Misuse of private information
and breach of confidence
Our control over our private or confidential information is something we often take for granted. When it is taken from us the consequences can be serious. We may feel violated, exposed, upset and/or embarrassed. In some instances we may suffer financial loss. It is only relatively recently that the law has recognised the importance of an individual’s privacy.
Privacy breaches may take place in any number of contexts. Common examples include: the media publishing a ‘kiss and tell’ story, the publication of private information online or by email, the leak of medical information and the theft of trade secrets.
Listed in the Legal 500 as a leading firm in the field of defamation and privacy, Brett Wilson LLP is perfectly placed to deliver expert support designed to protect your privacy or help you seek redress when it is breached.
What facts will give rise to a privacy claim?
Typically, the unauthorised and unjustified disclosure of private and/or confidential information to one or more parties. Additionally, the mere accessing of private information may also amount to an actionable claim for privacy.
What is the legal basis for bringing a privacy claim?
Privacy claims are typically brought as claims for the misuse of private information, breach of confidence and/or breach of the General Data Protection Regulation ('GDPR')/Data Protection Act 2018.
What is the difference between “private” and “confidential” information?
“Private information” is personal information which is private because of its nature; for example, because it concerns an individual’s health or sex life. It is information in which a claimant is said to have a “realistic expectation of privacy”. The tort [legal wrong] of “misuse of private information” has evolved since the inception of the Human Rights Act 1998. This Act requires Courts to act in a way which gives effect to individual’s "right to respect for a private life" under Article 8 of the European Convention on Human Rights. In 2015 the Court of Appeal acknowledged that the tort is now a distinct feature of English law in its own right.
In many instances what amounts to private information will be obvious. However, this is not always the case. For example, an individual may not have a reasonable expectation of privacy if the information is already in the public domain.
“Confidential information” is effectively “secret” information. It may be confidential by virtue of an agreement (e.g. an employment contract), an established relationship (e.g. doctor-patient) or simply because it is information which has the necessary nature and quality of confidence. The law of breach of confidence is well-established in English law.
Information is often both private and confidential. As such, privacy claims may be brought as both a misuse of private information and breach of confidence.
What is the General Data Protection Regulation ('GDPR') and the Data Protection Act 2018?
The GDPR is "directly applicable" EU legislation that stipulates how “personal data” and “sensitive personal data” should be processed and stored. Whilst data protection rights are arguably not privacy rights as such, there is often an overlap. The Data Protection Act 2018 supplements the GDPR. The legislation replaces the Data Protection Act 1998, which previously governed data protection rights.
How can I stop my private information being misused, my confidence being breached or data protection rights being abused?
It some instances it may be sufficient for us to send a legal notice or warning. If necessary we can seek an injunction (a court order) prohibiting the act.
If my privacy has already been breached what damages am I entitled to?
The High Court and the Court of Appeal set out the approach to privacy damages in 2015. Damages can be recovered (1) for the infringement itself/the loss of control over the private information and (2) distress, anxiety, injury to feelings and embarrassment suffered as a result of the breach.
In some circumstances, it will additionally be possible to recover financial loss where a claimant can prove this has been caused by the breach.
A successful claimant will normally also be entitled to recover most of their legal costs.
What defences can be raised to a privacy claim?
A defendant may seek to argue that the information is not confidential or that it is not information over which a claimant has a reasonable expectation of privacy.
A defendant may deny they are responsible for the disclosure.
A claim will also be defeated if a defendant can show that the claimant consented to the disclosure.
A defendant may also argue that their Article 10 right to freedom of expression outweighs a claimant’s Article 8 right to respect for their private life. In these circumstances, the Court will perform what is known as the “ultimate balancing test” to determine whether the disclosure is justified. Such a defence may succeed where a disclosure is in the public interest. The legal definition of the “public interest” is not necessarily always the same as “what the public are interested in”. For example, the disclosure of information that suggests a politician may be corrupt will normally be in the public interest; that a famous actor has had an affair may not be.
A defendant may also claim the private information is anodyne/bland.
What if private information is false?
Truth or falsity is generally not relevant in privacy claims. The issue is whether the information is private. However, the publication of false information may also give rise to a defamation claim in some circumstances.
Can I sue a search engine or an online platform?
Only in certain circumstances. We will be able to advise you on the viability of such a claim.
Following the decision of the European Court of Justice in Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12) it may be possible to sue search engines under the Data Protection Act (see our 'Right to be Forgotten' page here).
What if I do not know who is responsible for breaching my privacy?
If someone else does (e.g. a telephone/internet company/online platform) we may be able to apply to the Court on your behalf to obtain a disclosure order. See our page here.
What is the first step in bringing a privacy claim?
This will depend on the urgency of the matter. If a breach is imminent then the priority will be to try and prevent it from occurring. This might require a legal notice/request and/or an urgent application for an injunction. An interim injunction can be granted until trial if the Court is satisfied that the claimant is likely to succeed at trial. An interim injunction can also bind third parties who are aware of the order’s existence.
If a privacy breach has already taken place then you can instruct us to prepare a Pre-Action Protocol Letter of Claim. To do this we will need to review the material complained of, other relevant documentation and to take your detailed instructions. We will then prepare and send a formal Letter of Claim to the defendant setting out your case and your requirements.
What if a Letter of Claim does not resolve the matter immediately?
Where liability is not accepted or a case is not settled, ultimately a claim should be issued in the Queen's Bench or Chancery Division of the High Court. This may prompt settlement discussions. If the claim does not settle the matter will be set down for a trial normally 9-18 months after the issue of the claim.
How long do I have to bring a privacy claim?
Whilst technically there is no definitive authority, the general view is that claims should be brought within six years. The Court has a discretion to disapply or defer this period in exceptional circumstances. Nevertheless, claimants are advised to bring claims promptly.
Why should I instruct Brett Wilson LLP
Media law can be notoriously expensive. We are confident our charges represent excellent value for money, particularly for a specialist field practised by relatively few solicitors. Our work is of the highest standard. We are well-respected by media practitioners and listed in the Legal 500 as a leading firm in the field of defamation law and privacy law. Iain Wilson, the partner heading up the department, is ranked as a leading individual in the discipline in the prestigious Chambers & Partners and Thomson Reuters Super Lawyers directories. Most importantly, we achieve positive results for our clients and excellent feedback.
Litigation can be costly. Therefore at the outset of your case we will conduct a cost benefit analysis with you (for example, if your case succeeded would your opponent able to pay any judgment or costs order?) We will talk you through this process. We offer honest and pragmatic advice to our clients. We will always consider alternative options, including other causes of action (such as harassment and defamation) and approaching intermediaries.
What does it cost?
Like most law firms, we charge by the hour and our costs will depend on the factual and legal complexity of your case and the volume of material that needs to be considered. In a relatively straightforward case the cost of reviewing/analysing the material/the legal position, taking detailed instructions, advising and preparing a substantive Letter of Claim or Letter of Response will be in the region of £1,200-3,500 plus vat.
The cost of issuing court proceedings and taking a matter to trial vary considerably depending on the case. We will talk through the likely costs of proceedings with you in person.
The cost of seeking an interim injunction is likely to be at least £7,500 plus vat. Interim injunctions are interim orders and commit a party to bringing a full claim; they are not “standalone” remedies. Whilst cases often settle once an interim injunction has been obtained this can never be guaranteed. This is important to appreciate as a claimant who abandons or loses his claim will normally be responsible for the defendant’s legal costs.
Unfortunately, we are unable to analyse cases/review material free of charge. However, we offer preliminary consultations where we review material, advise on the merits of a prospective claim and talk through relevant practical/legal issues. A consultation will help you understand the legal and practical issues relating to your case and allow you to make an informed decision about what action to take. These consultations are very popular and from the feedback we get clients find them very helpful. The cost of a consultation will depend on the factual and legal complexity of the matter and, in particular, how much paperwork you require us to consider ahead of the meeting. In relatively straightforward matters, the cost may be as low as £400 plus vat.
Do you offer conditional fee (‘no-win, no-fee’) agreements?
A conditional fee agreement (‘CFA’) is an agreement under which solicitors do not charge their client unless they win their claim. Their costs are then recovered directly from the defendant. We occasionally act for privacy claimants on a CFA basis. We will normally only consider acting on a CFA when the defendant is an organisation/institution with significant assets (e.g. a large company or branch of the state) and where we believe there are good prospects of success.
How do I instruct Brett Wilson LLP?
Please note that we do not undertake civil litigation on a legal aid basis and legal aid is not available for privacy claims.