how can privacy be defined?
- Warren & Brandeis (1819) “the right to be let alone”
what were the three requirements for a breach of confidence in Coco v AN Clark
- The information must have the ‘necessary quality of confidence about it’
- The information must have been ‘imparted in circumstances importing an obligation of confidence’
- There must be unauthorised use of the information to C’s detriment
does the breach of confidence extend to third parties who the confident discloses the information
- yes
- F Gurry, Breach of Confidence
how does Stephens v Avery extend BoC
- it now includes personal infomation
- No need for prior relationship
what is the principle laid out in Spycatcher
- A duty of confidence could arise where there is ‘an obviously confidential document’
what case introduce the doctrine of Misuse of private information?
- Campbell v MGN Ltd
where does a duty of confidence arise in Campbell
- “duty of confidence” whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential’
what is the test in Campbell that can trigger a claim?
- whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy
what rights are in conflict with each other in Campbell
- article 8 - private life
- article 10 - freedom of expression
what is the campbell methodology
1) Reasonable expectation of privacy – burden of proof is on the claimant
2) Balance between C’s privacy and D’s rights/interests (usually freedom of expression), including any public interest in receiving the information - courts remain neutral
how is a “Reasonable expectation of privacy” asessed?
- if the document is obviously confidential (spycatcher)
- Lord Hope: “what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.”
what amounts to public interest?
- mundane everyday activity is not private but going to a drug meeting is not an everyday activity and deserves protection
why was there a violation of art. 8 in Von Hannover v Germany (No.1) (2004)
- Princess Caroline has a ‘reasonable expectation of privacy’ even in public and when going about everyday business.
- It is not entirely clear from the judgment in Von Hannover whether the violation arose due to the taking of the pictures (intrusion) or their publication (MPI)
what factors need to be taken into account when evaluating the circumstances of the case in Murray v Express Newspapers? (6)
- attributes of the claimant
- the nature of the activity in which the claimant was engaged
- the place at which it was happening
- the nature and purpose of the intrusion
- the absence of consent
- whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.
what does Murray v Express Newspaper concern
- third party claimants (if children of famous parents have claim for reasonable expectation of privacy)
what were the two tests that emerged for determining whether C has a “reasonable expectation of privacy” in Murray v Express Newspaper
A) the “obviously private” test (nature of the information)
B) an holistic test (consideration of all relevant circumstances)
- Where A is not satisfied, the court will proceed to B.
what case states that a claim in MPI will lie only where C has a REP in respect of information about themselves, not someone else?
- O v A
what is An emerging “balancing” method in Re S? (4)
1) ‘Neither article has as such precedence over the other.’
2) ‘Where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary.’
3) ‘The justifications for interfering with or restricting each right must be taken into account.’
4) ‘The proportionality test must be applied to each.’
what is the considerations in Von Hannover v Germany (No 2) when establishing a balance between art. 8 and 10? (6)
1) Contribution to a debate of general interest – is it gossip or is it genuine public interest
2) How well known is the person concerned and what is the subject of the report? – attributes of the claimant
3) Prior conduct of the person concerned
4) Method of obtaining the information and its veracity/circumstances in which the photographs were taken – did the person know, or is it a public event where paparazzi be expected to be there
5) Content, form and consequences of the publication
6) Severity of the sanction imposed by domestic courts – margin of appreciation doctrine. Courts have discretion on the sanctions
what did Reklos & Davourlis v Greece about violation of privacy
- there was a Violation of privacy even though no publication (though possibility of later publication recognised) – just taking the photo is a violation of art 8
- Art.8 has no age limit
what is stated about public figures when considered the class of claimants?
- The argument that “public figures” automatically enjoy reduced privacy because there is an inherent public interest in what they do.
what is stated about Role models when considered the class of claimants + case?
- The argument that certain individuals who are “role models” must accept a greater degree of scrutiny and intrusion into their private lives
- NB the courts often conflate the public figure/role model rationales
- A v B
what is stated about Waiver of privacy when considered the class of claimants + case?
- The argument that certain individuals, by reason of having spoken about private issues publically in the past, have “waived” their privacy in respect of other information about themselves.
- How much effort has been made to protect ones privacy
- Duchess of Sussex v Associated Newspapers
what did Spelman state about sport?
- There is no, or at best a low, expectation of privacy if an issue of health relates to the ability of the person to participate in the very public activity of national and international sport.”
