Course material

1. Answers: 'Privacy law' has undergone extensive developments over the
years
Answers:
'Privacy law' has undergone extensive developments over the years in the UK. The law
offers protection to individuals to maintain confidentiality over their private information
and protection of the information from being misused. It leads to the creation of the right of
individuals to prevent the unauthorized use of their personal information. It creates a
prohibition on the use of the individual's information without the individual's free consent.
While the laws of tort related to trespass and assault are enforced to protect the physical
privacy of an individual, privacy law is primarily concerned with data protection and
protection of the individual's personal information. The European Convention on Human
Rights also provides for the protection of the privacy of the individuals and enshrines the
individual with the right to have a private life as necessary for a democratic society. Tort
law can be utilized as a tool for protecting the privacy of individuals, and individuals may
seek damages based on their invasion of privacy by another individual or organization. Tort
in data protection and privacy provides a higher level of protection to individuals over their
confidential information. The development of the law of privacy responds to the
advancements of technology and the rapid development of social media platforms that put
individuals' personal information and data at an increased risk. While the development of
the law of privacy as a general Common Law raises several challenges for the judicial
system, it has undergone extensive developments over the last 20 years and is a well-
defined tort as a result.
Historically, the English courts did not recognize the right to privacy under common law. A
prime example of this was the judgment in Kaye v Robertson. The relevant facts of the case
were that famous actor Gorden Kaye had got injured and was recovering from head injuries
in the hospital when two journalists posed as doctors and took photographs of Kaye in the
hospital. Kaye wanted the photos to not be published under his right to privacy. However,
Lord Justice Glidewell held that there is no right to privacy under English common law, and
accordingly, an injunction based on the individual's privacy rights could not be
granted. This was further reinstated in the case of Wainwright v Home Office. The relevant
facts of the case were that Alan Wainwright and his mother were strip-searched when they

2. were visiting Alan's stepbrother in prison. In particular, Alan was handled in a manner that
the Home Office Counsel equated to the tort of battery, and this also severely impacted
Alan's emotional and mental health. The Leeds County Court judge held that the search was
an invasion of Alan's right to privacy and equated the same to the tort of trespass to a
person. However, the Court of Appeal did not agree to this ruling, and Lord Hoffmann held
that there was a tort for the invasion of privacy under common law. However, in the
absence of such laws, torts related to the harm to a person and those related to the misuse
of authoritative powers have come into effect to protect the rights of the citizens.
While the right to the invasion of privacy of an individual was not recognized under
common law, the duty of maintaining the confidence of an individual who shares private
information with others was recognized. Such a 'duty of confidence' is considered to arise
when confidential information of an individual is within the grasp of someone, including
public authorities and disclosing such information would be unfair to the information's
owner. In such scenarios, the recipient of the information, including public authorities, have
a duty of maintaining the confidentiality of the other party and a failure to do so create a
rise of civil claim against the recipient. While initially in the 20th century, the courts
applied this right as a reference to information that had commercial value and referred to
the unauthorized use of such valuable information. Thus, initially, the courts applied this
right in the current domain of law comprising 'trade secrets' and intellectual property
rights. However, gradually, the courts have co-related the duty to the right of privacy of
individuals. For example, the co-relation was examined in the case of Campbell v MGN Ltd,
wherein a famous newspaper breached the rights of the actress by publishing photos and
reports on her attendance at narcotics meetings. The courts held that in such cases, wherein
the right of confidentiality of the individual and their right of privacy merge, the focus is not
simply limited to the relationship of the claimant and defendant. The focus shifts to the kind
of information that was publicized, and a balance has to be struck between the application
of articles 8 and 10 of the ECHR. While article 10 provides the right of freedom of
expression and information of individuals, article 8 is concerned with persons'
privacy. Under article 10, certain restrictions can be placed on the individual's right to
freedom of expression, and these must be following the law. This creates an area for
balancing the rights granted under the two articles, article 8 and article 10.
The current position of the English courts concerning the right of privacy of an individual
under common law was expanded through the case of Douglas v Hello! Ltd. The relevant
facts of the case were that Catherine Zeta-Jones and Michael Douglas had a deal with Ok!
Magazine to publish pictures of their wedding, which were to be selected by the couple. No
other individuals were allowed to take photographs through the weddings as the publishing
rights were exclusively provided to Ok! Magazine. However, an individual could secure
photographs of the event and sold them to Hello Magazine for publication purchases. Thus,
the couple, along with Ok! Magazine, filed a suit against Hello Magazine for several civil
claims, including invasion of privacy and breach of confidence. The Court of Appeal agreed
that the couple had a right of privacy on the photographs, and breach of confidentiality had

3. occurred in the case of Ok! Magazine due to the actions of Hello Magazine. The case was
significant towards the expansion of the doctrine of confidentiality and asserting its co-
relation with the right of privacy of individuals.
The shape of the tort of invasion of privacy has also been shaped by numerous instruments
that protect human rights, such as the ECHR, the International Covenant on Civil and
Political Rights, the UN Convention on the Rights of the Child, UK Human Rights Act 1998
etc. Through the Campbell case of 2004, the English courts accepted the civil claims brought
forth for the invasion of privacy. As per Lord Nicholls, two implications of the breach of
confidence exist in English law as of now; one is related to the traditional protection of
secrets, while the other is related to the protection of the privacy of
indiiduals. Furthermore, in the case of McKennitt v Ash, Lord Buxton sought to define the
rules of the tort of breach of confidientiality. The cases have defined two primary questions
that must be considered if the tort of breach of privacy has occurred in a civil suit. The first
question is regarding the reasonable expectation of privacy concerning the meaning of the
term 'private information' under article 8 of ECHR. The second question was if the
interference with the right granted under article 8 could be justified through the application
of article 10 of ECHR, implying the provision of freedom of expression and speech. In this
regard, the 'ultimate balancing test' utilizes the European Human Rights regulations and has
contributed to developing national claims of actions that individuals may seek upon the
infringement of their right of privacy. The US legal system addresses the invasion of an
individual's privacy through four distinct forms of tort. The US legal regime uses the 'highly
offensive' test so that the elaborate regulations in relation to the right of privacy of
individuals do not interfere with the fundamental freedom of expression and speech of
individuals. However, the English courts have adopted a stricter test when balancing the
two rights. The distinction in the English legal system of the right of privacy as an action for
tort claims is that it utilizes a human rights approach of tort. The citation of ECHR case laws
in such scenarios becomes crucial, and this shapes the tort law of the English courts when
applied following the human rights torts approach. For example, the rules in the case of Von
Hannover v. Germany had to be applied in the Mckennitt case by the English courts. In the
case of Michael v Chief Constable of South Wales Police, the Supreme Court stated that
convention claims and civil claims have distinct legal objecitives. While the former aims at
creating minimal standards of human rights for the citizens of the member states, the latter
is focused on compensating the claimants for the losses and damages suffered due to the
tortious actions of the defendant. This creates conceptual confusion concerning the
interests that the tort seeks to protect and may result in mis-directions concerning the
future development of the tort. In particular, the scope and application of the tort of privacy
become subject to the ECHR precedence as a result. This creates political and practical
challenges as ECHR case laws may offer general guidance but may not respond
appropriately to the linguistic analysis of the common law of a specific State. This has also
been agreed upon by the ECtHR judge Mahoney, in relation to the tort of privacy, who stated
that in terms of balancing the conflicting rights, these judgments could at best provide
guidance to the national values and philosophies of domestic laws. In this sense, the UK's

4. tort of privacy has also been guided by the principles and precedence set through other
ECthR cases. Thus, it can be noted that while basing the tort on ECHR laws creates
challenges of interpretation for the English courts, the tort of privacy of information has
largely been derived through article 8 of ECHR.
It can be noted that English common law in relation to the tort of privacy has developed
from the cases concerning the traditional breach of confidentiality and has begun to
consider the dimension of human rights in the matter, even though the precedence set in
the cases of other member states of the ECHR. Initially, the right was established as a
limited right through the case of Coco v AN Clark (Engineers) Ltd [1968]. However, the
Campbell case served as a landmark element in leading to the complete development of the
right. The courts also stated that the claimant's right to privacy will always outweigh the
right of expression of the other party in such cases.
With the constant development of technology, the protection of the personal data of
individuals has also become crucial. Through incidences, such as the Cambridge Analytica
scandal, the potential of misuse of personal data is evident. The General Data Protection
Regulation has been enforced through the EU for the protection of data of individuals and
for guiding how organizations throughout the world may use and collect data of the citizens
of the member states of the EU. In the UK, the Data Protection Act 2018 has been
implemented as an extension of the EU's data protection regulations concerning data
privacy, namely GDPR. It creates strict data protection principles that must be followed by
organizations handling vast amounts of personal information of UK citizens. This allows the
data subjects to sue for both material and nonmaterial damages. A material consideration
that is required is whether the personal information in such cases is 'private' in nature, as
established in the Naomi Campbell case as well. In the Vidal-Hall and others v Google Inc
case, the courts have established that the actions for breach of confidence of an individual
and the actions for the tort of privacy are distinct in nature as they reply of separate legal
foundation and causes. While the former is concerned with the protection of the secret
information of individuals, the latter is concerned with the protection of the privacy of
individuals. In this regard, both concepts have been noted to serve different interests in
claims related to torts. The courts further recognized the misuse of private information as a
tort in the case and stated that it does not create a new cause of action. The court also
further noted that common law action in tort would be labelled in actions related to breach
of privacy of individuals and created the nexus between the tort with the misuse of personal
information and the duty of data protection. Thus, not following the requirements set under
the UK Data Protection laws can also give rise to actions of tort for breach of privacy, and
UK citizens have the right to claim damages for the same as established in the Vidal Hall
case.
The descriptions of what the breach of privacy as a tort covers is crucial in determining the
extent of damages that the defendant will be liable to cover. Usually, the measure of harm to
the subject has not been a wide matter of discussion by the common law courts. The notions

5. of defamation and psychological harm have been taken into consideration by the courts in
cases concerning the tort of privacy. The violations arising due to breaches of privacy of
individuals related to data misused over the internet have been dealt with on a case to case
basis. In the case of Gulati & Ors v MGN Limited, the court articulated a number of
principles for determining the damages related to the violation of the internet privacy of an
individual. Some of the principles stated that information relating to private financial
matters was likely to be considered as one requiring a high degree of privacy and as a result,
a high degree of damages would be applicable in such cases, information related to matters
of a private relationship would also be requiring a high degree of privacy, etc. The court has
further held that the appropriate amount of compensation for such cases would include the
question of measuring the harm done by sharing personal information. Thus, the courts
have also adopted measures for determining the damages concerning cases of the tort of
privacy.
In conclusion, privacy law has undergone extensive development over the years in the legal
regime of the UK and has become a well-defined tort that offers protection to the privacy of
individuals. Various case laws have established the distinct elements that can be taken into
consideration in cases revolving around breach of privacy of individuals, and measures have
been created to judge the extent of damages in such cases. In comparison, the concept of
privacy was not recognized as a tort 20 years ago by the English courts but now has created
a wide scope of the tort.
Bibliography
Primary Sources
Cases
Burrell v Clifford [2016] EWHC 578 (Ch)
Campbell v MGN Ltd [2004] UKHL 22
Coco v A N Clark (Engineers) Ltd [1969] RPC 41; [1968] FSR 415
Douglas v Hello! Ltd [2005] EWCA Civ 595
Ellis v Chief Constable Essex Police [2003] EWHC 1321
Gulati & Ors v MGN Limited [2015] EWHC 1482
Kaye v Robertson [1991] FSR 62
McKennitt v Ash [2006] EWCA Civ 1714

6. Michael v Chief Constable of South Wales Police [2015] UKSC 2
OBG Ltd v Allan [2007] UKHL 21
Vidal-Hall and others v Google Inc case [2015] EWCA Civ 311
Wainwright v Home Office [2003] UKHL 53
Treaties
European Convention on Human Rights 1953
Secondary Sources
Journals
Leon Trakman, Robert Walters And Bruno Zeller, 'Tort And Data Protection Law: Are There
Any Lessons To Be Learnt?' (2019) 5(4) EDPR Review
Michael Douglas, 'Characterization of Breach of Confidence as a Privacy Tort' (2018) 41(2)
UNSW Law Journal 500-501
Paula Giliker, 'A Common Law Tort of Privacy?' (2015) 27 Singapore Academy of Law
Journal 761
Websites
Ben Wolford, ‘What is GDPR’ (GDPR EU, 2022) < https://gdpr.eu/what-is-gdpr/#>
HSE, 'Breach of Confidence' (HSE UK, n.d.) <
https://www.hse.gov.uk/enforce/enforcementguide/court/reporting-breach.htm>
accessed 17 January 2022