Breach of Confidence and Privacy Rights in Legal Context
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Restrictions, including those
Restrictions, including those
restrictions permitted by the
restrictions permitted by the
European Convention on Human
European Convention on Human
Rights
Rights
Duty of confidentiality
Duty of confidentiality
Breach of Confidence
Breach of Confidence
Breach of Confidence
•
Do we in English Law have a right to privacy?
•
Lord Justice Glidewell in ,
Kaye v Robertson [1991]
stated that:
“It’s well-known that in English law there is no right to privacy,
and accordingly there is no right of action for breach of a
person’s privacy’’.
Breach of Confidence
•
In this country, unlike the United States, there is no over-
arching, all-embracing cause of action for 'invasion of
privacy': see
Wainwright v Home Office [2003]
•
However protection of various aspects of privacy is a fast
developing area of the law. The recent decision of the Court
of Appeal of New Zealand in
Hosking v Runting (2004)
is an
example of this.
•
In Britain the development of the law has been spurred by
enactment of the Human Rights Act 1998.
Breach of Confidence
•
No tort of invasion of privacy.
•
Legal controls exist that can be used against the media and
others.
•
Competition between freedom of expression and respect for
an individual's privacy. Both are vitally important rights.
Breach of Confidence
•
What is privacy?
•
Calcutt Committee 1990 defined it as:
“The right of the individual to be protected against intrusion
into his personal life or affairs, or those of his family, by direct
physical means or by publication of information.”
Breach of Confidence
•
What is breach of confidence?
•
Civil remedy giving protection against the disclosure or use of
information which is not generally known and which has been
entrusted in circumstances imposing an obligation not to
disclose it without authorisation.
•
The use of the civil law of breach of confidence to protect
privacy can be traced back to
Prince Albert v Strange
(1849)
•
Also in
Argyll v Argyll
(1967) where it was held that the
Duchess of Argyll could obtain an injunction to prevent
newspapers from revealing the secrets of her marriage, which
had been disclosed to the newspaper by the Duke.
Breach of Confidence
Three traditional elements of breach of confidence
summarised in
Coco v AN Clark (Engineers) Ltd 1969:
1.
The information must have the necessary quality of confidence
about it.
2.
The information must have been given in circumstances
importing an obligation of confidence.
3.
Unauthorised use of that information.
Breach of Confidence
What is ‘information’ for the purposes of the law of confidence?
•
Information concerning an individual’s sexual orientation -
Stephens v Avery (1988).
•
Photographs –
HRH Princess of Wales v MGN Newspapers Ltd
(1993).
•
Photos from a film set
– Shelley Films Ltd v Rex Features Ltd
(1993).
Breach of Confidence
What is ‘information’ for the purposes of the law of
confidence?
•
Information concerning an individual’s sexual orientation –
Stephens v Avery (1988).
•
Photographs –
HRH Princess of Wales v MGN Newspapers Ltd
(1993).
•
Photos from a film set
–
Shelley Films Ltd v Rex Features Ltd
(1993).
Breach of Confidence
•
Since Stephens v Avery basic principle appears to be that
confidentiality will be enforced if the information was
received on the basis that it is confidential.
•
Fact that information is given in confidence may be
expressly communicated to the defendant as in Stephens v
Avery, but can be implied from the circumstances
surrounding the communication –
Fairnie (Dec’d) and Others
v Reed and Another (1994).
Breach of Confidence
Fairnie (Dec’d) and Others v Reed and Another (1994)
Here confidential information about the format of a board game,
which the claimant wished to sell was mentioned by him in passing
during a conversation with a virtual stranger, the stranger was not
told that it was given in confidence.
Court of Appeal HELD information given in confidence due to the
clear commercial value of the information.
Breach of Confidence
Public interest defence
•
Confidential information will not be protected if the public
interest outweighs the interest in preserving confidentiality.
•
AG v Guardian Newspapers Ltd (No 2) (1990) –
the interest in
maintaining confidentiality was outweighed by the public
interest in knowing the allegations in Spycatcher.
•
Woodward v Hutchings(1977)
•
Lion Laboratories v Evans and Express Newspapers
(1985)
•
X v Y (1988)
.
Breach of Confidence
Breach of Confidence and Privacy post
Human Rights Act 1998
•
Art 8. European Convention - Right to Privacy now
incorporated into the Human Rights Act 1998 - how quickly
or how far judges will move the law in the direction of the
protection of privacy?
•
Individual privacy cannot be considered in isolation. Privacy
must be weighed alongside freedom of speech and
expression, which is also an important right under the
European Convention. (Art. 10)
See cases
post HRA 1998:
•
Venables & Thompson v News Group Newspapers (2001)
•
Campbell v MGN (2004)
•
Douglas v Hello (2007)
Breach of Confidence and Privacy post
Human Rights Act 1998
See cases
post HRA 1998:
•
Venables & Thompson v News Group Newspapers (2001)
•
Campbell v MGN (2004) & MGN v UK (2011)
•
Douglas v Hello (2005)
•
Re S (A Child) ( Identification :Restriction on Publication) [2004]
•
Ash v McKennitt (2006)
•
Associated Newspapers Ltd v Prince of Wales (2006)
•
Murray v Express Newspapers (2008)
•
Mosley v News Group Newspapers (2008)
Breach of Confidence and Privacy post
Human Rights Act 1998
See cases
post HRA 1998
•
Author of a Blog v Times Newspapers (2009)
•
Napier v Pressdram Ltd (2009)
•
BBC v Harper Collins Ltd (2010) ‘Stig’ case – Top Gear
•
Hutchenson v News Group Newspapers (2011)
Footballer cases:
•
Terry v Persons Unknown (2010)
•
Ferdinand v MGN (2011)
•
CTB v News Group Newspapers (2011)
Setting the boundaries for privacy and the
European Court of Human Rights
Strasbourg cases:
•
Von Hannover v Germany ( No 2) (2012)
•
Springer v Germany (2012)
Breach of Confidence and Privacy post
Human Rights Act 1998
Group discussion
•
In the absence of a tort of invasion of privacy the existing
laws of breach of confidence, have served many celebrities
in their battles for the right to privacy (e.g. Catherine Zeta
Jones).
•
Do you think a privacy law is needed or does the law of
breach of confidence suffice?
The legal landscape regarding breach of confidence and privacy rights, especially in the context of English law and the European Convention on Human Rights, is complex and ever-evolving. While English law traditionally does not recognize a right to privacy, recent developments and landmark cases have highlighted the importance of protecting individuals' privacy and personal information. Breach of confidence, civil remedies, and the delicate balance between freedom of expression and privacy are crucial aspects of this legal domain, shaping the rights and responsibilities in modern society.
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Presentation Transcript
Restrictions, including those restrictions permitted by the European Convention on Human Rights Duty of confidentiality Breach of Confidence
Breach of Confidence Do we in English Law have a right to privacy? Lord Justice Glidewell in , Kaye v Robertson [1991] stated that: It s well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person s privacy .
Breach of Confidence In this country, unlike the United States, there is no over- arching, all-embracing cause of action for 'invasion of privacy': see Wainwright v Home Office [2003] However protection of various aspects of privacy is a fast developing area of the law. The recent decision of the Court of Appeal of New Zealand in Hosking v Runting (2004) is an example of this. In Britain the development of the law has been spurred by enactment of the Human Rights Act 1998.
Breach of Confidence No tort of invasion of privacy. Legal controls exist that can be used against the media and others. Competition between freedom of expression and respect for an individual's privacy. Both are vitally important rights.
Breach of Confidence What is privacy? Calcutt Committee 1990 defined it as: The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.
Breach of Confidence What is breach of confidence? Civil remedy giving protection against the disclosure or use of information which is not generally known and which has been entrusted in circumstances imposing an obligation not to disclose it without authorisation.
Breach of Confidence The use of the civil law of breach of confidence to protect privacy can be traced back to Prince Albert v Strange (1849) Also in Argyll v Argyll (1967) where it was held that the Duchess of Argyll could obtain an injunction to prevent newspapers from revealing the secrets of her marriage, which had been disclosed to the newspaper by the Duke.
Breach of Confidence Three traditional elements of breach of confidence summarised in Coco v AN Clark (Engineers) Ltd 1969: The information must have the necessary quality of confidence about it. The information must have been given in circumstances importing an obligation of confidence. Unauthorised use of that information. 1. 2. 3.
Breach of Confidence What is information for the purposes of the law of confidence? Information concerning an individual s sexual orientation - Stephens v Avery (1988). Photographs HRH Princess of Wales v MGN Newspapers Ltd (1993). Photos from a film set Shelley Films Ltd v Rex Features Ltd (1993).
Breach of Confidence What is information for the purposes of the law of confidence? Information concerning an individual s sexual orientation Stephens v Avery (1988). Photographs HRH Princess of Wales v MGN Newspapers Ltd (1993). Photos from a film set Shelley Films Ltd v Rex Features Ltd (1993).
Breach of Confidence Since Stephens v Avery basic principle appears to be that confidentiality will be enforced if the information was received on the basis that it is confidential. Fact that information is given in confidence may be expressly communicated to the defendant as in Stephens v Avery, but can be implied from the circumstances surrounding the communication Fairnie (Dec d) and Others v Reed and Another (1994).
Breach of Confidence Fairnie (Dec d) and Others v Reed and Another (1994) Here confidential information about the format of a board game, which the claimant wished to sell was mentioned by him in passing during a conversation with a virtual stranger, the stranger was not told that it was given in confidence. Court of Appeal HELD information given in confidence due to the clear commercial value of the information.
Breach of Confidence Public interest defence Confidential information will not be protected if the public interest outweighs the interest in preserving confidentiality. AG v Guardian Newspapers Ltd (No 2) (1990) the interest in maintaining confidentiality was outweighed by the public interest in knowing the allegations in Spycatcher. Woodward v Hutchings(1977) Lion Laboratories v Evans and Express Newspapers (1985) X v Y (1988) .
Breach of Confidence and Privacy post Human Rights Act 1998 Art 8. European Convention - Right to Privacy now incorporated into the Human Rights Act 1998 - how quickly or how far judges will move the law in the direction of the protection of privacy? Individual privacy cannot be considered in isolation. Privacy must be weighed alongside freedom of speech and expression, which is also an important right under the European Convention. (Art. 10) See casespost HRA 1998: Venables & Thompson v News Group Newspapers (2001) Campbell v MGN (2004) Douglas v Hello (2007)
Breach of Confidence and Privacy post Human Rights Act 1998 See casespost HRA 1998: Venables & Thompson v News Group Newspapers (2001) Campbell v MGN (2004) & MGN v UK (2011) Douglas v Hello (2005) Re S (A Child) ( Identification :Restriction on Publication) [2004] Ash v McKennitt (2006) Associated Newspapers Ltd v Prince of Wales (2006) Murray v Express Newspapers (2008) Mosley v News Group Newspapers (2008)
Breach of Confidence and Privacy post Human Rights Act 1998 See casespost HRA 1998 Author of a Blog v Times Newspapers (2009) Napier v Pressdram Ltd (2009) BBC v Harper Collins Ltd (2010) Stig case Top Gear Hutchenson v News Group Newspapers (2011) Footballer cases: Terry v Persons Unknown (2010) Ferdinand v MGN (2011) CTB v News Group Newspapers (2011)
Setting the boundaries for privacy and the European Court of Human Rights Strasbourg cases: Von Hannover v Germany ( No 2) (2012) Springer v Germany (2012)
Breach of Confidence and Privacy post Human Rights Act 1998 Group discussion In the absence of a tort of invasion of privacy the existing laws of breach of confidence, have served many celebrities in their battles for the right to privacy (e.g. Catherine Zeta Jones). Do you think a privacy law is needed or does the law of breach of confidence suffice?
