Breach of confidentiality / privacy
The law preventing the misuse of private information is part of the action for breach of confidence. It has been developing rapidly in the UK since the enactment of the Human Rights Act 1998. The right of privacy takes force from Article 8 of the European Convention on Human Rights, which states that "everyone has the right to respect for his private and family life, his home and correspondence". This is often in tension with the right of freedom of expression guaranteed by Article 10 of the Convention, which states that "this right shall include freedom to hold opinions and to receive and impart information and ideas…". Both rights are qualified by one another and neither takes precedence over the other.
Private information
Private information is information about which the claimant has a reasonable expectation of privacy. Usually this is obvious, for example in the field of health, bereavement personal relationships and finances. In unclear cases, the court may ask if a person of ordinary sensibilities, in the shoes of the claimant, would find the publication or broadcast of the information to be highly offensive.
Balancing Articles 8 and 10
If the claimant has a reasonable expectation that his privacy would be respected, then the court must balance the competing rights of privacy and freedom of expression. The court will ask whether the benefit of publication outweighs the damage done by the invasion of privacy. In doing so, the court will take into account all the circumstances including the following:
Categories of information
The courts are much less likely to prohibit disclosure of information of a political nature than trivial tittle-tattle published merely for commercial gain or public gossip. Between these two extremes, the publication of educational and, to some extent, artistic information are also valued in a democratic society. If the information contributes to a public debate which is necessary in a democratic society, then the right of freedom of expression is more likely to prevail over the individual's right of privacy. Photographs are viewed by the court as particularly intrusive. So publication of a verbal description of an event may be legal, whereas a photograph of it may go too far.
The type of claimant
If the claimant is a celebrity or notorious, the privacy claim will be scrutinised more than that of an ordinary citizen. Politicians are the most open to public scrutiny. However, those in the public eye still retain a right of privacy. If they have courted publicity over a certain aspect of their life, then they will receive less sympathy when that aspect is covered by the press. If in contrast, they have not put that or any aspect of their life into the public domain, then they are more likely to be treated like an ordinary individual.
Relationships
The courts will give greater protection to information about a long-term and stable relationship than to a brief fling. In a kiss and tell situation, the right of freedom of expression of the person wishing to reveal their story must be taken into account.
Public interest
If the claimant has misled the public about their private life, then the press is normally entitled to set the record straight. Similarly, it may be that the revelation of private information is necessary in the public interest in order to disclose a wrong-doing, provided that the disclosure is proportionate and to an appropriate person. In deciding what is proportionate, the publisher/broadcaster may be justified in disclosing some of the information, but not all of it.
Jurisdiction, procedure, remedies and costs
In contrast to defamation actions, privacy trials are tried by a single judge, the limitation period is six years and truth is no defence. The rules on jurisdiction are generally the same as those for defamation. A claimant who finds out that his or her privacy is likely to be invaded can apply for an interim injunction. To date, the courts have often been reluctant to grant such injunctions unless the information is particularly intrusive. However, the law seems to be developing in a way that suggests that pre-publication/pre-broadcast injunctions will more readily be granted in privacy cases since in many cases damages are not an adequate remedy. Time is of the essence when a claimant is applying for an interim injunction. Delay will often defeat such an application. If the claimant applies for an interim injunction, he or she must also issue a claim form to start a normal action. The main remedies are an injunction and damages. So far, damages awards in the leading celebrity privacy cases have been relatively low (under $17,000). However, a claimant can elect to have an account of the defendant's profits derived from the disclosure of the private information instead of damages. The costs regime and procedure is similar to that of defamation (see above).