Privacy in English Law

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Kaye v Robertson 1991
Expressed the lack of protection of privacy in English law.

Press pretended to be doctors, released images of Robertson recovering in hospital.

If any situation deserve privacy, it is when in hospital recovering with a brain injury. - Bingham.

English law 'does not entitled him to relief'.
IPSO/IMPRESS
Also no protection from self regulation bodies.

Not all papers signed up to system.
Can only get apologies, no compensation or injunctions.
Breach of confidence
Offers come protection for private information.
Albert v Strange
Provides the basis for the Breach of Confidence.

Found that claimant had property rights over etchings.
Defendant selling these etchings was an abuse of the property right, it breached the claimants confidence.
Coco v Clarke 1968
Developed test for the breach on confidence.

1. Information has a quality of confidence.
2. There is an obligation on the individual to keep them confident.
3. Unauthorised use of information.

From Albert, defendant was contracted to produce etchings, not sell them. Meant there was an obligation of confidence.
AG v Guardian 1988
Expanded the test for breach of confidence.
Issue that there had to be a relationship of confidence. (Kaye)

Ought to have known of confidence would suffice.
HRA 1998 S6
English law to be read in accordance with treaty.
Article 8 - Right to private life must be protected.
Aplin
Breach of confidence too narrow. Needs to be some kind of relationship, must be confidential.

'HRA had far reaching consequences for the breach of confidence'
Campbell v Mirror Group 2004
First chance for judges to consider breach of confidence with HRA in mind.

Developed at two part test.

1. Information must have reasonable expectation of privacy.
2. Does expectation of privacy outweigh freedom of expression?
Lord Nicholls in Douglas
Recognised this is a separate tort.

Misuse of private information to be used when personal information in question.

Does this protect privacy?
Murray v Express
Pictures of children found to be private.

'Attribution to claimant, nature of activity, place of it happening, consent'.
McKennit v Ash
Details of sexual activity and addiction held to be private.
RockNRoll v NGN
Pictures posted without consent, private.
Elton John v Associated Papers
Most have some element of privacy, cannot just request privacy.
Van Hannover v Germany
Public must have genuine and real interest in information.
Mckennit v Ash
Facts must offer something to democratic discussion, but of some use. Not merely details of private life.
Mosesly v News Group
Was Nazi orgy public interest?

Could not find evidence of Nazi theme, this may have been public interest.

Sexual activity in private space was not public interest.
Aplin
Believed 2 key expansions of breach of confidence meant privacy was provided 'fuller protection of privacy'.

- Confidential to private. Meant that something could be in the public domain, but still be private.
DOUGLAS - Picture were already going to be published, cannot said to be confidential. However they were still private, couple had right to choose who took photo's at their wedding.

-No relationship of confidence needed.
'Campbell shaken off the need for relationship if obviously private' DOUGLAS.
Any private info shared is illegal, useful in situations such as Kaye.
Markensis v Deakin
Tort of privacy exists all but in name.
Lord Hoffman
English law does not need privacy.
Schreiber and Mullheron
Claimed that confidence was based on completely different principles to privacy.
Centred on relationship.
AG v Guardian and Campbell develops this to cover privacy more broadly.
However this can be seen to 'distort confidence, diluting the principles.'
Schreiber
Claimed that the new test of private was very unclear.
Reasonable expectation? Obvious? Objective?

'Great uncertainty enough to legislate'
Schreiber and Wainwright
Confidence and misuse of information both concerned with information.
This makes in insufficient protection of privacy.
Privacy should protect inviolate personality, as in American.
English law cannot protect this, must be some form of information disclosed.
Schreiber and Peck
Not adequate protection of Article 8.
Peck not allowed to claim because information was taken in public space, cannot be said to have be private.
However ECtHR ruled that this breached the right to private life.
English law seen as insufficient.
Conclusion
Initial law offered little course of action for privacy.
HRA and subsequent cases offered broader scope.
Protection of privacy has damage confidence.
Remaining issues with misuse of information.
New law would solve both issues.
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