APPENDICES
(4) Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. (5) In deciding whether there is in principle an invasion of privacy, it is important to distinguish between the first question whether Article 8 is engaged, and the subsequent question whether, if it is, the individual's rights are nevertheless not infringed because of the combined effect of Articles 8(2) and 10.
¶3.37 It is self-evident that Articles 8 and 10 are of the utmost importance in the reasoning process
undertaken by the court; they are now "the very content of the domestic cause of action that the English court has to enforce".148
¶Elements of cause of action of misuse of private information 3.38 The two-stage test formulated in McKennitt v Ash149 per Buxton LJ frequently cited in the case law, is as follows:
(1) First, the court must ask whether the information is private in the sense that it is in principle protected by Article 8 and, if so, whether the person has a reasonable expectation of privacy in respect of the information. If the answer is no, that is the end of the case. (2) If yes, the second question is whether in all the circumstances, the Article 8 rights of the claimant must yield to the right to freedom of expression conferred on the defendant by Article 10.
¶3.39 In Hutcheson (formerly known as "KGM") v News Group Newspapers Ltd and others, the
¶Court of Appeal cited the well-established test applied at first instance:150
"First, it is necessary to demonstrate that he has a reasonable expectation of privacy in respect of the subject-matter in question, having regard to article 8 of the European Convention on Human Rights and Fundamental Freedoms. If that hurdle is overcome, it next has to be shown that there is no countervailing public interest sufficient to outweigh his right to protect that information. At the second stage, the court will apply what has been termed 'an intense focus' to the particular circumstances of the case, in order to arrive at a determination of where the balance lies between the competing rights concerned."
¶3.40 This summary encapsulates the test neatly.
¶3.41 The two stage approach is applied to both substantive actions (a trial of the claim) and interim
injunctions; although in the latter context the test must be considered in the light of the burden imposed on the claimant to satisfy the Court that there are sufficient prospects to justify an injunction in view of the test in section 12 of the HRA.
¶3.42 It is important to recognise that Article 8 is engaged irrespective of whether the private information sought to be published is true or false.151
1871¶Appendix 4 | Legal Materials
¶Stage 1 – Is there a reasonable expectation of privacy? 3.43 The key issue to be resolved by the court is whether the information sought to be protected
is of a private, as distinct from a public, nature and whether the claimant has a reasonable expectation of privacy in respect of that information.
¶3.44 The law does not protect unreasonable demands to keep information out of the public sphere
or 'hyper-sensitive' claimants and, for this reason, the question whether there is a reasonable expectation of privacy is an objective test considered in light of the circumstances of the claimant. Lord Hope in Campbell emphasised that the reasonable expectation was that of the person who is affected by the publicity:152
"The question is 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".
¶3.45 The Court of Appeal in Murray v Express Newspapers summarised the position as follows:153
"As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the 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 and 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."
¶3.46 The court does not address questions of privacy in terms of generalities. According to
the authorities set out above, the question must be whether this particular person has a reasonable expectation of privacy in respect of the particular information at issue.154
¶Factors which guide the Court's decision on the stage 1 analysis 3.47 There are a number of matters to which the Court is likely to have regard in determining
whether there is a reasonable expectation of privacy. These include, the following factors, which are not necessarily exhaustive:
(a) The nature of the information itself (namely its content) (b) The form of the information (namely the medium in which it is kept) (c) The effect of disclosure on the claimant (and other relevant individuals) (d) The attributes of the claimant (e) The circumstances in which the information came into the hands of the publisher (f) The extent to which information is already in the public domain
¶Nature of the information 3.48 The nature of the information itself is likely to be significant in determining whether there
1872is a reasonable expectation of privacy and there are certain types of information which the courts have readily been persuaded to describe as private information.