Newsdesk Law revision: privacy


There are two branches of privacy law:

The first is the old-fashioned “breach of confidence.”

The second is the “misuse of private information.”

The law of confidence does what it says on the cover. It protects information given in confidence. But not all embarrassing information can be classed as confidential. Say a journalist found a file containing newsworthy information left behind on a train. That information could not be regarded as confidential because the journalist does not owe any obligation of confidence to the owner. But the information was certainly private and if the journalist uses it he can be sued for misuse of that private information.


Breach of confidence

The test for ‘old-fashioned’ breach of confidence.

1. 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 protect trivia.


2. The information must have been imparted in circumstances imposing an obligation of confidence.

This is all about the nature of relationships. An obligation of confidence arises when information is obtained in circumstances where the person obtaining it realised that it was intended to be kept confidential. Obvious circumstances are when information is passed between doctor and patient, lawyer and client, priest and penitent and man and wife.


An obligation of confidence can also arise in the following situations

Employment Contracts
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.

Government employees
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.

The Media
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.


Misuse of private information

Unlike 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 that the 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:

a. The nature of the information – whether it is merely titillation or more serious matter.

b. The way in which it is displayed – the more lurid the coverage the more likely it will be restrained.

The 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?

This 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 receive and impart information and ideas."

The question the courts ask is a simple one: Was the information obviously private?

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 victim.

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 reader.

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 treatment.

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.
These are the rules:

1. 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.

2. 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:

a. 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.

The media’s right to freedom of expression is an important part of the injunction debate but the court must also consider ‘any relevant privacy code’.

This 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.

But public interest becomes less straightforward in privacy cases because here there are two ‘public interests’ in competition with each other.

1. Public interest in providing protection for confidential information.

2. Public interest in the public receiving the kind of information which is necessary for them to make choices as members of a democratic society.

So 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 interest”?

The House of Lords interpreted that as meaning that generally speaking “political speech” would be accorded greater value than gossip or “tittle-tattle”.

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