Privacy claims against the press

Yes, a right to privacy is now established in English domestic law.  Where there is no justification for a breach of privacy, you may be entitled to seek damages (compensation) and an injunction (court order) prohibiting the publication of further private information.  Where publication has not yet occurred, but is threatened, you may be able to seek an injunction restraining publication.  This is sometimes referred to as a ‘gagging order’.

Information is private when the subject can be said to have a ‘realistic expectation of privacy’ in relation to it.  This is an objective test and is highly fact-sensitive.  Information relating to an individual’s sex life, health and finances is often considered private.  In every case it is necessary to assess the precise nature of the information and the individual’s circumstances.  For example, health information relating to an HIV diagnosis will normally be considered private, whilst the fact an individual once had chicken pox will probably not.  Where an individual’s private information is already in the public domain, they may lose any expectation of privacy, particularly if they caused this (although this is not always the case).

“Private information” is personal information which is private because of its nature; for example, because it concerns an individual’s health or sex life.  Privacy claims are brought under the common law tort [legal wrong] of “misuse of private information” which gives effect to an individual’s “right to respect for a private life” under Article 8 of the European Convention on Human Rights (ECHR).

“Confidential information” is effectively “secret” information.  It may be confidential by virtue of an agreement (e.g. a confidentiality clause in an employment contract or non-disclosure agreement in a settlement agreement), an established relationship (e.g. doctor-patient) or simply because it is information which has the necessary nature and quality of confidence and is imparted in circumstances which import an obligation of confidence.  The law of breach of confidence is a well-established equitable doctrine 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.

Additionally, a claim may also be brought under the UK General Data Protection Regulation (‘UK GDPR’).  This is a domestic statute, based on EU legislation, which requires an individual’s personal data to be processed fairly, accurately, lawfully and proportionately.  Whilst the press enjoy certain exemptions in relation to UK GDPR claims, its ambit is wider than privacy claims.

Privacy claims often concern a conflict between an individual’s privacy rights under Article 8 of the ECHR and a publisher’s ‘freedom of expression’ rights under Article 10 of the ECHR.  In these circumstances, the Court will need to perform what is known as ‘the ultimate balancing act’.  A publisher’s Article 10 rights might prevail where there is an arguable overriding public interest.  An example of this might be where a publication exposes wrongdoing or hypocrisy, despite there being a prima facie breach of privacy or confidence.

Generally-speaking this will give rise to a privacy claim, unless details of the relationship are already a matter of wide public knowledge.  This is because there is a difference between the legal concept of ‘public interest’ and ‘what the public is interested in’.  The latter may include ‘tittle-tattle’ and gossip; the former normally does not. An exception to this might be where the story exposes hypocrisy or wrongdoing; for example, where a member of the government is arguably breaching lockdown rules they have promoted by having an illicit affair.  However, even in these circumstances there is a question over what content should be published, i.e. whether it should be limited to information confirming a relationship or could include photographs and/or videos.

• To learn more about how we can help you bring a privacy claim click here to read our Privacy FAQs.