APPENDICES
v MGN Ltd in which the House recognised a new cause of action, namely misuse of private information, as distinct from breach of confidence.111
¶3.6 This cause of action is now the closest thing to a free-standing right to protection from
invasion of privacy in English law. The core element of privacy in this context is whether the person in question had a reasonable expectation of privacy in respect of the information and whether interference with that expectation is justified. The law after Campbell therefore recognised two distinct causes of action, protecting two different interests: privacy (misuse of private information) and secrecy (breach of confidence).112
¶3.7 The cause of action recognised in Campbell is the product of three features of the law. Firstly,
the rights enshrined in Articles 8 and 10 of the Convention are incorporated into domestic law and individuals have a right to bring a claim for infringements of these rights. Secondly, the State is obliged to protect an individual from unjustified invasion of their private life by another individual.113 Thirdly, the Courts are subject to a duty to avoid acting incompatibly with Convention Rights, and so must, in determining claims, give effect to Convention rights.114 It is unsurprising, given these features, that the law relating to misuse of private information requires a rights-based analysis and that the jurisprudence of the ECtHR has shaped domestic law in this area.115
¶3.8 Since the landmark decision in Campbell, the law relating to misuse of private information has
evolved on a case by case basis, both through the decisions of the ECtHR in this area which are absorbed into domestic law, and through the body of domestic case law that has built up over the years as the Courts deal with interim applications seeking to restrain publication of material and the smaller number of final hearings, or trials of alleged misuse of private information. The Court of Appeal has recently described the law in this field as "well travelled (if fast moving)" and the principles applicable are considered in detail below.116
¶3.9 A significant proportion of claims brought to restrain publication on the basis that the
proposed publication unjustifiably interferes with an individual's privacy involve a claim for misuse of private information. However, the legal framework which has the potential to protect privacy interests is broader and it is through a combination of the common law of misuse of private information and breach of confidence, and actions based on the PHA and DPA, that the law has established a comprehensive framework for the protection of privacy rights. The framework is overlapping in some respects, and it is not unusual for cases to pursued based on more than one cause of action.117
¶Human Rights Act 1998 3.10 The HRA has had a significant impact on the development of the law to protect privacy in
1865two material respects. Firstly, s6 of the HRA requires the courts (as a public authority) to act compatibly with Convention rights. In this context the key Convention rights are Article
¶Appendix 4 | Legal Materials
8 (respect for private life) and Article 10 (freedom of expression and the right of the general public to receive information). Secondly, by s2(1) a court is also required to take into account judgments of the European Court of Human Rights, and by virtue of this provision the ECtHR's case law has informed the development of domestic law. For this reason it is necessary to dwell briefly on the scope of Articles 8 and 10 in this context.
¶3.11 Article 8 provides as follows:
"Article 8: Right to Respect for Private and Family Life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
¶3.12 The scope of Article 8 and the meaning of "private and family life" has been analysed
extensively in case law. The ECtHR has stated that private life is a broad term not susceptible to exhaustive definition, but includes elements such as gender identification, name and sexual orientation, sexual life, mental health, the right to identity and personal development and to establish and develop relationships: Bensaid v United Kingdom.118
¶3.13 The House of Lords in R (Countryside Alliance) v A-G addressed the scope of private life within
the meaning of Article 8. Baroness Hale observed that Article 8 protects a "private space" and the "personal and psychological space within which each individual develops his or her own sense of self and relationship with other people".119
¶3.14 However, it is now well established that protection of reputation is a right which is covered by the right to respect for private life under Article 8.120 3.15 Article 8 does not confer an absolute right to privacy: Article 8(1) provides for a right to
"respect" for privacy and therefore is inherently qualified. The right is further qualified by Article 8(2). The purposes of the qualifications are to ensure that the core of Article 8 is not read so widely that its claims became unreal and unreasonable.121 Safeguards against a overly broad reading of Article 8 include the parameters that the threat to a person's Article 8 rights must attain a certain level of seriousness, that absent an expectation of privacy there will be no interference with personal autonomy and that the breadth of Article 8(1) may be curtailed by the scope of the justifications in Article 8(2): see Laws LJ in R (Wood) v Commissioner of Police for the Metropolis.122
¶3.16 It is clear that the words "the right to respect for ... private ... life" which appear in Article 8
1866require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction.123 Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations between individuals.124