Discussion

The Particular Interests That Are Actually Protected Or Safeguarded By Law Of Tort Actually Diverge Fluctuate Substantially In Character And Appeal From Injury In Relation To The Individual to protection against the wrongful harm to the reputation of any person. Although, as society advances and develops and the technology allows further intrusion or interference into the personal lives of the individuals, the means with the help of which harm or injury might be committed against the well-being of any person, continue to change and evolve. In spite of the formation and the implementation of the Human Rights Act of the United Kingdom (enforced in the year of 1998), the courts of the United Kingdom have kept on rejecting the formation and sanction of a general tort relating to the invasion of the privacy. In the case of Wainwright v Home Office [2004] 2 AC 406, Lord Hoffman deliberated that any apparent gaps in law shall be possible to be filled by the judicious development and advancement of the prevailing causes of action like the ‘breach of confidence’ or, subsequent to the implementation of the 1998 Human Rights Act, with the claims as per the Act for the violation of Article 8 as provided in the ECHR (relating to right to private life). This essay shall discuss the law relating to ‘misuse of private information’ and ‘breach of confidence’ and invasion of the privacy, and whether common law should develop such protection a lot more with the help of inspiration from the other jurisdictions.

A pertinent case in this regard can be said to be the case of Kaye v Robertson [1991] FSR 62 (CA). This particular case involved the actor named Gorden Kaye, who actually suffered grave head injuries after a board smashed through the windscreen of his car in the Burns’ Day tempest of January 1990. While the actor had been recovering from his brain surgery, 2 unknown journalists or reporters from Sunday Sport postured as doctors and then took photographs of the actor in the room where he was being kept at the hospital. Afterwards, Kaye made an attempt to acquire a specific order for restraining the publication of the specific photographs. However, actor Gorden Kaye was not successful in his quest to restrain the publication of the photographs. In the above said case, the ruling had been forwarded that no common-law right in relation to privacy actually exists in the English law. In the above said case, it had been specified by Glidewell LJ that it is known to everyone that in the English law no right in relation to privacy actually exists, and therefore, no right of action actually exists in connection to violation of the privacy of any individual.

In the case of Wainwright v Home Office [2004] 2 AC 406, Lord Hoffman specified that there is certainly no need to alter, distort or change the principles relating to the common law. He mentioned that it shall not be the function of any court to legislate, enact or constitute in relation to any new field. He further mentioned that the extension of the present principles and the laws would be one thing, however, the construction and formation of an overall new right would be another. However, the case of Douglas v Hello! No 2 [2003] EWHC 786 (Ch) actually observed a different opinion. Initially, in the first case of Douglas v Hello No 1 [2001] 2 WLR 992, Michael Douglas and Catherine Zeta-Jones endeavoured to gain a specific injunction in order to stop the publication of the unauthorized photographs of their wedding. OK! Magazine and the Douglases demanded for invasion of the privacy, breach of the confidence, violation of Data Protection Act of 1998 as well as the conspiracy to injure and intention to damage. Although, the only fruitful claims had been in relation to the breach of Data Protection Act and breach of the confidence. High Court forwarded a specific injunction in such regard. However, afterwards the ruling of High Court had been overturned by Court of Appeal. In the Court of Appeal, Brooke LJ reaffirmed 3 necessities in connection to the existence of breach of confidence, which included, (i) the presence of an obligation of the confidence, (ii) ascending just on the private occasions, and (iii) the potential claimants shall be obligated to make clear that photographic pictures would not be allowed to be taken. It had been ruled by Brooke LJ that the Douglases could not imagine and expect any kind of privacy at their wedding, where approximately 250 guests were invited. However, ultimately, in the case of Douglas v Hello! Ltd [2005] EWCA Civ 595, upholding the judgment of the 2003 case, it had been agreed by the House of Lords (in a 3 to 2 judgment) that the photographs in connection to the wedding would be confidential as situations and conditions of confidence existed, and that publication of such photographs was to the loss and disadvantage of the ‘OK’ magazine.

In the case cited to be Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, it had been confirmed by the House of Lords that the specific approach that have been given effect to by the English law is to acknowledge and concede that, subsequent to the enactment of the Human Rights Act of 1998, a specific shift has occurred in the ‘center of the gravity’ regarding the action in relation to breach of the confidence. It had been highlighted that new tort shall not be created, although, the action relating to the breach of the confidence shall be extended in order to encompass the divulgence of the confidential information as well as the unjustified, unwarranted and unfair publication of personal information. In the Campbell case, the matter related to a sequence of photographs and articles concerning supermodel Naomi Campbell demonstrating and specifying her presence at the meetings of the Narcotics Anonymous. In the specific case, it had been accepted by the House of Lords that it shall be possible to bring an action even where there might not have been any pre-existing relation of confidence amidst the person and the particular party procuring the information. However, it should be noted that it was more than a meagre extension of any present cause of action. In the case of OBG Ltd v Allan [2007] UKHL 21, which was actually amalgamated with Mainstream Properties Ltd v Young [2005] IRLR 964 and Douglas v Hello! Ltd [2005] EWCA Civ 595, it had been recognized by Lord Nicholls that 2 versions relating to the breach of the confidence actually exists, one is the outmoded action protecting the confidential or secret information, and the other one is the fresh new action that pursued to protect a somewhat different interest, which is that of the privacy.

In the latter case of McKennitt v Ash [2008] QB 73 (CA), it has been declared by Buxton LJ that in order to find the specific rules of what has been termed as the fresh new ‘tort of breach of confidence’, the courts must look into the jurisprudence in relation to such articles that had not been simply of parallel or persuasive effect but delivered the very content regarding the domestic tort, which the courts of England were obligated to implement or enforce. Such declaration has also been accepted in the case of Murray v Express Newspapers [2009[ Ch 481 (CA). It should be noted that from the above said cases, a new procedure or methodology has been identified whereby the liability or the accountability is determined after asking 2 specific questions, which includes (i) whether there is any reasonable expectation of the privacy (this shall be demonstrated if the specific information is actually private meaning that it is safeguarded or protected by the Article 8 as provided in the ECHR), and (ii) where Article 8 is involved, whether interference with such right is justified in every circumstance or situation by the Article 10 as provided in the ECHR (that is, the freedom relating to expression).

While determining the fact that whether any reasonable expectation relating to privacy actually exists, several factors can be said to be pertinent, for instance (as specified in the case of Murray v Express Newspapers [2009[ Ch 481 (CA)), the characteristics of the particular claimant, the nature in relation to the action where the claimant had been involved, the specific place where it had been transpiring, the purpose and nature of the interference, the absenteeism of consent, and the impact upon the claimant as well as the circumstances where the information reached the hands of the particular publisher. The court shall take into consideration every circumstance in relation to the case and, certainly, in several cases, the concerned data or information might be apparently private, for instance, information in connection to health (as in the Campbell case), personal relations (as in the McKennitt case) or the particular financial matters. In phase 2, the court shall be obligated to ask whether the privacy of the claimant is proportionate in relation to the public interest that may have been alleged to be attended through interference. Such has been specified in the case of Mosley v News Group Newspapers Ltd [2008] EWHC 1777 as well. The view of the courts is that Article 8 and Article 10 carry equal weight as mentioned in the case of Re S (a child) [2005] 1 AC 593. On such basis, where the particular values that are intrinsic in the 2 above said Articles are actually in conflict, a strong emphasis upon The Comparative Significance of the particular rights that are being claimed in the given case shall be essential and the explanations or justifications in connection to meddling with or constraining each specific right should be considered and the specific proportionality test should be applied in relation to each. This is known to be the ‘ultimate balancing’ test.

This actually results in a rare and an uncommon shape or outline of the legal development and progression in which the human rights law of Europe is helping and facilitating to shape the national forms of the actions. The specific action, which had been suggested by Lord Nicholls in the case of Campbell v Mirror Group Newspapers Ltd, shall be better compressed as the tort relating to the misuse of the private information, and has lately been recognized by Court of Appeal in the case of Vidal-Hall v Google Inc [2015] EWCA Civ 311 to be fittingly and appropriately categorized as a tort. Therefore, it can be said that the courts of the United Kingdom have created and established a distinctive and exclusive version of the tort law that actually differs in the focus as well as the character from the traditional or customary causes of action. This pattern or outline of the legal development or progression also differs from the specific incremental development or progression of the new forms or versions of the tort law in the other common law jurisdictions. It should be noted that the other jurisdictions of common law have been keen on creating new torts that protect the privacy interests. The most famous in this regard can be said to be that of the United States. It has inspired the developments in Ontario and New Zealand. In the 2^nd U.S. Restatement of Torts, section 652A classifies 4 kinds of interference against which law must offer certain protection, which includes (i) unreasonable interference upon the privacy of any other (as specified in section 652B, or (ii) appropriation of the likeness or name of any other (as specified in section 652C, or (iii) unreasonable publicity of the private life of any other (as specified in section 652D), or (iv) publicity that unreasoningly Places Any Other In False Light Before General Populace.

Conclusion

Therefore, to conclude, it can be said that this essay discussed the law relating to ‘misuse of private information’ and ‘breach of confidence’ and invasion of the privacy, and it must be noted that common law of United Kingdom should certainly develop the protection in tort by taking inspiration from the common law jurisdiction of United States.

American Restatement of Torts, Second, 1965.

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22.

Data Protection Act, 1998.

Douglas v Hello No 1 [2001] 2 WLR 992.

Douglas v Hello! Ltd [2005] EWCA Civ 595.

Douglas v Hello! No 2 [2003] EWHC 786 (Ch).

European Convention on Human Rights, 1950.

Human Rights Act, 1998.

Kaye v Robertson [1991] FSR 62 (CA).

Mainstream Properties Ltd v Young [2005] IRLR 964.

McKennitt v Ash [2008] QB 73 (CA).

Mosley v News Group Newspapers Ltd [2008] EWHC 1777.

Murray v Express Newspapers [2009[ Ch 481 (CA).

OBG Ltd v Allan [2007] UKHL 21.

Re S (a child) [2005] 1 AC 593.

Vidal-Hall v Google Inc [2015] EWCA Civ 311.

Wainwright v Home Office [2004] 2 AC 406.