Privacy

Question 1

What is the difference between breach and misuse?

Answer 1

Breach of confidence is about confidential information.

Misuse of private information is about private information.

Question 2

What is a breach of confidence?

Answer 2

When a person disclose’s sensitive information without the owner’s consent.

Question 3

What is the test for breach of confidence?

Answer 3

1) Does the information have the “necessary quality of confidence”?

2) Was it imparted in circumstances importing an obligation of confidence?

3) Is there an unauthorised use, or threatened use, of the information?

4) Has the obligation of confidence already been limited?
a) Is it already in public domain?
b) Is it too trivial to be protected?
c) Is disclosure justified by public interest?

Question 4

When is there a breach?

Answer 4

In Faccenda Chicken v Fowler court said it depends according to:

1. The nature of the employment
2. The nature of the information itself
3. Whether the holder impressed on the discloser the confidentiality of the information
4. Whether the relevant information can be easily isolated from other information which they were free to use or disclose

Question 5

Coco v AN Clark 1968

Answer 5

Establishes the test for breach of confidence

Question 6

What is misuse of private information?

Answer 6

When private information about an individual is disclosed without justification, causing distress, reputational harm, or financial loss.

Question 7

What is the test for misuse of private information?

Answer 7

1) Did P have a reasonable expectation of privacy regarding the information?

2) Is D’s right of freedom of expression outweighed by P’s right to privacy?

Question 8

When is there a reasonable expectation of privacy?

Answer 8

Objective test, what would a reasonable person of ordinary sensibilities feel if they were in the same position as P, facing the same publicity?
(Campbell v MGN 2004)

Question 9

Von Hannover v Germany 2006

Answer 9

Confirmed even public figures have a reasonable expectation of privacy.

Question 10

Murray v Express Newspapers 2009

Answer 10

Child of celebrity still had a reasonable expectation of privacy that could outweigh the media’s freedom of expression, even when in a public place.

The courts must take into account “all of the circumstances of the case” including:
- The pursuer’s attributes;
- nature of activity;
- location, nature and purpose of intrusion;
- absence of consent;
- effect on the pursuer; and
- the purposes for which information came into D’s hands

Question 11

Richard v BBC 2018

Answer 11

Suspect had a reasonable expectation of privacy in relation to a police investigation, which was not removed merely because the information had reached the media.

BBC’s public interest defence rejected.

Question 12

What remedies are available?

Answer 12

• Damages
• Interim interdict
• Superinjuction

Question 13

General principles on if there is a reasonable expectation

Answer 13

Private medical or financial details usually meet the privacy threshold. So do sexual stuff, especially in detail.

Photographs trigger more easily than text.

Truth is irrelevant; even false intimate information can intrude on privacy.