1.

State the development of the tort of misuse of private information

Historically in English law there is no right to privacy’,as observed in Kaye v Robertson [1991] .
There was however an ancient equitable right, that focused on the improper use of information
disclosed by one person to another in the context of a relationship of confidence, for example
marriage as in Argyll v Argyll [1967] or employment, as in Prince Albert v Strange (1869)
However here the focus was on the nature of the relationship, whereas now the focus is more
likely to be upon the nature of the information itself. Whereby the misuse of private information
is the primary cause of action. (Douglas v hello Magazine). The current position has its roots in
Article 8(1) (‘the right to respect for privacy’), Article 10(1) (‘the right to freedom of expression’
European Convention on Human Rights and s 12 of the Human Rights Act 1998. While these
are the provisions courts refer to for ‘balancing exercise’ of the rights of a claimant and defendant
in many privacy cases. While the key case in the development of the tort of misuse of private
information is: Campbell v Mirror Group Newspapers [2004]

2. Under the tort of misuse of private information, what information should be protected?
In Campbell v Mirror Group Newspapers [2004] Lord Nicholls observes that , ‘Essentially the
touchstone of private life is whether in respect of the disclosed facts the person in question had
a reasonable expectation of privacy.’ Thus, the test is basically a subjective one (based on the
claimant’s expectation) limited by the requirement that this expectation be reasonable and that
the defendant knew or ought to have known about that expectation.

3. In balancing Article 8 the right to private and family life with the Article 10 right of the newspaper
to inform the public., what are the tests applied by court?
Here the court will ask
a) Does the claimant have reasonable expectation of privacy in the circumstances? ie is this a
situation in which the information is protected by art 8? And
B) must the interest of the owner of the private information yield to the right of freedom of
expression conferred on the publisher by Article 10?

4. Reasonable expectation of privacy is subjective in nature calling into account a number of factors
specify the same
Paul Weller and Murray v Express Newspapers [2008] , ‘these factors were said to include the
attributes of the claimant, the nature of the activity in which the claimant was engaged, the place
at which it was happening, the nature and purpose of the intrusion, the absence of consent and
whether it was known or could be inferred, the effect on the claimant and the circumstances in
which and the purposes for which the information came into the hands of the publisher . However
the same is limited by the requirement that this expectation be reasonable and that the defendant
knew or ought to have known about that expectation.(Campbell v Mirror Group Newspapers
[2004]

5. Specify the very nature of Reasonable expectation of privacy test. By nature it is a normative
enquiry into what privacy protection a claimant is entitled to rather than what he expected .
However at the same time it calls for taking into account how reasonable people respond to
particular disclosure , information or activity (societal attitudes)

6. What remedies are available in this case

Interim injunction to suspend publication until a full trial of the facts. s 12 of the Human Rights
Act 1998 requires that ‘No ... relief is to be granted so as to restrain publication before trial unless
the court is satisfied that the applicant is likely to establish that publication should not be
allowed.’Courts will be ‘exceedingly slow’ to make such orders unless convinced that the
applicant’s prospects for success at trial are ‘sufficiently favourable
7. What are the two interrelated ways to demonstrate that an activity is private as provided by
Morhem ?/ Specify the two privacy principles as outlined by the article
Under the first route is given the Societal attitude requirement that is more objective in nature ,
ie whether the reasonable people would regard the very information private (KGM v NGM)
the second route is more about the privacy signals that the claimant relied upon

8. With regard to the Societal attitude requirement what activities are regarded as private as
identified by the article.

The misuse of private information case Law on the whole identify said information/ activities to
come with in the domain of private activities according to the general societal attitude

Trauma / grief
fear / fantasies/ dreams
appearance
sexual encounters
intimate details of ones personal relationships
intimacy of one’s family life

9. Discuss the claimant’s own privacy seeking signals

Although relied less often than the societal attitude , here the claimant can establish a reasonable
expectation by showing that he maddest clear to the defendant that any disclosure of his information
is not allowed. While this is a subjective test it allows people to determine the area of their life they
wish to keep private by drawing boundaries and signals (that could be both physical and behavioural)
Douglas v hello . In the recent years it has more to do with the absence of consent and the
circumstances in which the information was received by the publisher (Paul Weller and Murray v
Express Newspapers [2008]

10. According to Lord Hoffman, “people who go out in public must accept that they might be
photographed without consent” , refer to the same and specify how does location impact the
reasonable expectation of privacy

The court’s approach is going a great deal of importance to the place where activity took place while
approaching reasonable expectation question , stressing that limited privacy expectations usually
enjoyed at public places and sanctity is accorded to home (Prince Albert Case) The Signals principle
according to the court can be best assessed by considering the locality itself , that is how the claimant
feels, whether he had any reasonable expectation of privacy and the element of voluntariness itself

11. How does the Law protects the interests of children in privacy issues
In Weller the court observed that position of a child is somewhat different from that of an adult
There could be safety issues, and the children had been in no position to consent or object
themselves. Hence in both Weller v Associated Newspapers [2015] and Murray v Express
Newspapers [2008] damages were awarded in respect of photos published of ordinary activities in
public. The balancing exercise was resolved firmly in favour of art. 8.

12. How the two principles work together?

The collaboration of both signal and societal attitude principle in fact helps impose liability in misuse
of private information cases that as the court observed in Cambell require that the defendant knew
or ought to have known about that claimant’s expectation of privacy., which is also the requirement
of balancing Art 8 and Art 10. Hence the person publishing the information will be assumed to know
about the expectation if the information he discloses is one that reasonable people regard as private
(first test) secondly he will be assumed to know that there are some signals that are meant to be
respected , and thus he knows about privacy expectation founded on the two principles.
Moreover if the claimant has used socially recognised signals will help establish the reasonable
expectation requirement rather easily , conversely if claimant signals that he doesn’t regard the
matter as private whereby the societal attitudes treat it as such will weaken a reasonable expectation
of privacy protection.