1. Privacy
Unit 8

2. There is no general right to privacy in English law
A general right to privacy is recognised under neither statute nor common law.
Kaye v Robertson & Sport Newspapers Ltd [1991]
A tabloid journalist managed to gain access to the hospital room of Kaye, a TV actor who had suffered a serious brain injury and was semi-conscious
Kaye sought an injunction to prevent the newspaper from publishing the resulting “interview” and photographs, but there were no legal grounds for his claim
A general right to privacy is recognised under neither statute nor common law. (ni…ni…)
As a result in the past, individuals were often powerless to prevent unwarranted (= unjustified) invasions of privacy, for example in the case
Kaye v Robertson & Sport Newspapers Ltd [1991]
A tabloid journalist managed to gain access to the hospital room of Kaye, a TV actor who had suffered a serious brain injury and was only semi-conscious
Kaye sought an injunction to prevent the newspaper from publishing the resulting “interview” and photographs, but there were no legal grounds for his claim

3. Historically the only way to bring a privacy claim was to allege “breach of confidence”
A breach of confidence: the unauthorised misuse of private information
The information communicated must have the necessary “quality of confidence’.
The circumstances surrounding the communication must create an obligation of confidence (=duty of confidence)
A party gains information which it knows (or ought to know) is confidential
There must be an ‘unauthorised use of the information to the detriment of the party communicating it’.
2. What does the right to confidence protect against?
The misuse of one’s private information by others (to misuse something = mésuser, a misuse of something)
. (=the traditional way of protecting privacy rights in English law, established under the common law = by judges)
A breach of confidence then is defined as The unauthorised misuse of “private information” – can be photographs, documents, letters, or other information
Example from the text? (Prince Albert private drawings of the of royal family) > everyone has the right to control their private infirmation
3. What three criteria must be satisfied for a claimant to succeed in claim for breach of confidence?
Must be private information
Traditionally there had to be a contract or a relationship of trust (=confiance) between the parties – (e.g. doctor and patient, lawyer and client, employer and employee, marriage) to create the obligation of confidence.
However today a pre-existing relationship not required > A party gains information and knows (or ought to know) that it is confidential
3. 3.There must be an ‘unauthorised use of the information to the detriment of the party communicating it’.
Detriment as a result of / due to unauthorised use= an injury (damage to reputation, business, career or simply the embarrassment (=gene) caused by having private info made public)

4. Douglas v Hello! Ltd
Hollywood stars Michael Douglas and Catherine Zeta-Jones had a £1 million deal to sell selected wedding photos to OK! magazine
Despite high security, which included prohibiting guests from bringing cameras, someone at the wedding took photos which were then sold and published by Hello! magazine
The High Court found that Hello! should have realised that an obligation of confidence existed in relation to the photos.
An example of the idee of obligation of confidence can be seen in the case Douglas v Hello magazine
Hollywood stars Michael Douglas and Catherine Zeta-Jones had a £1 million deal to sell selected wedding photos to OK! Magazine > part of the deal was that they would final say over which photos were used
Despite high security, which included prohibiting guests from bringing cameras, someone at the wedding took photos which were then sold and published by Hello! magazine
The High Court found that Hello! should have realised that an obligation of confidence existed in relation to the photos. > found that there has been a breach of confidence

5. Defences to a “breach of confidence” claim
The information is:
already in the public domain
useless or trivial
in the public interest
4. When will confidence not be protected?
It is in the public domain = it is already generally available to the public > as we will see in the text this raises interesting questions in the age of a global internet
It is useless or trivial (=what Taylor Swift eats for breakfast) : unimportant
It is in the public interest –what does that mean? It contributed to a legitimate public debate - NOT the same as interesting to the public (one judge said not “tittle tattle”(uncountable) = les potins)

6. Article 8 of the ECHR
The Human Rights Act (1998) enacted the provisions of the ECHR in English law
Article 8: Right to respect for private and family life
Everyone has the right to respect for his private and family life, his home and his correspondence.
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
The Human Rights Act (1998) enacted the provisions of the ECHR in English law
Article 8: Right to respect for private and family life
Everyone has the right to respect for his private and family life, his home and his correspondence.
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
5. When may public authorities infringe on the Article 8 right to respect for "private life"?
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.

7. Article 8 of the ECHR Two effects:
Individuals can now enforce the right to respect for private and family life against public authorities
In claims where the defendant is not a public authority
after 1998, courts had to take into account Article 8 when deciding breach of confidence claims
Gradually this led to the emergence of a new tort of misuse of private information
Two effects:
Individuals can now enforce the right to respect for private and family life against public authorities > if the gov or another public authority infringes right, the victim can bring legal action
But also had an effect on how courts dealt with claims between individuals. Since courts are public authorities, since 19998, when dealing with breach of confidence claims, courts had to take into account Article 8 when deciding breach of confidence claims
Gradually this led to the emergence of a new tort of misuse of private information

8. Misuse of private information
The claimant must have “a reasonable expectation of privacy” with regard to the information.
Obviouisly private
Would cause offence to a person of ordinary sensibilities
The
Two effects:
Individuals can now enforce the right to respect for private and family life against public authorities > if the gov or another public authority infringes right, the victim can bring legal action
But also had an effect on how courts dealt with claims between individuals. Since courts are public authorities, since 19998, when dealing with breach of confidence claims, courts had to take into account Article 8 when deciding breach of confidence claims
Gradually this led to the emergence of a new tort of misuse of private information