APPENDICES
the order; this is known as the 'Spycatcher principle'.135 Further, the test for the grant of an injunction in defamation cases is higher than for an interim injunction in breach of confidence claims and the courts will not allow parties to seek an interim injunction on the basis of a claim for breach of confidence where in reality what is sought to be protected is material that is said to be untrue and damaging to reputation.
¶3.28 The courts also have discretion to order the delivery up of and destruction of documents, articles or machinery obtained or made in breach of confidence.
¶3.29 Damages may be sought in addition to, or instead of an injunction and can be sought for
both past and future losses. There is some uncertainty as to the extent of damages that may be awarded for breach of personal confidence and doubt has been expressed as to whether shock and distress caused by the unauthorised disclosure of confidential information can properly be reflected in an award of damages, however given that the courts have recognised that damages can be awarded for injury to feelings in cases of misuse of private information it may be that a parallel approach will be taken in breach of confidence matters.136 An alternative remedy which may be sought by the claimant is an account of profits, namely depriving the defendant of the profits resulting from the misuse of confidential information and awarding these profits to the claimant.
Misuse of private information Establishment of cause of action
¶3.30 In A v B plc Lord Woolf CJ explained that the court, as a public authority, was able to fulfil
its duty under section 6 of the Human Rights Act 1998 Act "by absorbing the rights which Articles 8 and 10 protect into the long‐established action for breach of confidence".137
¶3.31 The leading domestic case remains the decision of the House of Lords in Campbell v MGN Ltd,
which recognised a cause of action for misuse of personal information.138 This claim is quite distinct from the claim of breach of confidence, with its foundations in Article 8 and 10 of the ECHR. Lord Nicholls observed that:139
"The time has come to recognise that the values enshrined in Articles 8 and 10 are now part of the cause of action for breach of confidence … and are as much applicable in disputes between individuals or between an individual and a non‐governmental body such as a newspaper as they are in disputes between individuals and a public authority".
¶3.32 On the basis that information about an individual's private life is more naturally described as
private than confidential, Lord Nicholls said that "the essence of the tort is better encapsulated now as misuse of private information".140
¶3.33 The elements of the cause of action were defined in the following way by the House of
¶Lords:141
1869¶Appendix 4 | Legal Materials
(1) The information at issue engages Article 8 of the Convention by being within the scope of the claimant's private or family life, home or correspondence; and (2) The conduct or threatened conduct of the defendant is such that, upon analysis of the proportionality of interfering with the competing rights under Article 10, it is determined that the protection of the rights of others makes it necessary for freedom of expression to give way.
¶3.34 The threshold test for whether Article 8 is engaged by the publication, or threatened
publication, of information in any given case is "whether in respect of the disclosed fact the person in question had a reasonable expectation of privacy".142 Lord Hope defined the question as "whether the information that was disclosed was private and not public", noting that:143
"in some cases … the answer to the question whether the information is public or private will be obvious. Where it is not, the broad test is whether disclosure of the information about the individual ("A") would give substantial offence to A, assuming that A was placed in similar circumstances and was a person of ordinary sensibilities".
¶3.35 The court will then proceed to determine whether the interference is proportionate. Where
both Articles 8 and 10 are engaged, a balance must be struck, or the competing requirements of the Articles reconciled, by the application of the principle of proportionality.144 This requires a focused and penetrating consideration of the proposed interference with the Article 8 right if publication occurs without remedy, and the value and proposed interference with the Article 10 right if a remedy is granted. There are different degrees of privacy, just as there are different orders of expression ranging in importance from political expression through educational or artistic expression to commercial expression.145 The key issue is the weight to be given to each of the rights at stake in any particular case. As Lady Hale put it, the proportionality of interfering with one right has to be balanced against the proportionality of restricting the other.146
¶3.36 The Court of Appeal in Murray v Express Newspapers summarised the principles set out in
¶Campbell in the following way:147
1870(1) The right to freedom of expression enshrined in Article 10 of the Convention and the right to respect for a person's privacy enshrined in Article 8 are vitally important rights. Both lie at the heart of liberty in a modern state and neither has precedence over the other. (2) Although the origin of the cause of action relied upon is breach of confidence, since information about an individual's private life would not, in ordinary usage, be called confidential, the more natural description of the position today is that such information is private and the essence of the tort is better encapsulated now as misuse of private information. (3) The values enshrined in Articles 8 and 10 are now part of the cause of action and should be treated as of general application and as being as much applicable to disputes between individuals as to disputes between individuals and a public authority.