Invasion of Privacy Is Not an Acknowledged Tort in the UK

Although there is no acknowledged Tort for privacy, there are ways in which it is protected. It has long been acknowledged in case law that there may be a need for privacy but the courts have always been reluctant to create one [2] . There are numerous reasons for the courts reluctance. The strict role of the courts as dictated by the separation of powers is not to create new laws so the courts have for a long time felt that it is for Parliament to create a new tort for privacy [3] . It is also argued that the existing law already caters for so called privacy cases, such was the case in Tolley where the courts were able to find a remedy under the tort of defamation.

A limited right of privacy was established in the case of Coco v AN Clarke [4] under the existing equitable right ‘breach of confidence’. The test established in this case created an obligation not to reveal information where it has been revealed to you in confidence. The application of this was to protect business secrets but could also apply where information is revealed to someone with whom a party had pre-existing relations e.g. Husband and Wife. This test left much to be desired for privacy law in a broader sense particularly where the issue is with people with whom one is not proximate.

The case of Campbell is seen as important as it replaced the previous test (above) with a new test which has a much broader application. Naomi Campbell, a famous model had claimed in the press that she unlike other models, did not take illegal drugs. The Daily Mirror newspaper later published an article which revealed that Campbell was in receipt of rehabilitation therapy for a drug addiction. The story gave details of the nature of the treatment and was published alongside a photograph from which the location of the facility could be inferred. Campbell had previously failed to sue for invasion of privacy and so brought the case before the House of Lords claiming a breach of confidence. Campbell’s grounds for this were that the article and photograph were obviously of a confidential nature and that any reasonable person would agree that this was so.

The Human Rights Act 1998 plays an extremely influential role in the Campbell case in that the House of Lords gave great consideration to the Convention rights of the parties when making their decisions. Article 8 states that a person has a right to a private life and Article 10 states that there is also to be a right to free expression. These rights are invoked by the parties respectively. When creating the aforementioned test for misuse of private information as a result of a breach of confidence, the courts had to ‘weigh up’ these convention rights.

The test consists of two parts. Firstly the claimant must have a ‘reasonable expectation of privacy’ with regard to the information.

“Essentially, the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.” [5]

Secondly the claimant’s right to privacy must outweigh the defendant’s right to free expression.

The court stated that a reasonable expectation of privacy would arise where the information was ‘obviously’ private (medical matters, sexual relationships, finance etc). It is interesting to note that this shows a clear departure from previous case law where the courts have been concerned with ‘confidential’ rather than private information (as in Coco v AN Clarke). The court found that the article itself did contain information which was obviously private since the article contained intimate details of Campbell’s treatment and her relationships within the group.

The photographs in particular raised an issue in the court. The photographs were simply of Campbell in plain clothes leaving the treatment facility and were taken on a public street. They were not ‘obviously’ private. The court found that even where information is not obviously private, a claimant may still have a reasonable expectation of privacy where the information could cause ‘offense to a person of ordinary sensibilities’ in a similar situation to the claimant (the Lenah test) [6] . The court found that the photograph could cause offense as it could have a negative impact on the treatment Campbell was receiving. She was required to attend meetings where she discussed intimate details about her addiction, the photographs revealed the location of the facility meaning she would have to fear media and public attention whilst undergoing treatment.

The inclusion of the Lenah test seems controversial. Moreham suggests that the inclusion of the word ‘offense’ is inaccurate in describing the experience of having one’s privacy invaded. [7] The term invites broad interpretation as can be seen in Campbell where it was held to include a ‘negative impact’ on drug addiction therapy. The inclusion of the test also seems to weigh a case in favour of the claimant by offering a ‘second chance’ at a reasonable expectation of privacy. The courts seem to have embraced this approach describing it as ‘broad’ and that it ‘takes into account all the circumstances of the case’. [8]

When the second part of the test was applied, the court was less sympathetic towards Campbell. She had misled the public by claiming in an interview that she did not take illegal drugs, unlike other models. The court found that the public did have an interest to know the true situation. The article however went into much further detail than was necessary as indicated by Lord Hope.

“the right of the public to receive information about the details of her treatment was of a much lower order than the undoubted right to know that she was misleading the public when she said that she did not take drugs”

Some may argue that breach of confidence is a completely separate affair to the invasion of privacy. It is easy to imagine breach of confidence and a new tort of privacy existing alongside one another. Perhaps in Campbell the courts could have created the new test and left the old Coco v AN Clarke test as it was. The old test could still be applied such as in Mckennitt v Ash. [9] This case involved a relationship of trust which could have led to a breach of confidence in the old sense.

The earlier judgment of Morland J was restored and Campbell was awarded with £2,500 in damages with a further £1,000 in aggravated damages. [10] These were awarded for mental distress but there was no discussion on what factors should be considered in the process. Campbell has however been cited in subsequent cases such as Archer v Williams [11] as an authority on the awarding of damages for mental distress. A discussion of these factors would have been helpful rather than simply acknowledging that damages could be awarded. It could be that Morland J simply used the same criteria that he used in Cornelius v De Taranto. [12] This was concerned with the nature of the private information, the character of the claimant and the extent to which the information was disclosed. The criteria is fair and could be widely applied in many different cases. Since the character of the claimant is assessed perhaps more damages would have been awarded had Campbell not lied to the public previously.

In terms of justice one could argue that the awarding of damages is not a satisfactory remedy for invasion of privacy cases. Once the information has been made public as in Campbell, the damage really is irreversible. A celebrity such as Ms Campbell is not likely to be satisfied by a sum of £3,500. Unfortunately once it is too late to receive an injunction, monetary rewards for mental distress are the best the courts can do. Perhaps the media need to be more closely regulated? This does of course raise issues with Article 10.

The media are already regulated by an independent body (the Press Complaints Commission) but the remedies are completely unsatisfactory. The legislature have almost left no choice for the courts to step up and develop a law on privacy. It is predictable that with the development of the law of privacy, most parties will instead seek the aid of the Courts rather than the PCC.

In conclusion the Campbell case is arguably the most significant privacy case in recent times. Campbell has led to the widening of breach of confidence to be an adequate solution to invasion of privacy cases. The two stage Campbell test is evolutionary rather than revolutionary in that it took the ‘Coco test’ and gave greater consideration to Human Rights implications. Although Campbell has undoubtedly improved the law on privacy, it can be argued that by broadening breach of confidence, it has become too divorced from it’s original purpose. As the courts continue to apply the Campbell rules for breach of confidence, it may get to the stage where the legislature step in and create a new tort of privacy.