A new era for privacy law: substantial damages likely to be commonplace
In Gulati & Ors and MGN Limited  EWHC 1482 (Ch) Mr Justice Mann set out guidelines for assessing damages in privacy cases. As well as providing a helpful framework for determining damages, the judgment recognised that the level of damages awarded in earlier privacy cases have often been inadequate.
The claimants were Lauren Alcorn, Robert Ashworth, Sadie Frost, Paul Gascoigne, Shobna Gulati, Shane Roche, Lucy Taggart and Alan Yentob. The defendant, Mirror Group Newspapers, is the publisher of The Mirror and The Sunday Mirror. The claimants had all had their telephones hacked by Mirror journalists, often on numerous occasions over a period of years. Information obtained by hacking had been used as the source of various stories that the newspaper published.
In some instance, private information was also obtained by the ‘blagging’ of information.
There was no dispute that the hacking of mobile telephones and the publication of articles based on information obtained in such a manner amounted to a misuse of the claimants’ private information. Gulati & Ors only concerned the assessment of damages. The trial was effectively a ‘test case’ to establish the appropriate approach and level of damages.
Whilst this case concerned phone hacking, the decision has a much wider application and the principles set out in the judgment will be relevant to any privacy case.
MGN’s lawyers argued that the defendants should only be awarded compensation for the distress suffered by the claimants as a result of the wrongful acts.
Mann J preferred the claimants’ approach, namely layered damages where damages were awarded for different elements and aggregated. Mann J found that damages should be awarded for:-
- The infringement of privacy itself, in other words the claimants should be compensated for their loss of autonomy over their private information (regardless of whether this had caused them distress).
- The distress caused by each article.
- Additional stress as a result of the intrusion
- Aggravated damages for the defendant’s conduct in defending the claim.
Finally, consideration had to be given to the total amount to ensure it was proportionate and commensurate to the wrongdoing, and to avoid double-counting.
The level of damages
The level of total damages awarded varied between £72,500 for Lauren Alcorn and £260,250 for Sadie Frost.
Sadie Frost’s £260,250 award was comprised as follows: £182,750 in respect of 30 articles attributable to hacking (by way of example she received £25,000 for one article which suggested that Jude Law’s friendship with Nicole Kidman had led to her suffering from depression), £10,000 in respect of the activities of private investigators, £30,000 for additional distress and £37,500 for the invasions of privacy generally.
Near the other end of the spectrum, Alan Yentob was awarded £85,000. His voicemails had been the source of stories about others, rather than himself. The damages related to the infringement of his privacy and modest aggravated damages.
The other aggregate awards were as follows:
- Paul Gascoigne - £188,250.
- Shane Roche - £155,000.
- Shobna Gulati - £117,500.
- Lucy Taggart - £157,250.
- Robert Ashworth - £201,250.
MGN is seeking permission to appeal the decision.
It was only earlier this year that the Court of Appeal confirmed that the misuse of private information was a recognised tort, albeit the recognition appeared to be retrospective (see our article on Google Inc v Vidal-Hall & Ors  EWCA Civ 311). Not so long ago it was oft said that there is no right to privacy in English law. The inception of the Human Rights Act 1998 has led to the law of privacy developing at a relative cantor. The decision in Gulati shows just how seriously the court views the intrusion of an individual’s privacy, which many will find a relatively novel concept.
Whilst the facts of this case were unattractive, motive is not a requisite element for establishing liability and thus it would be wrong to assume substantial damages will be limited to cases involving criminality.
Perhaps most interesting is Mann J’s finding that compensation is due for the infringement [of the right to a private life] itself. This is best understood if privacy is imagined as being akin to property. That is, we all hold private information about ourselves and this has an inherent value. It is irrelevant whether we are upset or distressed about it being taken from us; we are still entitled to be compensated for its loss, much in the same way we would be if our physical property was taken from us. If permission to appeal is granted it will be interesting to see whether the Court of Appeal endorses this approach.
A full copy of the judgment can be found here.
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Articles are intended as an introduction to the topic and do not constitute legal advice.