Press Complaints Commission’s code
of conduct or broadcast journalists with the Ofcom code.
As far as public interest is concerned, in straightforward terms it
is best defined as in the PCC code:
1. Detecting or exposing crime or serious impropriety
2. Protecting public health and safety.
3. Protecting the public from being misled by the actions or statements
of individuals or organisations.
public interest becomes less straightforward in privacy cases because
here there are two ‘public interests’ in competition with
Public interest in providing protection for confidential information.
Public interest in the public receiving the kind of information which
is necessary for them to make choices as members of a democratic society.
as a general rule the courts will give ‘public interest’
protection to stories which affect the daily life of the general population
as outlined in the PCC code above.
But privacy case law indicates more and more clearly that the courts
will not see a public interest defence in stories about celebrity sex
life – no matter how interesting the public find them.
It is a case of the public interest not what the public finds interesting.
The test according to the Strasbourg court in the Princess Caroline
case (Von Hannover v Germany) is: Would the information
(the story or picture) make a contribution to “a debate of general
The House of Lords interpreted that as meaning that generally speaking
“political speech” would be accorded greater value than
gossip or “tittle-tattle”.