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. 

If you have been subject to misuse of private information, click the link below to contact our expert R&P Solicitors.

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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? 

The House of Lords set out when information about a person is protected by the tort of misuse of information in the case of Campbell v Mirror Group Newspaper Ltd [2004] UKHL 22 in relation to the supermodel, Naomi Campbell. The test is as follows: 

• The information is obviously private. 

• If there is room for doubt that the information is private, then the court will consider if the disclosure cause offence to an ordinary person in the same situation? 

CAN PRIVATE INFORMATION INCLUDE FACTS THAT ARE IN THE PUBLIC DOMAIN? 

The courts have confirmed that privacy laws cover harassment or intrusion, so information that is partly in the public domain can still be covered by the rules relating to the misuse of private information. The courts will consider here the content itself and how it was used and the effect this will have to further impact the privacy rights of the individual.  

WHAT ARE THE POSSIBLE REMEDIES? 

Generally, individuals in these situations will want an injunction to prevent the publication (or further publication) of the private information.  

The courts can also award damages as a form of compensation for the distress caused by their private information being misused. The removal or destruction of the relevant material can also be ordered.  

OTHER WAYS TO PROTECT PRIVACY 

As well as the above method, it is also possible to use one of the following grounds where private information has been used without consent. 

BREACH OF CONFIDENCE 

Confidential information means the information is secret, which can be due to a relationship or because of an agreement/contract between the parties. This is a route that can be used if the claimant can prove that the information was: 

• Confidential in nature. 

• Given “in circumstances importing an obligation of confidence”, which means there needs to be some sort of relationship between the parties. 

• Was detrimental when disclosed to the person who supplied it. 

BREACH OF THE GENERAL DATA PROTECTION REGULATIONS (GDPR) 2016 OR THE DATA PROTECTION ACT (DPA) 2018 

Individuals also have protection under the GDPR and DPA 2018 in relation to how their data and information is processed. There is increased protection in relation to an individual’s control over the use of their personal data by a data controller or processor. If there is a breach of GDPR rules than the individual can receive compensation as well as raising a complaint with the Information Commissioner’s Office (ICO). 

PROTECTION FROM HARASSMENT 

The misuse of private information can in certain cases result in criminal or civil liability if the actions amount to harassment. Under the Protection from Harassment Act 1997, harassment will occur where the behaviour causes alarm or distress. Individuals must not pursue a course of conduct that: 

• Amounts to harassment of another 

• The person knows or ought to have known amounted to harassment of another. 

Harassment occurs where there is a course of conduct, which requires conduct on at least two occasions. Again there are various remedies that can be used to protect individuals that have suffered from harassment.