Misuse of Private Information

The right to a private and family life is enshrined in the law under article 8 of the European Convention on Human Rights (ECHR) that was incorporated into domestic law. Where private and confidential information about an individual is shared, this can cause distress for the individual involved as well as having reputational and financial implications. Celebrities, royalty and other high net worth individuals are often targeted by the media looking for the next big story and these people will be concerned about how to protect their right to privacy. 

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Legal recognition of misuse of private information  

The misuse of private information was officially recognised as a tort by the Court of Appeal in Vidal-Hall v Google Inc [2015] EWCA Civ 311. There is a two stage test that is used to consider whether there is a valid claim for misuse of private information: 

• There must be unwanted access to private, confidential information. This threshold test means that the individual would have a reasonable expectation to privacy in relation to that information. There must be some unwanted intrusion into the person’s personal space.  

• There is also the balancing test where the right to a private life needs to be considered against others’ rights, such as being in the public interest and the right to freedom of expression under Article 10 ECHR. The courts need to determine the correct balance in each case in relation to the right to a private and family life with the right to freedom of expression based on the circumstances of each case. Neither right has precedence over the other. 

There does not need to be a pre-existing relationship between the parties for this claim to succeed.  

The tort of misuse of private information has a wide remit and covers situations where the media publishes information gained illicitly but also where private information has been passed between people and/or shared online.  

Defences 

The defence that is most often used in relation to the misuse of private information is Article 10 of the ECHR, which is the right to freedom of expression. The premise for this right is that the information should be disclosed for public interest reasons.  

Children do not have additional rights in relation to privacy law, however, the expectation of a child to be able to enjoy their right to privacy is fiercely protected by the law. If a publication would be harmful to a child, then this is likely to be given considerable weight in the balancing test, even if it is in the public interest.  

The person that published the information can argue that the information is not confidential or the individual should not have a reasonable expectation of privacy. They may also argue that they had consent from the individual or simply deny they were responsible for the disclosure.  

What is misuse of private information?&nb