Questions and Answers about Privacy and Breach of Confidence Cases

 

Q1 What is an invasion of privacy?

Unjustified disclosure of private and non-trivial information about an individual (including images), which causes distress to the individual. Recent cases have acknowledged that all persons, including public figures and celebrities have a reasonable expectation of privacy. Although this claim developed from the law of confidence, it is now substantially different from the traditional breach of confidence claim.

Q2 What is a breach of confidentiality?

Breach of an express term of a signed confidentiality agreement;
or
Breach of a duty of confidentiality which will arise when the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected.

Commercial confidences differ to personal private information, as Article 8 ECHR, the right to respect for private and family life, home and correspondence is not engaged in relation to disclosure of commercial confidences. Where commercial confidences are concerned the more traditional approach (set out in Coco v A N Clarke) is applied:

1. Does the information have the necessary quality of confidence about it?
   
   
2. Has the information been imparted in circumstances importing an obligation of confidence? and
   
   
3. Has there been unauthorised use of that information to the detriment of the party communicating it?

Q3 Is the truth or falsity of the private information disclosed relevant?

In a personal privacy action the truth or falsity of the information disclosed is not relevant, although the truth or falsity of the material published may become relevant if the court needs to investigate the facts where a defence of public interest is raised.

In relation to commercial confidences the Court of Appeal has said there is no confidence in false information. However it has been argued that where part of the confidential information is true and part of it is false protection may extend to the false parts of the commercial information.

Q4 Within what time period must proceedings be commenced?

A claim for breach of privacy must be brought within 6 years of the private information being published.

The limitation period for bringing a claim for breach of the confidence claim and/or for breach of contractual confidentiality clause is 6 years from the date of the breach.

Q5 Who can sue?

Only individuals can sue for breach of privacy, but all legal entities, including companies, institutions, and Governmental bodies can sue for breach of commercial confidence.

Q6 What must a person or company prove in a privacy action?

When an individual or company brings a privacy action, they must show that information of a private and non-trivial nature has been published and that there is a reasonable expectation of privacy in relation to such information. Traditionally a reasonable expectation of privacy normally only arose generally in situations where there was physical privacy such as within the home or in a doctor's consulting room. It is now clear that a reasonable expectation of privacy may arise in a public context such as in a public park, on a beach or in a supermarket.

Particular categories of information that are regarded as personal private information include:

1. Details of intimate conversations or revelations;
   
   
2. Matters of personal identity including photographs;
   
   
3. Matters of physical and psychological integrity, i.e. interaction with others, even in a public context, may fall within the scope of private life;
   
   
4. Details of an individual's emotional reactions to bereavement or to illness;
   
   
5. Details relating to an individual's home, including physical descriptions of the buildings and contents as well as conversations, communications or disagreements taking place in the home environment. (This does not extend to cover criminal acts.);
   
   
6. Intimate details about an individual's state of health;
   
   
7. Information about private disputes and negotiations.

Q7 What is the prime remedy for a breach of privacy claim?

An injunction is the main remedy because once private information has been published to a large extent the information is no longer private. It is important to consider and react quickly when given notice of a threatened publication of private information.

Q8 What do you have to prove to get an interim injunction?

The court will grant an interim injunction to restrain publication before trial if it is satisfied that the claimant is more likely than not to establish at trial that publication should not be allowed. Where the potential adverse effects of publication of private information are particularly grave or where a short-lived injunction is necessary to enable the court to hear an interim application, a lesser degree of likelihood will suffice.

An application for an injunction based upon personal private information or breach of confidentiality requires a balancing exercise to be undertaken between Article 8 ECHR and Article 10 ECHR, freedom of expression. The factors to bear in mind are:

1. Neither article has precedence over the other;
   
   
2. Where the conflict arises between values under Articles 8 and 10 ECHR an "intense focus" is necessary upon the comparative importance of the specific rights being claimed in the individual case;
   
   
3. The court must take into account the justifications for interfering with or restricting each right;
   
   
4. The proportionality test must be applied to each right.

Q9 Must the private material refer solely to the claimant?

Protection will not automatically be lost due to the involvement of third parties but it depends on the circumstances as disclosure of private information to more than one third party by the claimant may suggest that the information is not sufficiently intimate to warrant protection. If a person wishes to reveal publicly information about aspects of his/her relations with other people, which would attract the prima facie protection of privacy rights, any such revelation should be formulated, so far as possible, to protect the other person's privacy. Claims can be made in relation to intimate photographs taken without the claimant necessarily being identified or named.

Q10 Are photographs treated differently from other private information?

Yes. Photographs frequently convey more than words and are considered to be particularly intrusive. Photographs of people in public places such as public parks beaches and supermarkets, or photographs of individuals involved in sexual activity with prostitutes have been held to be invasions of privacy even though the written information concerning such activities may not be considered sufficiently intrusive.

Q11 Who can be sued?

Individuals and companies who publish, or cause to be published, private information.

Q12 Can the claim in privacy be defended?

The main defences available to a defendant in a privacy/breach of duty of confidence action are:

1. That the information or images are not private in themselves;
   
   
2. That the information although private is so inconsequential or anodyne;
   
   
3. That the information is already in the public domain;
   The test to be applied is whether the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential. In the case of personal private information (as opposed to commercial secrets) it is not assumed that protection has gone forever by virtue of its having come to the attention of certain readers or categories of readers. However, in such circumstances protection may be lost if it would not be proportionate to the degree of interference that would be entailed for the defendant's Article 10 ECHR rights.
   
   
4. That it is in the public interest to disclose the information;
   Categories of public interest are controversial but it is probably the case that if the defendant is exposing serious or criminal misconduct, or matters of legitimate concern to the public (for example the illness of a politician which means he is incapable of performing his governmental duties), it may be in the public interest to publish the information.
   
   
5. Consent to the publication of the information by the individual concerned.

Q13 Does normal privacy law apply to emails and publications on the Internet?

Yes.

Q14 If a claimant is successful in a breach of privacy claim what might be recovered?

The primary remedy is an undertaking from the defendant or an injunction of the court preventing further publication of the private information. Whether or not an undertaking is given or an injunction granted a secondary remedy is compensation for hurt feelings and distress caused by the publication of private information. The damages awarded are relatively modest. An account of profits can also be recovered as an alternative.

If an express confidentiality agreement has been breached the claimant may seek a declaration that publication of the information was a breach of the terms of the confidentiality agreement.

Q15 Is the Press Complaints Commission (PCC) relevant or helpful?

The PCC and other media regulators do not generally get involved prior to publication and therefore they are of limited assistance in a breach of privacy claim where an injunction to prevent the publication of the private information is sought. However, under s12 Human Rights Act 1998 the court must have particular regard to the importance of the Article 10 ECHR and, where the proceedings relate to material which the defendant claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to any relevant privacy code.

The content of these Questions and Answers do not constitute legal or professional advice and should not be relied on as such. Specific advice should be sought about your specific circumstances. If you have a specific legal question you should address it to one of our lawyers.