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Misuse of Private Information: The Failure to Protect the Right to Privacy

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About The Author

Connor Griffith (Joint Editor-in-Chief)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He recently completed the LPC and is waiting to begin his training contract with a large national firm. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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I don't want to live in a world where there's no privacy and therefore no room for intellectual exploration and creativity.

Edward Snowden

The concept of protection for privacy is hardly a new one: Lord Coke stated in Semayne’s Case [1603] that one’s house is ‘to him as … for his … repose’. However, the traditional position in the United Kingdom has always been that there is no general right to privacy. Though developments through the tort of misuse of private information have shown consideration by the courts for such protection, Parliament has demonstrated that it is not as concerned with privacy rights for individuals as it perhaps should be. This indifference has been most recently demonstrated through the enactment of the Investigatory Powers Act 2016, which grants a long list of governmental bodies the ability to investigate the online browsing records of every UK citizen, permitting, as stated by Edward Snowden, the ‘most extreme surveillance in the history of western democracy’.

It, therefore, seems that it is up to the courts to protect privacy rights. However, the remedies for infringements of the tort of misuse of private information have proven to be completely inadequate, to the point that it is questioned whether ‘victorious’ claimants can really be considered to have won anything at all. There must be a change in what is awarded to those that fall victim to the improper use of private information, now more so than ever following Parliament’s evident disregard for the matter. This article will consider the current remedies available to privacy victims and offer proposals for improvements in the hope of bringing more attention to the desperate need for greater protection.

Misuse of Private Information

Prior to 1998, any actions by claimants in relation to privacy that did not fall under a limited number of statutes (such as the Data Protection Act 1998) were instead, as noted in Douglas v Hello! Ltd [2003], unsatisfactorily ‘shoe-horn[ed]’ into one of a number of pre-existing causes of action, most commonly the equitable action for breach of confidence, which prevented the leaking of trade secrets told in confidence.

However, development of this area of law was ‘spurred’ through the enactment of the Human Rights Act 1998, Section 6(1) of which requires that courts do not act in a way that is ‘incompatible’ with the European Convention on Human Rights. Of particular importance here are Article 8 and Article 10 of the Convention, which provide the right to respect for private and family life and the right to freedom of expression, respectively.

Subsequent balancing by the UK courts of these two competing Article rights resulted in the creation of the tort of misuse of private information, for which a two-stage test must be satisfied in order to find an infringement of the claimant’s right to private life:

  • Did the claimant have a reasonable expectation of privacy?
  • If so, was the claimant’s Article 8 right outweighed by the defendant’s Article 10 right due to sufficient public interest?

Admittedly, the courts have often found on the side of the claimants, showing sympathy to those (most commonly, celebrities) that have had their privacy infringed through the disproportionate publication by the media of photographs and/or details of their private lives. Examples of such publications include the exposure of drug addictions and extra-marital affairs, changing forever the lives of those that fall victim to the reports.

This alleged favouritism towards privacy has led to criticism of the judges by the media, including claims that some judges provide ‘arrogant and amoral’ judgments. However, the inadequacy of the remedies (namely, damages and injunctions) for infringements of the tort has the effect that there may as well not be any protection in the first place, diminishing the impact of any favouritism shown by the courts.

Unsatisfactory Remedies

Damages

It is common knowledge that the role of damages in tort is to return the harmed person to the position that they would have been in had the tortious action never taken place. However, as correctly identified in the case of Mosley v NGN [2008], this is quite impossible in privacy cases: as Eady J noted, ‘[o]nce the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain’ by awarding damages.

This is quite correct: once the information is leaked, it cannot be un-leaked, even with the assistance of injunctions (the failings of which will be discussed below). It is thus arguable that no amount of money can possibly return the claimant to a point where the private information was not known to the public. The impact of the release of such information may never truly leave the victim, so it is of the utmost importance that the damage is never suffered in the first place.

It is submitted that the only way to give damages any impact and use in relation to infringement of privacy rights would be to change the perspective that they are given through the introduction of exemplary damages (further damages on top of those ordinarily awarded, designed specifically to punish the defendant for their conduct).

Such damages would not necessarily have to be awarded to the claimant (this would be disproportionate, in the sense that it would be placing them in a more favourable position than the one that they were in prior to the tortious action) but could instead either be added to a charity of the claimant’s choosing or to a court fund in order to provide legal aid to others. In this respect, the exemplary damages would act as a deterrent against defendants, ideally limiting the temptation to commit objectively egregious breaches of privacy. This would further tackle the issue that many large media outlets will make far more money from selling the offending story than they would have to pay in court for its publication (for which there would be no incentive for the tortious action to cease), limiting undeserved profits made by the defendants.

However, implementation of exemplary damages to date has not been successful: Eady J in Mosley refused to grant them, stating that to do so was unnecessary and disproportionate, though Lord Toulson in PJS v NGM [2016] stated that this should not be the final word on the matter, opening up the possibility for the awarding of exemplary damages in the future.

Injunctions

The other main remedy available is an injunction, which prevents any publication, either initial or further, of the protected information and permits the removal of any instances where the information has already been published. Injunctions can either be interim (awarded prior to trial, at which point it will be decided whether the injunction should be continued or removed) or final (a permanent injunction, as seen in PJS).

However, the imposition and success of injunctions are controversial both in relation to pre-publication requirements and where the information has already been published.

Pre-Publication Notification

Injunctions can be an effective tool to prevent information that is not yet published from ever becoming published. However, the practice of journalists forewarning the subjects of their articles about their intentions for publication seems to be waning, particularly in relation to the growth of what Lady Hale in Jameel v Wall Street Journal Europe [2006] referred to as ‘vapid tittle-tattle’ (celebrity gossip). This has had the result of certain newspapers, such as The Mirror and The News of the World, adopting an ‘act now, apologise later’ strategy to journalism, demonstrating complete apathy towards any consequences suffered as a result.

This is heavily criticised as injunctions are arguably only truly effective where the information is never leaked in the first place. Following on from his case against News Group Newspapers, Max Mosley, the previous President of the FIA and victim of the publication of secretly recorded footage of his orgy with five escorts, took his claim to the European Court of Human Rights (see Mosley v UK [2011]). He claimed that the UK had failed to protect his Article 8 right by not requiring the media to notify the subjects of their articles prior to publication so as to allow the subject a chance to seek an interim injunction in order to determine whether publication was justified in the public interest. This argument was rejected, however, for a multitude of reasons, including the undesirable chilling effect that such requirements would have on journalists (who are unlikely to spend time and effort on an article that will just be blocked) and the negative impact the requirements would have on the value of information that requires urgent publication (as waiting for a court to determine its suitability could take a while, by which time the information may have lost all value).

Lord Neuberger, in his lecture at the UK Association of Jewish Lawyers and Jurists, made the further argument that such pre-notification requirements are simply unrealistic, particularly following the dramatic growth of social media. Such changes have resulted in the creation of what can be described as ‘social journalists’ (people that post status updates on platforms such as Facebook and Twitter, discussing recent events). To expect such persons to seek permission from a court before posting a status update would be absurd, but to allow such status updates while still preventing publication by the larger media would undermine the entire premise of the prior notification requirement.

Perhaps the most appropriate remedy for this problem, balancing the rights of the media in releasing information in a timely and fair manner and the rights of individuals not to have their private information unreasonably published, would require the creation of some sort of specialist statutory body (like OFCOM) to which the media can apply for swift responses as to whether their article is reasonable (so as to avoid the delays accompanied with judicial action).

Aside from this, in response to the growth of social journalism, it is submitted that social media outlets such as Facebook should be required to remind its users that any information that they share online can have repercussions, ensuring that users understand that, though they are entitled to freedom of speech, this right does not entail a freedom from consequences for that speech.

Where the Information is Already in the Public Domain

A common debate centres on whether there is any point in upholding an injunction where the information that it aims to protect is already released.

This can be seen in the facts of PJS, in which the Supreme Court prevented the publication of the details of a three-way sexual relationship between PJS, a famous entertainer, and two others. Such prevention was on the grounds of protecting the identity of PJS (hence the pseudonym) despite the fact that one could easily discover his identity with a simple search on the internet.

Lord Neuberger, in his aforementioned speech, gave two key examples of the failures of such injunctions. Firstly, as a matter of the rule of law, anyone that shared the information protected by the injunction, even if it was just to a friend on a private messaging service, would technically be infringing the injunction. With the growth of social media, this could potentially result in thousands, if not millions, of separate infringements, heavily undermining the injunction placed as a whole.

Secondly, the pseudonym that is given to the claimants in such cases only hides the name of the party, not the events of the act. This has occasionally had the effect of causing incorrect assumptions of the identities of the parties of a case (for example, presenter Vernon Kay was incorrectly asserted by some to be the claimant in PJS), giving rise to concerns regarding damage to individuals’ reputations on the basis of false rumours.

Despite the criticisms given above, it is submitted that injunctions should not be removed simply because the information is available online. As well as the fact that a share on Facebook will (presumably) have much less impact than publication of the story by a major newspaper, to remove the injunction simply because the information was leaked by someone outside of the UK would create a roadmap for how to bypass injunctions (i.e. ask a foreign friend to post the information online). For this reason, solidarity must be given to the enforcement of injunctions, ensuring that they are not viewed as completely undermined due to the leaking of the information elsewhere as they can still be very much effective within the jurisdiction in which they are enforced (take, for example, the claimant in PJS: though his identity is known by those that search for it, this number is much smaller than it would have been if the injunction were removed).

Conclusion

Parliament has been notoriously silent, unwilling to protect the privacy rights of individuals, opting instead to promote surveillance of individuals. It, therefore, seems to be up to the courts to act, as a Joint Committee Report on Privacy and Injunctions stated, as the ‘defenders of privacy’.

It is hoped, however, that given the new focus on the right to privacy of individuals following the enactment of the controversial Investigatory Powers Act 2016, further attention will be given to this area of law, spurring suggestions and comments from academics and judges alike and resulting in a more appropriate scheme for remedies.

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Tagged: Courts, European Union, Human Rights, Justice, Media, Privacy Law, Technology, Tort Law

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