Unpacking The Reasonable Expectation of Privacy Test

Unpacking the reasonable expectation of privacy test, L.Q.R.
2018, 134(Oct), 651-674
For educational use only

Unpacking the reasonable expectation of privacy test
N.A. Moreham*
Table of Contents
I. Introduction
II. The Reasonable Expectation of Privacy Test
III. How Does the Reasonable Expectation of Privacy Test Work?
IV. The First Principle: Societal Attitudes to the Information or Activity in Question
V. The Second Principle: the Claimant’s Privacy Signals
VI. How the Two Privacy Principles Work Together
VII. Conclusion
Journal Article
Law Quarterly Review
L.Q.R. 2018, 134(Oct), 651-674
Subject
Torts
Other related subjects

Jurisprudence
Keywords
Jurisprudence; Misuse of private information; Privacy; Reasonableness
*L.Q.R. 651 I. Introduction

The question of whether a claimant has a reasonable expectation of privacy lies at the heart of the English misuse of private
information action. Courts have made it clear that establishing such an expectation depends on a wide range of factors such as
the claimant’s location, the nature of the information disclosed, and the nature of the activity in which he or she was engaged.
This article will argue that all of these factors, and indeed the application of the reasonable expectation of privacy test itself,
are underpinned by two previously unarticulated principles. The first is that a claimant will have a reasonable expectation of
privacy if such an expectation is consistent with societal attitudes to the information or activity in question; in other words,
© 2021 Thomson Reuters. 1

Unpacking the reasonable expectation of privacy test, L.Q.R. 2018, 134(Oct), 651-674
if reasonable people would think that people should be protected against exposure of the information or activity at issue. The
second principle asks what signals the claimant gave that he or she regarded the information or activity as private and whether
social norms would usually require such privacy signals to be respected. These principles operate as two alternative, but usually
mutually reinforcing, routes to the same destination, i.e. establishing a prima facie actionable privacy interest.
By uncovering these principles for the first time, this article seeks to recalibrate our understanding of the legal privacy interest.
The first aim in doing this is to bring more certainty to the application of the reasonable expectation of privacy test. Courts should
not feel moved, as the English Court of Appeal recently did, to express "sympathy" with the view that the private information
tests "are too vague and uncertain of application for an editor to know with a reasonable degree of confidence whether it is safe
to publish". Nor should they say that the "the guidance to be derived from the case law has only limited value". 1 The action
need not be this amorphous. Secondly, the articulation of the claimant-focused signals principle aims to return consideration
of the claimant’s own behaviour in respect of the information or activity to the heart of the enquiry into what is and is not
private. This principle not only reflects the subjective elements of the privacy interest, but also highlights the ongoing relevance
of breach of confidence principles, particularly those recognising the importance of the circumstances in which information
is imparted. It also gives coherence to many apparently disparate *L.Q.R. 652 factors which bear on the application of the
reasonable expectation of privacy test including the claimant’s location, the treatment of children, surreptitious observation and
the degree of knowledge required.
The article is developed in four main stages. It begins by making two preliminary points about how the reasonable expectation
of privacy test works: first, that that test entails a normative enquiry focusing on what "privacy protection" the claimant deserves
and secondly, that reasonable expectations of privacy are significantly affected by context. The two new principles are then
discussed in detail. The article concludes by showing how the two principles can work together to provide an intuitive and
predictable conceptual framework for applying the reasonable expectation of privacy test.
II. The Reasonable Expectation of Privacy Test

The reasonable expectation of privacy test which lies at the heart of the analysis in this article was first identified as the
"touchstone" of the misuse of private information action by Lord Nicholls of Birkenhead in Campbell v MGN Ltd .2 If the
claimant can establish reasonable expectation of privacy then the right to respect for private life in art.8 of the ECHR is "engaged"
and the first hurdle in the misuse of private information action is cleared. It is then up to the defendant to show that that right is
outweighed by some other interest, usually the right to freedom of expression guaranteed by art.10 of the ECHR .3 Courts have
identified numerous factors which will bear on the application of the reasonable expectation of privacy test. As a unanimous
Court of Appeal explained in Murray v Express Newspapers Plc , holding that the young son of well-known author J.K. Rowling
could restrain the defendants from publishing photographs taken of him on the public street during a family trip to a café:4
"As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all
the circumstances of the case. They 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."
Other factors, including the form in which the information was stored, the way it was communicated, and whether the claimant
courted publicity, can also be considered. *L.Q.R. 653 5
This article starts from the position that the reasonable expectation of privacy test is essentially a good one. The concept of
"reasonable expectation" recognises the subjective nature of the privacy interest (the expectation part) whilst at the same time
imposing an objective check (the reasonableness part). 6 Courts are also right, in this author’s view, to recognise that a wide
range of factors can bear on the scope of a claimant’s reasonable expectation of privacy including some factors which other
authors would argue belong in the second stage of privacy enquiry. The framework set out in this article therefore envisages
a more limited role for the second part of the misuse of private information action than scholars, like Eric Barendt, who argue
that courts should define privacy expansively and then rely on exceptions or the balance with competing interests to weed out
unmeritorious claims.7 Finally, the article starts from the premise that the courts in Murray and other cases have generally
identified an appropriate set of factors to guide the application of the reasonable expectation of privacy test. There are, however,
two exceptions. To the extent that they are asking whether there is a public interest in the claimant’s activity, the enquiries
into "attributes of the claimant" and "purpose of the intrusion" should be dealt with when courts consider the public interest

defence.8 Factors such as the claimant’s location, the nature of the activity, the absence of consent, and courting publicity are,
however, highly relevant to the reasonable expectation of privacy enquiry.
III. How Does the Reasonable Expectation of Privacy Test Work?

So, how does the reasonable expectation of privacy test actually work? More precisely, what is the nature of the test and what
is it trying to achieve?
1. The reasonable expectation of privacy protection test is a normative enquiry

Whether a claimant has a reasonable expectation of privacy is a normative enquiry into what privacy protection a claimant can
expect the law to provide in the situation in question. Concluding that a person has a reasonable expectation of privacy is a
shorthand for saying that, subject to any overriding competing interests, the claimant is entitled to expect his or her privacy
to be protected in the circumstances of the case.9 This idea is deeply embedded in the misuse of private information case law.
For example, in Campbell , Lord Nicholls made it clear that he was concerned about whether the claimant had "a reasonable
expectation of privacy that [the *L.Q.R. 654 claimant’s drug taking] should be private". 10 Similarly, in Weller v Associated
Press Ltd , in which the children of a well-known musician claimed damages for publication of photographs of them on a family
outing in Los Angeles, the Court of Appeal said that what was at issue was "the reasonable expectation of the parents as to
whether the child’s life in a public place should remain private". 11 In Murray , the Court of Appeal said that the issue was
whether the child at the centre of the action had a reasonable expectation of privacy "in the sense that a reasonable person in
his position would feel that the photograph should not be published". 12 The court therefore concluded that the claimant had a
reasonable expectation that paparazzi photographs of him would not be published even though, as a matter of factual reality,
his mother’s fame meant that it was almost inevitable he would receive media attention of that nature.
It follows that the reasonable expectation of privacy test is not a factual question about what potential privacy-infringers can or
usually do in the situation in question. Courts in other jurisdictions have, however, interpreted it in this way. For example, in
Schulman v W Productions Ltd the Californian Supreme Court held that the claimant could not have had a reasonable expectation
that members of the media would be excluded or prevented from photographing her as she was attended by paramedics at
the scene of a serious road accident because "for journalists to attend and record the scenes of accidents and rescues is in no
way unusual or unexpected". 13 In contrast, the claimant did have an objectively reasonable expectation of privacy in respect
of conversations conducted inside a rescue helicopter because the court was "aware of no law or custom permitting the press
to ride in ambulances or enter hospital rooms during treatment without the patient’s consent". 14 In other words, whether the
claimant had an objectively reasonable expectation of privacy depended not on whether the defendant’s conduct was acceptable
but on whether the media usually respected an individual’s privacy in the situations in question. Hints of this type of reasoning
can also be seen in English privacy decisions. For example, in Kinloch v HM Advocate , Lord Hope of Craighead observed
in obiter dicta that a person has to:
"expect to be the subject of monitoring on closed circuit television in public areas where he may go, as it is a familiar feature
in places that the public frequent". 15
In other words, because CCTV filming has become common, people cannot expect to be free from it.
It is regrettable that it is not clear on the face of the English reasonable expectation of privacy test that it is not supposed to
be applied in this way. Clearly, it should not be the case that once an intrusive practice becomes sufficiently widespread to be
"in no way unusual or unexpected" (be it videoing people in ambulances, watching people with CCTV cameras, or bugging
Narcotics *L.Q.R. 655 Anonymous meetings) then all rights of privacy in respect of it are automatically lost.16 If it were,
defendants themselves would set the parameters of the legal privacy interest. As courts have made clear, this is not the position
in the English misuse of private information action—rather the focus is on what a person should be entitled to expect in the
circumstances in question.
A simple change to the formulation of the reasonable expectation of privacy test would make this clearer. If courts were to add
the word "protection" to the end of the test—so that the question became whether the claimant had a reasonable expectation
of privacy protection —then the epithet itself would make it clear that the question is whether the claimant was entitled to
expect his or her privacy to be protected in the situation in question. There is Supreme Court support for this approach. In

JR38 , that court considered whether the police breached the art.8 right to respect for private life of a 14-year-old boy by
publishing photographs of him allegedly involved in a riot. Although the minority did not agree that the claimant had to establish
a reasonable expectation of privacy before art.8 would be engaged,17 all five judges agreed that the reasonable expectation
test is about the claimant’s entitlement to privacy protection. For example, Lord Kerr regarded the test as being about "what is
reasonable to expect as to protection of his or her privacy"; Lord Wilson said he could not think of a situation where art.8 would
be engaged absent a "reasonable expectation of privacy or a reasonable expectation of protection and respect for private life";
and Lord Toulson (with whom Lord Clarke concurred on this point) said that he regarded the questions of whether the claimant
had a "reasonable expectation of privacy" or "legitimate expectation of protection" as "synonymous". 18 The test should be
amended to reflect this focus on whether the claimant is entitled to be protected against the defendant’s alleged privacy intrusion.
The epithet "reasonable expectation of privacy protection" will therefore be used, when appropriate, in the rest of this article.
Finally, and relatedly, it should be stressed that a claimant seeking to establish a reasonable expectation of privacy (or of privacy
protection) does not need to establish that he or she had an actual expectation that his or her privacy would be respected in the
situation in question. As Barendt has pointed out, the claimant might not have turned his or her mind to the question or be too
young to have an *L.Q.R. 656 opinion on the matter.19 If, as is being argued here, the reasonable expectation of privacy test
is a normative enquiry into what privacy protection a claimant is entitled to then the claimant’s contemporaneous expectations
should not be determinative. Rather courts should be concerned with whether, at the time of the hearing, the claimant is entitled
to expect society, acting through the law, to step in to protect his or her privacy interests. This does not necessarily depend on
what the claimant was or was not thinking about at the time of the alleged intrusion.
2. The reasonable expectation of privacy protection test is a contextual enquiry

The second preliminary point about the operation of the reasonable expectation of privacy test is that it is not an enquiry
made in the ether. Rather, courts have made it clear that it is about how reasonable people would respond to the particular
disclosure, observation or exposure of the particular information or activity at issue in the case. This rightly recognises that
subtle differences in the claimant’s location, activity, or the manner in which the information or activity was exposed can alter
both the impact that the defendant’s actions have upon the claimant and social mores in respect of them. So, for example,
English courts have held that a person might have a reasonable expectation of privacy protection in respect of publication of a
photograph of a particular activity but not in respect of a description of the same20 or in respect of mass disclosure of, say, his
or her marital infidelity but not more limited disclosure of that same information to his or her spouse and/or children.21 Indeed,
courts in the Human Rights Act 1998 (HRA) context have gone so far as to say that a person might have a reasonable expectation
of privacy protection in respect of surveillance or publication undertaken, say, for private profit but not if that very same activity
is watched or disseminated for the purposes of law enforcement.22 This is why questions that one might sometimes associate
with the public interest defence or balancing of competing interests can also have a bearing on the reasonable expectation of
privacy protection test.
Many of the factors which the Court of Appeal in Murray identified as bearing on a claimant’s reasonable expectation of
privacy—including the "nature and purpose of the intrusion", "the attributes of the claimant" and the "circumstances in which
and the purposes for which the information came into the hands of the publisher"—direct courts towards this detailed contextual
enquiry into the exact *L.Q.R. 657 nature of the claimant’s objection. As Lord Sumption said in the HRA context, in R. (on
the application of Catt) v Commissioner of Police of the Metropolis , the question is whether the claimant had a "reasonable
expectation in the relevant respect". 23
All this means that, although it is useful to use the epithet "reasonable expectation of privacy" (or "reasonable expectation
of privacy protection") to describe the test applied in misuse of private information cases, what courts are actually asking in
any given case is whether the claimant had a reasonable expectation that he or she would be protected against the particular
exposure which occurred in that case. They do not simply ask, then, whether a claimant has a reasonable expectation of privacy
protection in respect of his or her sexual life but whether the claimant has a reasonable expectation of privacy not to have
photographs of him or her engaging in intimate sexual activity uploaded to the internet. And the question is not just whether
health information is private but whether disclosure of, say, one’s battle with depression should have been disclosed to one’s
employer. It is unsurprising in light of this that courts in privacy cases almost always begin their analysis with a detailed
articulation of what exactly happened, how the information or material in question was acquired, the circumstances in which
it was published or communicated, the impact on the claimant and such like.24 All of this information is essential to their
assessment of whether reasonable people would expect the claimant’s privacy to be legally protected in the circumstances.

IV. The First Principle: Societal Attitudes to the Information or Activity in Question
So, how should this contextual, normative enquiry into the claimant’s reasonable expectation of privacy protection be applied?
As outlined above, there are two inter-related ways of showing that information or an activity is private for the purposes of the
misuse of private information action. The claimant-focused route, which examines the signals the claimant used to communicate
that he or she regarded the information or activity as private will be discussed below. This section is about the society-focused
route to satisfying the test. This part of the framework focuses on societal attitudes to the activity or information in question; on
whether reasonable people would regard the matter as private vis-à-vis those to whom it was exposed. Although both parts of
the framework are designed to reflect social mores about when information should be private, it is the first route which examines
what reasonable people would think about the information or activity in question in general whilst the second route explores
social mores in respect of the privacy signals which the claimant relied on. *L.Q.R. 658 25
Although courts have yet to articulate this societal-attitudes principle expressly, Eady J. neatly summarised its application in
X & Y v Persons Unknown when he asked, in the course of applying the reasonable expectation of privacy test, whether the
case concerned "the sort of information which most people would reasonably expect to be able to keep to themselves". 26 The
significance of the nature of the information or the activity in question to the reasonable expectation of privacy enquiry has
also been recognised in numerous other cases. These include Hutcheson (formerly known as KGM) v News Group Newspapers
Ltd where the Court of Appeal said "the nature of the information requires careful consideration"27 and Murray , in which
"the nature of the activity in which the claimant was engaged" was included on the list of factors which bear on reasonable
expectations of privacy.28 Societal attitudes to the revelation of the information or activity at issue have also clearly borne
on courts’ attempts to identify particular types of information or activities which are "obviously" or "inherently" private.29 In
Campbell , for example, Baroness Hale of Richmond stressed that the defendant’s disclosures related to the claimant’s "health
and treatment for ill-health", a type of information which "has always been accepted … is both private and confidential". 30
Lord Hope also cited with approval Gleeson C.J.’s suggestion in the Australian High Court that some types of information or
activity can be recognised as private by reference to contemporary moral standards:
"Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may
be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of
morals and behaviour, would understand to be meant to be unobserved." 31
European Court of Human Rights judgments on the scope of the art.8 right to respect for private life also feed into this social
normative perspective. For example, Baroness Hale referred to ECtHR judgments in support of her above-mentioned conclusion
in Campbell that health information is private32 and the Court of Appeal in Weller , having observed that the "starting point" for
analysis was where the activity depicted in the photograph happened and the nature of the activity, stressed that: *L.Q.R. 659
"it was a family activity which belongs to that part of life which is protected by the broader right of personal autonomy recognised
in the case law of the Strasbourg court". 33
So, although the societal-attitudes principle itself has not yet been articulated, the reasoning which underpins it is widely
accepted and uncontroversial. Indeed, it seems obvious that once an action for breach of privacy has been recognised it should
reflect social mores about what should and should not be regarded as private. As Tipping J. said in the leading New Zealand
case of Hosking v Runting, the word "reasonableness" plainly imports into the reasonable expectation of privacy test an enquiry
into "contemporary societal values" in respect of the matter at hand.34 And it is intuitively right that a claimant should be held
to have a reasonable expectation of privacy if most reasonable people would agree that the matter was private in the particular
circumstances of the case.
Courts’ attempts to identify categories of information or activities which reasonable people usually regard as private inform
the operation of this societal-attitudes principle. Although the subjective nature of the privacy interest makes it problematic to
rely on categories when looking for a theoretical definition of the privacy interest,35 at a doctrinal level categories can provide
readily-understandable guidance about the sorts of information or activity that reasonable people are likely to regard as private.36
This in turn enhances predictability, especially once (as in England and Wales) there is a significant body of case law suggesting
what the categories might be. Detailed discussion of the content of these categories of probably-private information or activities

will not be undertaken in this article, the main aim of which is rather to show how claimant-focused principles fit into a wider
framework for determining when there is a reasonable expectation of privacy. It can be said, however, that seven categories
of usually-private information or activity can be identified from within existing misuse of private information case law. They
arise where information or activities relate to: (i) the appearance or workings of the physical body (including matters relating
to health, bodily functions, and nakedness); (ii) to sexual encounters or activity; (iii) to the intimate details of one’s personal
relationships; (iv) to the intimacies of one’s family and/or domestic life; (v) to the experience of trauma, grief or strong emotion;
(vi) to the inner workings of one’s mind (including strong emotion and the content of fears, fantasies, dreams); and (vii) to
detailed patterns of one’s daily life (as would be observed, for example, as a result of systematic surveillance). 37 A matter
which falls within one of these categories will—subject *L.Q.R. 660 to the point made above about needing to factor in the
exact nature and extent of the observation, disclosure or exposure—be more likely to be regarded by most reasonable people as
private and hence to satisfy this first route to establishing a reasonable expectation of privacy protection. And the more squarely
a matter relates to the core interest the category is designed to protect or the more categories to which it squarely relates, the
more strongly social mores will support this conclusion.
It should be briefly noted, however, that if categorisation is going to be an effective means of determining what society usually
regards as private, it needs to be approached carefully. In particular, courts need to articulate clearly the interest at the heart of
each category of probably-private information; they need to set out clearly the reasons why the information or activities in each
of the categories are usually considered private. Consider, for example, the category relating to the appearance or workings
of the physical body, i.e. matters relating to health, nakedness, or bodily functions. Given that the body is involved in most
human activities, there are numerous things which could potentially be said to fall within this category including, for example,
one’s appearance as one walks down the street or the fact that one has a cold. But, as Daniel Solove suggests, this part of
the privacy interest is really about the "primal aspects" of individuals’ lives, i.e. matters that are "physical, instinctual, and
necessary" and which cause embarrassment and humiliation if exposed.38 Once this is recognised, it becomes plain that only
"primal" or "mechanical" bodily functions like toileting, physical trauma and injury, nudity, sex or the mechanical workings of
the body should fall into the "physical body" category. It then, in turn, becomes clear that one’s appearance as one walks down
the street or the fact that one has a cold does not fit into the physical body category at all. Therefore, disclosure of those matters
is unlikely to satisfy the societal-attitudes route to establishing a reasonable expectation of privacy protection.39 Categories,
whilst useful then, need to be approached with care.
V. The Second Principle: the Claimant’s Privacy Signals

The question of whether reasonable people would regard the information or activity in issue as private is, whilst important, just
one part of the reasonable expectation of privacy protection equation. The central point of this article is to show that there is also
a second route to establishing a reasonable expectation of privacy protection; one based on the claimant’s own privacy signals in
respect of the material in question. Under this principle, a claimant can establish a reasonable expectation of privacy protection
by showing that he or she made it clear to the defendant that disclosure or observation of the information or activity in question
was unwelcome and that society would usually expect such a signal to be respected. Although in practice it is unlikely to be
relied on as often as the societal-attitudes principle, the *L.Q.R. 661 signals principle offers an alternative way of establishing
a reasonable expectation of privacy protection. The claimant’s reliance on socially-endorsed signals can therefore be enough
on its own to found a reasonable expectation of privacy protection even if reasonable people would not be concerned about
the exposure in question. In other situations, privacy signals will strengthen the hand of a claimant who has already shown—
under the first part of the privacy framework—that social mores support his or her reasonable expectation of privacy protection
claim.40 All this is consistent with both theoretical conceptions of privacy and with English misuse of private information
precedent. It just has not been articulated yet.
To begin with theoretical conceptions of privacy, this focus on the claimant’s own privacy-seeking signals is consistent with the
widely-accepted idea that privacy is at its heart a subjective interest; that "private" means different things to different people.
I might be quite happy to blog about matters—my medical history, finances or relationships—which you would not tell even
your closest friends. Privacy theorists have consistently recognised this, often defining privacy in terms of an individual’s own
control over, choice about or desire for access.41 Privacy is therefore seen as the "ability to control who has access to us and
to information about us" or "freedom from unwanted access" rather than as a right to be protected against access to specified
types of information or activity.42

People communicate their subjective choices about which aspects of themselves they wish to keep private though the use of
signals or "barriers". As Kirsty Hughes argues (drawing on the work of sociologist Irving Altman and philosopher Samuel
Rickless), these barriers include physical and behavioural signals that access is not welcome:
"Physical barriers include things such as walls, doors, hedges, lockers and safes. Behavioural barriers are means by which
we seek to communicate to others that we do not want them to access us. They may include verbal or non-verbal forms of
communication: we may tell others that we want privacy; or we may use our body language to communicate this desire, for
example by turning our bodies away from others. Thus, physical and behavioural barriers are means by which we can seek
privacy." 43
In other words, physical and behavioural signals are the means by which we communicate to others the subjective choices
outlined above. These privacy signals *L.Q.R. 662 need not necessarily involve physical interventions like encryption,
clothing, walls or keys. They can be as subtle as a turned back or a hushed voice or as physically ineffectual as a scant bush
or a hand put up against a photographer. Nor does it matter that the claimant did not use every privacy-enhancing measure
which might have been available to him or her. A colleague who picks up your mobile phone is not at liberty to trawl through
your messages and photographs simply because you do not have them password protected; the act of storing the material on
a private device is signal enough that it was not intended for his or her observation. That said, the fact that someone wants
something to be private does not automatically make it legally, or even morally, so;44 this article is about the wide range of
considerations courts have to take into account when determining whether or not that is the case. Social mores dictate, however,
that our physical or behavioural signals be respected most of the time.45 For example, it is unacceptable in contemporary British
society—often criminally so—to hack into someone’s emails, film over a cubicle wall, install a bugging device in a bedroom
or break into someone’s home.46
1. Privacy signals in the misuse of private information case law

So how does the privacy signals principle manifest in the misuse of private information case law? Although not always given
the prominence it deserves, the idea that courts take account of the claimant’s privacy signals when considering reasonable
expectations of privacy is already embedded in the English misuse of private information authority. Indeed, questions about what
the defendant knew or ought to have known about the confidential nature of the information were at the heart of the confidence
action from which the misuse of private information action emerged. As Lord Goff of Chieveley explained in Attorney General
v Guardian Newspapers Ltd :47
"a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances
where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the
circumstances that he should be precluded from disclosing the information to others."
This requirement in turn brought into consideration the signals that the claimant gave about how he or she regarded the
information. For example, in Creation Records v News Group Newspapers Ltd 48 and Shelley Films Ltd v Rex Features Ltd
,49 the defendants were liable for taking unauthorised photographs of a photograph shoot and film set respectively (even in the
absence of a pre-existing *L.Q.R. 663 relationship) because signage and tight security made it clear that photography was not
permitted. In other words, the fact that the claimant made it clear that photography was unwelcome helped create an obligation
of confidence in respect of it. This is consistent with the Court of Appeal’s statement in the more recent case of Tchenguiz v
Imerman that the "essence" of the confidentiality right is the ability to:
"choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the
protection of confidence". 50
This focus on the defendant’s knowledge of the claimant’s privacy choices has been carried into the misuse of private information
action. Thus, in a passage typical of early formulations of the privacy action, Brooke L.J. said about publication of unauthorised
photographs of the claimants’ wedding in Douglas v Hello! :51
"if on some private occasion the prospective claimants make it clear, expressly or impliedly, that no photographic images are
to be taken of them, then all those who are present will be bound by the obligations of confidence created by their knowledge
(or imputed knowledge) of this restriction."

Courts since then have also stressed the desirability of consistency between the breach of confidence and privacy actions and the
continued relevance of traditional breach of confidence factors to the reasonable expectation of privacy enquiry.52 This means
that, if concern about signals forms part of the breach of confidence action, it will also inform development of the privacy tort.
Consistently with that, the Court of Appeal said in Associated Newspapers Ltd v HRH Prince of Wales :53
"It is not easy in this case, as in many others, when concluding that information is private to identify the extent to which this
is because of the nature of the information, the form in which it is conveyed and the fact that the person disclosing it was in
a confidential relationship with the person to whom it relates. Usually, as here, these factors form an interdependent amalgam
of circumstances."
In modern case law, the privacy signals principle underpins two of the factors identified in Murray , "the absence of consent
and whether it was known or could be inferred" and "the circumstances in which the information came into the hands of the
publisher". 54 In the first instance decision in Weller , Dingemans J. held—echoing the language of the early misuse of private
information cases—that *L.Q.R. 664 these two factors made it important to know what the publishers knew, or ought to have
known, about the claimant’s father’s objection to the fact that someone was taking photographs of his children.55 The Court of
Appeal agreed that when it came to the publication of photographs of children, the parents’ "lack of consent, if it was known
to the publishers, will carry particular weight". 56 What the claimant knew about the defendant’s wishes was therefore seen as
central to the application of these factors.
Courts have also recognised the importance of privacy signals in cases concerning the courting of publicity. Although courts now
rarely ascribe to the view that voluntarily publicising one aspect of one’s private life gives others a carte blanche to report on
any aspect of that zone of life in the future,57 the claimant’s own behaviour is still relevant to his or her reasonable expectations
of privacy protection. In particular, the fact that the public figure has declined to court publicity about his or her private or
family life can strengthen his or her claim to a reasonable expectation of privacy protection. Thus, in McKennitt v Ash , the
Court of Appeal said that the first instance judge "rightly" saw as a matter of "great importance" the fact that the claimant had,
unusually for a well-known singer, guarded her privacy very carefully.58 The fact that the parents had not "courted publicity"
for the children photographed in Weller and Murray also weighed in favour of a reasonable expectation of privacy in the
circumstances in question.59 Conversely, in AAA v Associated Newspapers Ltd , the same court held that the fact that the infant
claimant’s mother was willing to reveal to strangers the identity of the child’s father (a prominent married politician), to allow
others publicly to "entertain speculation" about it and generally to display "ambivalence" about the secrecy of the information
meant that the claimant’s reasonable expectation of privacy in respect of that information was weakened.60 Thus, as was said
in Hutcheson (formerly known as KGM) v News Group Ltd , the "claimant’s own attitude towards the maintaining of privacy
or secrecy and the importance he seems to attach to it" is an important factor in determining whether he or she has a reasonable
expectation of privacy.61 Privacy signals, then, matter.
2. The explanatory power of the privacy signals principle

To return to the central point of this discussion, these considerations—whether the claimant consented to access, whether he
or she courted or eschewed publicity, and the circumstances in which information was shared—should be seen as examples of
an as-yet unarticulated privacy signals principle at play. This principle *L.Q.R. 665 recognises that a claimant’s reasonable
expectation of privacy protection will depend in part on his or her own behaviour or signals in respect of the information or
activity in question. Clearly signalling that one wants privacy therefore provides one way of establishing a privacy interest.62
This new privacy-signals principle provides a conceptual rationale for many of the factors which courts routinely take into
account when ascertaining a claimant’s privacy interests. This section will show that, in addition to those discussed above, these
include the claimant’s location, his or her age, the way information is communicated or stored, surreptitiousness on the part of
the defendant, and the extent of the defendant’s knowledge about the claimant’s expectations. The principle also explains how
those factors should be developed in future cases. The signals principle, therefore, has considerable explanatory power.
i) Location
The place where an activity occurs has consistently been held to be of central importance by courts considering whether a
claimant has a reasonable expectation of privacy in the misuse of private information case law. In Murray , for example, Sir

Anthony Clarke M.R. specifically identified "the place at which [the claimant’s activity] was happening" as a factor contributing
to whether the claimant has a reasonable expectation of privacy. In numerous other cases courts have stressed, on the one
hand, the limited privacy expectations usually enjoyed in public places63 and on the other, the "the traditional sanctity accorded
to hearth and home". 64 The privacy signals principle—the idea that a reasonable expectation of privacy protection can be
established by the signals that he or she gave about whether access was welcome—helps explain why this factor looms so large
in the privacy case law.
The courts’ approach to different types of location is often expressed in terms of retreat (when talking about protected spaces) or
the voluntary acceptance of scrutiny (when talking about public space). For example, Thomas J. explained in the New Zealand
Supreme Court case of Brooker v Police:65
"The home is a place where the well-being of the occupants can be nurtured and protected and the peace and quiet provided
within the four outer walls (or fences) enjoyed by the occupants without unwanted intrusions. It provides its occupants with a
sanctuary, a place to retreat or repair to in order to escape from the tensions and tribulations of the daily world. *L.Q.R. 666 "
This echoes reference to the "sanctity" of the home in McKennitt v Ash 66 and the language of early privacy case Prince
Albert v Strange , in which Knight Bruce V-C described the home as "a word hitherto sacred among us". 67 In contrast, when
courts discuss the reduced privacy rights people enjoy in public places they often use the language of agreement or assent. For
example, in a passage often cited by English courts, the ECtHR held in PG v United Kingdom that there are "occasions when
people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner"
and that this in turn will affect their reasonable expectations of privacy.68 Similarly, in Campbell , Lord Hoffmann said that
people who go out in public must "accept" that they might be seen or photographed without their consent.69 This, he says, is
"[p]art of the price we pay for living in an organised society". 70
These are examples of the privacy signals principle at play. The fact that an activity is conducted in a particular place, these
courts say, sends a signal about how the claimant feels—or should feel—about others observing it. If we engage in an activity
in a public place knowing that it is likely to be seen and/or recorded by others, we accept—and therefore implicitly signal to
others—that observation or recording of it is acceptable. When we go into our homes, toilet cubicles or changing rooms, we
signal the opposite. These are well-known places of retreat—zones where we can disrobe, engage in bodily functions, drop the
mask—and by entering them we strongly signal that we do not want uninvited outsiders to follow us. Our location therefore
has embedded within it strong behavioural and/or physical signals about how we feel about outside access.
Seeing location in this way (i.e. as a manifestation of individual choice about access) helps us to understand the role that this
factor should play when determining whether a claimant has a reasonable expectation of privacy protection. First, it explains
why what happens in an inaccessible place will be private even if it is not particularly intimate or interesting. I am not allowed
to film you in your bedroom even if you are just sitting reading a book because your location sends a strong socially-sanctioned
message my observation is unwelcome. Secondly, the privacy-signals principle helps show that "public" and "private" should
not be all-or-nothing concepts. Instead, there are degrees of public; the degrees being determined in part by the signals the
claimant gave about whether he or she wanted to be the subject of the defendant’s attention including through body language,
manner of dress, behaviour, and the precise nature of his or her "public" location. *L.Q.R. 667 71
Thirdly, the signals principle highlights the importance of considering voluntariness in our assessment of location. If, as the
courts suggest, the right of others to observe or record what a person does in public is predicated on the claimant’s assumed
assent to observation, then a different approach is needed if the claimant was unwillingly forced to experience something that
would usually be regarded as private in that space. It is difficult to argue that a person who is filmed after being struck by a car,
suffering a heart attack or having his or her clothes blown off by a terrorist bomb (all leading to the revelation of things which
would usually be private) has implicitly consented to the dissemination of images simply by virtue of entering public space. On
the contrary, courts have often recognised that people in these situations are entitled to legal privacy protection.72
The signals principle—and the need for voluntariness which flows from it—helps explain why this is so. Take the example of
two spectators at a televised cricket match. The first spectator is filmed voluntarily streaking semi-naked across the pitch during
play whilst the second is filmed at the same event semi-naked after she collapsed and had her clothes removed by paramedics.
The first woman has sent a clear signal to the world that she is happy for her body to be seen and as a result, is unlikely to have
a reasonable expectation of privacy protection in respect of broadcast of the footage (matters of decency aside). The second

woman has sent no such message. The exposure of her body was the unfortunate consequence of health trauma that was beyond
her control. It follows that even though both incidents occurred at the same place and involved similar levels of exposure of the
body, the second woman would have a reasonable expectation of privacy protection where the first would not. In the case of
the first woman, the public nakedness was the manifestation of a choice she had made about the exposure of her body; in the
second, it was not. The signals principle helps show then why the two women need to be treated differently.
Once all of this is recognised—i.e. that because location is a signal about one’s openness to access by others, courts need
carefully to consider issues of voluntariness—it becomes clear that questions need to be asked about how far distinctions based
on voluntariness should extend. It is arguable, for example, that the protection accorded to a claimant who suffers a sudden
shock or trauma in public should also extend to claimants who retain their decision-making capacity but in reality have no
real choice but to do something intimate or traumatic in public. It is difficult to argue, for example, that a person who enters
public space to attend a funeral, a fertility clinic or to access mental health services is—by virtue of his or her public location
—voluntarily accepting widespread scrutiny of his or her health or emotional state. Privacy protection should perhaps also
extend to claimants who clearly fail to appreciate the public nature of their environment. Leaving aside questions about the
defendant’s knowledge (discussed below), it is difficult to argue that a couple who, say, engage in sexual activity under the
evidently mistaken impression that no-one could see through a mirror-glass window *L.Q.R. 668 at night time are, by virtue
of their "public" location, signalling that a person can upload pictures of that activity on to the internet.73
ii) Children and others who lack capacity

The idea that reasonable expectations of privacy protection are determined in part by the individual’s privacy signals in respect
of the information or activity in question also helps us to unpack the courts’ special treatment of children. Courts have repeatedly
held that there will be circumstances in which a child can have a reasonable expectation of privacy where an adult would not.
Thus, in Murray it was held that "in the case of a child the position is somewhat different from that of an adult"74 and in Weller
, it was explained that although the same "broad approach" must be applied to both children and adults, special considerations
apply when applying the Murray factors to children.75 Those considerations include the fact that the reasonable expectation
of privacy test "cannot be applied literally to a very young child who has no obvious sensitivity to any invasion of privacy"
because he or she lacks capacity to exercise autonomy;76 that children do not "choose to be in a particular place or interact in
a private or public way with other people" and, therefore, unlike adults, cannot reasonably be said to "lay themselves open to
the possibility of their privacy being invaded" when they are in public;77 and that they cannot give or withhold consent.78 As a
result, when it comes to considering the impact of publication upon the child, the court needs to have in mind the "best interests
of the child" and the way his or her upbringing has been conducted.79
It is striking that all of these special considerations relate in some way to the child claimant’s inability to form or signal a
desire for privacy. They are too young, say the courts, to form a view about inaccessibility, too young to understand or protect
themselves against potential privacy loss in public places, and too young to give or withhold consent to publicity. In other words,
because children are unable to use physical and behavioural signals to protect themselves, the court steps in to do it for them.
This says two things about the application of the privacy signals principle. First, the fact that the child claimant’s inability to
use physical and behavioural privacy signals requires a recalibration of the reasonable expectation of privacy protection test
reinforces the importance such signals usually have in the application of that test. The reason that a new approach is needed
when children go into public, for example, is because usually going into public is taken as a signal from the claimant that
external observation is acceptable. Secondly, recognising that cases involving children are a manifestation of a broader privacy
*L.Q.R. 669 signals principle helps us to see how the reasoning from those cases should be applied in comparable situations.
In particular, once it is recognised that the special position of children rests on their lack of capacity to form or signal privacy
desires, it becomes obvious that similar protection should be accorded to those who lack that decision-making capacity for
other reasons. People who are unable to form or signal their views about privacy because they are, say, unconscious, severely
mentally impaired or suffering severe emotional or physical trauma, should enjoy similar protections.80
iii) The way material is stored or communicated

Courts have consistently held that material written in a diary, stored on a personal laptop, or transmitted via non-public
telecommunication systems should be regarded as private. For example, in AMP v Persons Unknown , Ramsey J. concluded
that information stored on a person’s mobile phone would "generally be information for which there would be a reasonable
expectation of privacy"81 and in Gulati v MGN Ltd , Mann J. held that publication of material stored on a person’s voicemail

was actionable irrespective of the subject matter of the messages.82 This echoes the Court of Appeal’s conclusion in Associated
Newspapers Ltd v HRH Prince of Wales that the fact that the material in question was contained in a journal written in the
Prince’s "own hand" and only seen by people who had been expressly told that they were personal and confidential made it
"perfectly obvious" that the information was both private and confidential.83
This is another example of the signals principle in operation. These dicta make it clear that irrespective of its precise subject
matter, information can be private because of the way it is stored; because of the way the claimant treated it. By storing or
transmitting material in a diary, on a personal digital device or on an inaccessible messaging system, the individual sends a clear
socially-endorsed signal that it is not for public consumption. Ignoring the signals, the courts say, is unacceptable.
iv) Surreptitious observation

The privacy signals principle also explains why English courts consistently take a dim view of surreptitious observation. In
Campbell , for example, although Baroness Hale said that surreptitious acquisition is not enough on its own to make *L.Q.R.
670 the information contained in a photograph confidential,84 the fact that the photographs were "covertly taken" bore heavily
on both her conclusion that the photographs were harmful and on Lord Hope’s conclusion that publication would be offensive
to a reasonable person of ordinary sensibilities.85 In Murray , the court also stressed that the fact that the photographs were
taken "deliberately, in secret and with a view to their subsequent publication … for profit, no doubt in the knowledge that the
parents would have objected to them" when concluding that the claimant had reasonable expectation of privacy.86
Courts have made it clear that this dislike of surreptitious filming is based on the fact that the subject is deliberately prevented
from taking steps to avoid the camera’s gaze. In R. v Broadcasting Standards Commission Ex p. British Broadcasting
Corporation , for example, Lord Woolf M.R. said that clandestine filming in the public area of an electronic goods store could
add an "additional ingredient" to a privacy claim under broadcasting standards regulation because it "prevents those who are
being filmed from taking any action to prevent what they are doing being filmed". 87 This reasoning is entirely consistent
with the privacy signals principle. If, as is being argued here, privacy signals provide one of two key routes to establishing a
reasonable expectation of privacy protection, it follows that hiding the fact that observation is occurring—and hence that such
privacy signals are necessary—will have a seriously detrimental impact on an individual’s privacy rights. As the philosopher
Stanley Benn has said, the observed person "may be in a fool’s paradise or a fool’s hell; either way, [the observer] is making
a fool of him". 88
v) The defendant’s knowledge

Finally, courts have consistently held that liability for misuse of private information should only be imposed if the defendant
knew or ought to have known that the claimant had a reasonable expectation of privacy. As Baroness Hale said in Campbell :89
"the exercise of balancing art.8 and art.10 may begin when the person publishing the information knows or ought to know that
there is a reasonable expectation that the information in question will be kept confidential. *L.Q.R. 671 "
The privacy signals principle—and its relationship with the societal attitudes principle—helps explain when a defendant will
be assumed to know that the claimant had a reasonable expectation of privacy protection and when actual knowledge will be
required.
The framework set out in this article makes it clear, first, that there are two situations in which knowledge of the claimant’s
reasonable expectations of privacy protection should be assumed. The first situation is where the activity or information in
question is something which reasonable people would regard as private; in other words, where the first of the two principles
discussed in this article is satisfied. A defendant ought to know, for example, that in the absence of indications to the contrary,
the claimant would regard the appearance of his or her naked body or health information as private. It follows that if the claimant
is arguing that something is private because reasonable people would regard it as so (i.e. under the first part of the two-part
framework) then the defendant’s knowledge is unlikely to be an issue. Secondly, to return to privacy signals, a defendant will be
assumed to know that there are certain physical and behavioural signals which society expects will be respected. A defendant
ought to know, for example, that storing something on a personal mobile phone, entering a changing room or covering one’s
body with clothing are strong socially-endorsed signals that observation is unwelcome. As a result, he or she will be assumed
to know about privacy expectations which are founded upon those signals.

Things are different, however, if a claimant is relying on his or her use of privacy signals to establish a reasonable expectation of
privacy protection in respect of material which most people would be happy to share. The defendant in these types of situations
should be liable for breaching the claimant’s privacy only if he or she actually knew, or should have found out, about the signals
in question. Consider, for example, dissemination of an image of the uncovered head of a man who usually wears a turban.
If the publisher disseminated the image knowing that the claimant usually wore the head covering then, on the basis of the
privacy signals principle, the claimant might well be able to establish a reasonable expectation of privacy in respect of the
image. But if the defendant published the image without knowing (or having any reason to know) that the claimant usually wore
the turban, it would be unreasonable to impose privacy liability upon the defendant. Given that, in the absence of indications
to the contrary, exposure of the head is acceptable in modern British society, the defendant would have no reason to know that
the claimant desired privacy in the circumstances in question.90 As the Court of Appeal said in the breach of confidence case
of Napier v Pressdram :
"Freedom to report the truth … would be unduly eroded if the law of confidentiality were to prevent a person from reporting
facts which a reasonable person in his position would not perceive to be confidential". 91
The same principle, it is suggested, should apply in the misuse of private information tort. *L.Q.R. 672
Defendants should, however, be required to make appropriate enquiries about the circumstances in which images or information
which have been passed to them by third parties were obtained.92 It should not be good enough to adopt a "no questions asked"
policy if the usual practices of the third party (or some other consideration) made it clear that questions in fact needed to be asked.
VI. How the Two Privacy Principles Work Together

So, this article maintains that there exist within the English misuse of private information case law two independent (but
interconnected) ways of establishing a reasonable expectation of privacy protection. The first way is to show that most
reasonable people would regard the information or activity as private. The second way—which is less widely-recognised—is
to show that the claimant used socially-sanctioned signals to let the defendant know that access to the information or activity in
question was unwelcome. The principal aim of this framework is to provide doctrinal coherence to a currently diffuse, multi-
factorial approach to the reasonable expectation of privacy test. But it is also hoped that the framework can be of some practical
use. This final section will therefore show how these two parts of the framework work together to solve practical privacy
problems.
The first thing to ask when applying the framework set out in this article to a particular set of facts is whether reasonable people
would agree that the claimant should be protected against the exposure of the information or material in question, i.e. whether
the societal-attitudes principle is satisfied. This includes consideration of whether the information or activity falls into one or
more of the established categories of usually-private information and if so, into how many and how squarely. Once that question
has been answered—and regardless of the conclusion—decision-makers turn to determine what, if any, signals the claimant
gave that he or she regarded the information or activity in question as private. If there were socially-recognised signals used
—if, for example, the claimant went into his or her house, used a private email account, or held up a hand to the camera—
then this will provide an independent ground for establishing a reasonable expectation of privacy protection. Thus, even if
the societal-attitudes principle was not established, the claimant would still have a prima facie privacy claim. Alternatively,
if the societal-attitudes principle was established, the claimant’s reliance on socially-recognised signals would strengthen his
or her reasonable expectation of privacy protection. The converse might also apply—the fact that a claimant plainly signalled
that he or she did not regard the matter in question as private (for example, by removing his or her clothes in a public place
or voluntarily publishing intimate personal information) would usually weaken a reasonable expectation of privacy protection
which would otherwise be recognised.
In the most straightforward cases, the result of both the societal and claimant-focused enquiries will point in the same direction.
If, for example, the claim concerned the widespread dissemination of a surreptitiously-taken video of the claimant in the shower
then reasonable people’s attitudes to the subject matter of the film (i.e. the appearance of the nude physical body) and the
claimant’s *L.Q.R. 673 physical and behavioural signals in respect of it (going into the bathroom and closing the door) would
strongly support the recognition of a reasonable expectation of privacy protection. The fact that the breach took a particularly
intrusive form—dissemination of a recording which allowed others to see the claimant’s naked body for themselves—would
strengthen this conclusion. Conversely, a person would have very limited expectations of privacy protection if he or she chose to
blog publicly (relevant to signals about access) about anodyne events in his or her life (relevant to the nature of the information
or activity).

In other situations, one or other of the two questions will assume greater importance. For example, if a defendant uploaded to
the internet footage of a couple willingly engaging in sexual activity on a busy public street, the nature of the activity would be
all-important. Given that the couple had voluntarily dispensed with the physical and behavioural barriers people usually rely on
to keep such activity from view, only the inherently private nature of sexual activity (combined with the particularly intrusive
nature of the publicity) could support any privacy claim.93 Conversely, if a hacker intercepts your voicemails but only hears
you telling your flatmate what time you will be home from work then, because it is anodyne, the nature of the information
would not support a reasonable expectation of privacy protection claim. Rather, it is the hacker’s disregard for the privacy of
your voicemail—for your signals that outside access was unwelcome—that lies at the heart of your reasonable expectation of
privacy protection.94 The claimant’s privacy signals are therefore vital to establishing liability.
This hacker example is relatively straightforward but often the assessment of the impact of the claimant’s privacy signals will
be more complex. Consider, for example, a YouTube clip showing a woman relieving herself behind the bushes in a remote
public place. The nature of the activity is once again important here. Because this is an activity which reasonable people regard
as private, the woman’s claim under the first limb of the framework would be strong (particularly in respect of such widespread
dissemination of a visual recording). But a nuanced consideration of barriers is also needed to ensure that the relative weakness
of the claimant’s privacy signals (i.e. ducking behind a bush rather than using a toilet cubicle) did not undermine her privacy
expectations when it should not. Two factors would be relevant here. First, although the claimant’s privacy signals were not as
strong as if she had entered a toilet cubicle or used the bathroom at home, the act of ducking behind a bush was nonetheless
a clear physical and behavioural signal that she did not wish to be observed. Secondly, voluntariness must be considered. If
there was no toilet available to the claimant then her failure to use one should carry limited weight; as discussed above, the fact
that a claimant does something in public should be seen as a privacy-eschewing signal only if she actually had some choice
in the matter. *L.Q.R. 674
Finally, it should be acknowledged that the relationship between the signals principle and societal-attitudes principle is more
complex where the subject of the privacy intrusion is a child or an adult lacking capacity. Two questions immediately arise:
whose signals, if anyone’s, do we rely on in these situations and what should the law do if a parent or caregiver courts publicity
for the incompetent individual? Full consideration of these issues is beyond the scope of this article but one option would be
to hold that the signals principle can operate to expand privacy rights in these situations but not to take them away. So, whilst
a caregiver’s attempts to prevent the media from filming an unconscious person as he or she was moved into an ambulance
might strengthen the patient’s reasonable expectation of privacy protection, an invitation from that same caregiver to film and
broadcast the patient unconscious in hospital would not reduce his or her privacy rights. The patient in the second scenario
would have a reasonable expectation of privacy protection by virtue of the societal-attitudes principle (since most reasonable
people would think that a person lying unconscious in hospital should be protected from filming) and the caregiver should not
be able to undermine that. This same approach could perhaps also be applied to parents raising their children in the public eye.
VII. Conclusion
So, the two-part conceptualisation offered in this article provides a principled way to answer the most important question
in any privacy claim: when will an activity or information be private. The basis for this framework lies in two hitherto
unarticulated principles embedded within English misuse of private information case law. The first is concerned with the
attitudes of reasonable people to the matter in question, the second with the claimant’s own privacy signals. Once recognised,
these principles provide the tools needed to analyse any potential misuse of private information claim and indeed, the application
of the reasonable expectation of privacy test in a variety of other contexts. This in turn helps us move towards more predictable
and conceptually robust ways of determining what is private both in English misuse of private information case law and beyond.
N.A. Moreham
Associate Professor of Law
Victoria University of Wellington

Footnotes
1 Weller v Associated
Newspapers Ltd [2015] EWCA
Civ 1176; [2016] 1 W.L.R.
1541 at [58].
2 [2004] UKHL 22; [2004] 2
A.C. 457 at [21]. See also
Baroness Hale at [134] and
Lord Hope at [96]. Versions
of the reasonable expectation
of privacy test are relied on
to determine liability under
privacy torts in New Zealand,
Canada and the United States
(see Moreham and Warby
(eds), The Law of Privacy and
the Media, 3rd edn (Oxford:
Oxford University Press,
2016), Ch.3).
3 See e.g., Campbell [2004]
2 A.C. 457 at [134] per
Baroness Hale.
4 [2008] EWCA Civ 446;
[2009] Ch. 481 at [36]. This
approach has been endorsed
many times since, including
by the Supreme Court in the
recent case of Re JR38 [2015]
UKSC 42; [2016] A.C. 1131
at [98]. The factors which the
courts apply to the reasonable
expectation of privacy test do
sometimes operate as a kind
of checklist of factors: see
e.g., AMP v Persons Unknown
[2011] EWHC 3454 (TCC);
[2011] Info. T.L.R. 25 at [27].
5 See Pt V below.
6 See Moreham, "Privacy in the
Common Law" (2005) 121
L.Q.R. 628 at 644–645.
7 Barendt would prefer the
approach taken under
the Data Protection Act
1998 of defining "personal
information" expansively to
the one being advocated here:
see, Barendt, "‘A Reasonable
Expectation of Privacy’:
A Coherent or Redundant
Concept?" in Kenyon (ed.),
Comparative Defamation and
Privacy Law (Cambridge:
Cambridge University Press,
2016), at pp.111–114.
8 Other commentators agree.
See Hughes, "A Behavioural
Understanding of Privacy and
its Implications for Privacy
Law" (2012) 75 M.L.R. 806 at
828 (regarding the defendant’s
purpose) and Barendt, "‘A
Reasonable Expectation of
Privacy’: A Coherent or

Redundant Concept?" in
Comparative Defamation
and Privacy Law (2016),
at pp.108–110 (regarding
attributes of the claimant). On
the attributes of the claimant,
see also Ferdinand v MGN
Ltd [2011] EWHC 2454 (QB)
at [56].
9 Barendt agrees. He argues that
the reasonable expectation
of privacy test has become
a "formula" or "ritual
incantation" which, rather than
doing serious analytical work,
operates as the statement
of a conclusion (Barendt,
"‘A Reasonable Expectation
of Privacy’: A Coherent or
Privacy Law (2016), at pp.110
and 114). Unlike this author,
however, Barendt believes that
the test should be abandoned.
10 Campbell v MGN Ltd [2004]
2 A.C. 457 at [24] (emphasis
added).
Newspapers Ltd [2016] 1
W.L.R. 1541 at [20] (emphasis
added).
12 Murray v Express Newspapers
Plc [2009] Ch. 481 at [39]
(emphasis added).
13 955 P.2d 469 (Cal.1998) at
490.
14 Schulman 955 P.2d 469
(Cal.1998) at 490.
15 [2012] UKSC 62; [2013] 2
A.C. 93 at [19] (emphasis
added). Although this
statement is in fact probably
an oblique reference to social
mores in respect of CCTV
recording, taken at face value,
it could be taken to mean that
one cannot have a reasonable
expectation of privacy in
respect of it simply because it
is so common.
16 See further, Moreham,
"Privacy in the Common
Law" (2005) 121 L.Q.R.
628 at 647 and "Recognising
privacy in England and New
Zealand: Campbell v MGN
Ltd [2004] UKHL 22 and
Hosking v Runting" [2004]
C.L.J. 555 at 557; and Hughes,
"A Behavioural Understanding
of Privacy and its Implications
for Privacy Law" (2012) 75
M.L.R. 806 at 814.
17 Although it is beyond the
scope of this article, questions
need to be asked about the
majority’s view that the
reasonable expectation of
privacy test should be relied
on to determine whether a

public law actor has interfered

with a claimant’s right
to "respect for … private
life". The ECtHR has rarely
relied on the test in its art.8
determinations (see Barendt,
"‘A Reasonable Expectation
of Privacy’: A Coherent or
Privacy Law (2016), at p.103),
and as senior English judges
have acknowledged, the right
to private life is much broader
than the right to privacy at
issue in JR38 (see Re JR38
[2016] A.C. 1131 at [37] per
Lord Kerr and R. (on the
application of Countryside
Alliance) v Attorney General
[2007] UKHL 52; [2008] 1
A.C. 719 at [92] per Lord
Rodger).
18 Re JR38 [2016] A.C. 1131 at
[39], [109], [87] and [105],
respectively. Lord Hodge
agreed with Lord Toulson.
See also the Grand Chamber
of the ECtHR’s reference to
a "‘legitimate expectation’
of protection of and respect
for his private life" in Von
Hannover v Germany (No.2)
(40660/08) [2012] ECHR 228
(7 February 2012) GC; (2012)
55 E.H.R.R. 15 at [97]. A
test focusing on reasonable
expectations of privacy
protection is better than
"legitimate expectations of
protection" (i.e. the alternative
in Re JR38 ). It is important
that the test retain the all-
important word "privacy" and
that it avoids the potentially
confusing introduction of
the public law concept of
"legitimate expectations"
into the misuse of private
information tort.
19 See Barendt, "‘A Reasonable
Expectation of Privacy’:
A Coherent or Redundant
Concept?" in Comparative
Defamation and Privacy
Law (2016), at pp.107–
108 and "Problems with the
‘reasonable expectation of
privacy’ test" (2016) 8 J.M.L.
129 at 135. As mentioned
above, Barendt therefore
believes that the test should be
abandoned. In JR38 [2016]
A.C. 1131 (at [36]), Lord
Kerr also stressed the need
for "caution" when applying
a reasonable expectation of
privacy test "connoting, as
it might seem to some, the
notion that the individual
concerned actually expected"

that his or her privacy would

be protected.
20 See e.g., Campbell v MGN
Ltd [2004] 2 A.C. 457 at [31]
per Lord Nicholls and at [72]
per Lord Hoffman; Douglas
v Hello! (No.3) [2005] EWCA
Civ 595; [2006] Q.B. 125
at [106] per Lord Phillips
M.R.; and PJS v News Group
Newspapers Ltd [2016] UKSC
26; [2016] A.C. 1081 at [88]
per Lord Toulson.
21 See e.g., ASG v GSA [2009]
EWCA Civ 1574 at [25] and
SKA and PLM v CRH [2012]
EWHC 766 (QB) at [70]
(this was an application for
an interim injunction but the
conclusion in respect of the
claimant’s wife and family
was not challenged when
the claimant applied for a
permanent injunction (see
SKA and PLM v CRH [2012]
EWHC 2236 (QB) at [22])).
22 Re JR38 [2016] A.C. 1131
at [98] per Lord Toulson.
Caution is therefore needed
when applying dicta from
HRA cases in the misuse of
private information context.
For example, it does not
follow from the fact that
the claimant does not have
a reasonable expectation of
privacy in an HRA case in
respect of surveillance by law
enforcement officers that he
or she would also have no
reasonable expectation against
media defendants who wanted
to broadcast footage of the
same activities.
23 [2015] UKSC 9; [2015] 1
A.C. 1065 at [4] (cited with
approval in JR38 [2016]
Clarke). See also Browne
v Associated Newspapers
Ltd [2007] EWCA Civ 295;
[2008] 1 Q.B. 103 at [24]
(the question is whether "the
claimant has a reasonable
expectation of privacy in the
particular circumstances of
the case"). Lord Kerr does not
engage with this point when
he says in JR38 that, unlike
the reasonable expectation
of privacy test, the test for
whether or not art.8 is engaged
is "a contextual one" ( [2016]
A.C. 1131 at [56] (see also his
observations at [38]–[39] and
[54]–[55])).
24 See e.g., Weller v Associated
W.L.R. 1541 at [6]–[14].
25 For the seeds of this argument,
see Moreham, "Douglas v

Hello! Ltd — the protection

of privacy in English private
law" (2001) 64 M.L.R. 767 at
770–771 and Privacy and the
Common Law (Ph.D. thesis,
University of Cambridge,
2003), Ch.6. Kirsty Hughes
has also advocated this
approach. She says that courts
need to bring out both the
"behavioural and normative
elements" of the reasonable
expectation of privacy test and
that courts should therefore
consider whether the situation
is one in which there "should
be an objectively recognised
social norm that privacy
should be respected" and
if not, "the steps taken by
the applicant and his or her
behaviour" (Hughes, "A
Behavioural Understanding of
Privacy and its Implications
for Privacy Law" (2012) 75
M.L.R. 806 at 824). Hughes
envisages a slightly different
role for "normative rules" in
her analysis (see 812–813)
but the two approaches are
generally complementary.
26 [2006] EWHC 2783 (QB);
[2007] E.M.L.R. 290 at [23].
27 [2011] EWCA Civ 808; [2012]
E.M.L.R. 2 at [26].
Plc [2009] Ch. 481 at [36].
29 See e.g., Campbell v MGN
Ltd [2004] 2 A.C. 457 at [96]
per Lord Hope.
30 Campbell [2004] 2 A.C. 457
at [145] (emphasis added).
31 Campbell [2004] 2 A.C. 457
at [93] (emphasis added). See
also the lists set out in Gulati
v MGN Ltd [2015] EWHC
1482 (Ch); [2015] W.L.R. (D)
232 at [229] and The Author
of a Blog v Times Newspapers
Ltd [2009] EWHC 1358 (QB);
[2009] E.M.L.R. 22 at [9]
(where Eady J. said courts
have protected information
of a "strictly personal nature"
such as "sexual relationships,
mental or physical health,
financial affairs, or the
claimant’s family or domestic
arrangements").
32 Campbell v MGN Ltd [2004] 2
A.C. 457 at [145].
W.L.R. 1541 at [61].
34 Hosking v Runting [2004]
NZCA 34; [2005] 1 N.Z.L.R. 1
at [250].
35 See further, Moreham,
"Privacy in the Common
Law" (2005) 121 L.Q.R. 628
at 642.

36 Barendt agrees. He argues that

a legislative list of categories
of private information
plus a "non-triviality" or
"seriousness" requirement
would work better than the
privacy test (Barendt, "‘A
Reasonable Expectation of
Privacy’: A Coherent or
Privacy Law (2016), at p.112).
37 See e.g., regarding the
body (including health
information), Campbell v
MGN Ltd [2004] 2 A.C. 457
at [145]; regarding images
of sexual activity, Mosley
v News Group Newspapers
Ltd [2008] EWHC 1777
(QB); [2008] E.M.L.R. 20
at [98]–[100] ; regarding
information about sexual
encounters, PJS v News
Group Newspapers Ltd [2016]
A.C. 1081 at [32]; regarding
the intimate details of personal
relationships, Gulati v MGN
Ltd [2015] EWHC 1482 (Ch)
at [229(iv)], [530] and [578];
and McKennitt v Ash [2006]
EWCA Civ 1714; [2008] Q.B.
73 especially at [13] and
[26]; re intimacies of family
and domestic life, Murray
v Express Newspapers Plc
[2009] Ch. 481 at [55];
McKennitt [2008] Q.B.
73 at [22]; regarding the
experience of trauma, grief,
and strong emotion, Peck
v United Kingdom [2003]
ECHR 44; (2003) 36 E.H.R.R.
41 ; and CVB v MGN Ltd
[2012] EWHC 1148 (QB);
[2012] E.M.L.R. 29 at [54]–
[71]; regarding the inner
workings of one’s mind,
McKennitt [2008] Q.B. 73
at [20]; and Gulati [2015]
EWHC 1482 (Ch) at [386],
[593] and [667]; and regarding
surveillance, A v B Plc [2002]
EWCA Civ 337; [2003] Q.B.
195 at [11(x)]; and Murray
[2009] Ch. 481 at [57].
38 Solove, "A Taxonomy of
Privacy" (2005–6) 154 U. Pa.
L. Rev. 477 at 536.
39 As Eady J. said in A v B
[2005] EWHC 1651 (QB);
[2005] E.M.L.R. 36 at [33] "it
is not every statement [about
health] that will carry the
badge of confidentiality or risk
doing harm to the person’s
physical or moral integrity".
See also Gulati v MGN Ltd
[2015] EWHC 1482 (Ch) at
[229(i)].

40 See e.g., Mosley v News

Group Newspapers Ltd [2008]
E.M.L.R. 20 at [98] ("one
is usually on safe ground
in concluding that anyone
indulging in sexual activity
is entitled to a degree of
privacy—especially if it
is on private property and
between consenting adults
(paid or unpaid))". For further
discussion of how the two
principles work together see Pt
VI below.
41 See e.g., Parker, "A Definition
of Privacy" (1974) 27 Rutgers
L. Rev. 275 at 281 (defines
privacy as "control over when
and by whom the various
parts of us can be sensed by
others"); Benn, "Privacy,
Freedom and Respect for
Persons" in Pennock and
Chapman (eds), Privacy
(NOMOS, 1971), Vol.XIII,
at pp.3–4 (says the right to
privacy includes a claim "not
to be watched, listened to,
or reported upon without
leave, and not to have public
attention focused upon
one uninvited"); Gerety,
"Redefining Privacy" (1977)
12 Harv. C.R.-C.L. Law Rev.
233 at 236 (privacy should
be defined as "an autonomy
or control over the intimacies
of personal identity"); and
Fried, "Privacy" (1968) 77
Yale L.J. 475 at 482–483 (says
that privacy is not simply an
absence of information about
us in the minds of others but
control over knowledge about
oneself).
42 See Rachels, "Why Privacy
is Important" (1975) 4 Phil.
& Publ. Aff. 323 at 326
and Moreham, "Privacy in
the Common Law" (2005)
121 L.Q.R. 628 at 636,
respectively.
43 Hughes, "A Behavioural
Law" (2012) 75 M.L.R. 806
at 812. An invasion of privacy
occurs, she argues, "when
Y (the intruder) breaches a
privacy barrier used by X (the
privacy-seeker) to prevent Y
from accessing X" (at 810).
44 As Eady J. said in The Author
of a Blog v Times Newspapers
Ltd [2009] E.M.L.R. 22 at
[6], "the mere fact that the
claimant wishes to remain
anonymous does not mean
either that he has a reasonable
expectation of doing so or
that [the defendant] is under

an enforceable obligation to
him in that respect". See, in a
similar vein, Creation Records
v News Group Newspapers
Ltd [1997] EWHC 370 (Ch);
[1997] E.M.L.R. 444 at
455 and Axon v Ministry of
Defence and News Group
Newspapers Ltd [2016]
EWHC 787 (QB); [2016]
E.M.L.R. 20 at [64(k)].
45 See Hughes, "A Behavioural
Law" (2012) 75 M.L.R. 806 at
812.
46 See further, The Law of
Privacy and the Media (2016),
Ch.10.
47 Attorney General v Guardian
Newspapers Ltd [1990] 1 A.C.
109 at 281; [1988] 3 All E.R.
545 at 658.
48 [1997] E.M.L.R. 444 at 455.
49 [1994] E.M.L.R 134 at 148.
50 Tchenguiz v Imerman [2010]
EWCA Civ 908; [2011] Fam.
116 at [69].
51 [2001] Q.B. 967 at 988;
[2001] 2 All E.R. 289 at 307
(emphasis added). See also
[2001] Q.B. 967 at 1012 (per
Keene L.J.). In Campbell v
MGN Ltd [2004] 2 A.C. 457
at [134], Baroness Hale melds
this idea with the reasonable
expectation of privacy test,
observing that the breach
of confidence action had
developed to a point where
"the exercise of balancing
art.8 and art.10 may begin
when the person publishing
the information knows or
ought to know that there is a
reasonable expectation that the
information in question will be
kept confidential". See also,
A v B Plc [2003] Q.B. 195 at
[11(ix)]) and Douglas v Hello!
Ltd (No.3) [2006] Q.B. 125 at
[82], [100] and [120].
52 Tchenguiz v Imerman [2011]
Fam. 116 at [67].
53 [2006] EWCA Civ 1776;
[2008] Ch. 57 at [36]. Also,
in Browne v Associated
Q.B. 103 at [33], the Court
of Appeal said it does not
automatically follow from the
fact that a piece of information
is "trivial" that a person cannot
have a reasonable expectation
of privacy in respect of it;
instead, that question "requires
a detailed examination of all
the circumstances on a case by
case basis. The circumstances
include the nature of the
information itself and the

circumstances in which it has

been imparted or obtained".
Plc [2009] Ch. 481 at [36].
EWHC 1163 (QB); [2014]
E.M.L.R. 24 at [37] and
[160]–[161].
W.L.R. 1541 at [35] and [62].
57 McKennitt v Ash [2008] Q.B.
73 at [53]–[55]; Campbell v
MGN Ltd [2004] 2 A.C. 457
at [57] per Lord Hoffmann;
Ferdinand v MGN Ltd [2011]
EWHC 2454 (QB) at [56]–
[60]; Rocknroll v News Group
Ltd [2013] EWHC 24 (Ch)
at [18]–[19]; and The Law of
Privacy and the Media (2016),
at para.11.21.
58 McKennitt [2008] Q.B. 73 at
[6].
W.L.R. 1541 at [9] and [63];
Murray v Express Newspapers
Plc [2009] Ch. 481 at [38].
In Murray (at [38]), the court
said that "the position would
or might be quite different"
if the parents had courted
publicity.
60 [2012] EWHC 2103 (QB);
[2013] E.M.L.R. 2 at [98]–
[101] and [115]–[116] (upheld
on appeal in [2013] EWCA
Civ 554) . See, also Ntuli v
Donald [2010] EWCA Civ
1276; [2011] 1 W.L.R. 294
at [35]–[36] in which the
Court of Appeal affirmed that
whether the parties treated a
past relationship as private
has a bearing on a claimant’s
privacy in respect of it.
61 [2010] EWHC 3145 (QB) at
[32].
62 It is suggested, with respect,
that Lord Wilson therefore
overstated the position when
he said in Re JR38 [2016]
A.C. 1131 at [109] that it is
important to "have regard to
the fact that the concept of
reasonable expectation is a
broad objective concept and
that the court is not concerned
with the subjective expectation
of the person concerned".
Although courts often stress
that the reasonable expectation
of privacy test is "objective",
they also make it clear that
reasonable expectations are
assessed from the perspective
of a person in the shoes of the
claimant (see e.g., Murray


[2009] Ch. 481 at [35]
citing Campbell v MGN Ltd
[2004] 2 A.C. 457 at [99] per
Lord Hope) and, as will be
discussed in this section, that
the claimant’s own behaviour
is relevant.
63 See e.g., Campbell [2004]
2 A.C. 457 at [73] per Lord
Hoffmann and [154] per
Baroness Hale.
64 McKennitt v Ash [2008] Q.B.
73 at [21]–[22] (citing with
approval the first instance
decision at [135]).
65 [2007] NZSC 30; [2007] 3
N.Z.L.R. 91 at [257]. See,
further, at [256] and [258].
66 [2008] Q.B. 73 at [21]–[22].
See also McKennitt v Ash
[2005] EWHC 3003 (QB);
[2006] E.M.L.R. 10 at [135].
67 (1848) 2 De G. & Sm. 652 at
698; 64 E.R. 293 at 313. See
also Rocknroll v News Group
Ltd [2013] EWHC 24 (Ch) at
[12].
68 [2001] ECHR 550; (2008)
46 E.H.R.R. 51 at [57] cited
with approval in R. (on
the application of Catt) v
Commissioner of Police
of the Metropolis [2015]
Sumption and Re JR38 [2016]
A.C. 1131 at [38]–[39] per
Lord Kerr. See also Weller
v Associated Newspapers
Ltd [2016] 1 W.L.R. 1541 at
[63] where the court stressed
(citing the ECtHR in Reklos
and Davourlis v Greece
[2009] E.C.H.R. 200; [2009]
E.M.L.R. 16 at [37]) that
the young claimants did not
"knowingly or accidentally
lay [themselves] open to
the possibility of having
[their] photograph taken in
the context of an activity that
was likely to be recorded or
reported in a public manner"
suggesting that, if a claimant
had done this, it would be a
significant factor.
2 A.C. 457 at [73] per Lord
Hoffman.
70 Campbell [2004] 2 A.C. 457
at [73], citing Australian
Broadcasting Corp v Lenah
Game Meats Pty Ltd (2001)
208 C.L.R. 199 at 226.
However, none of these
judges was suggesting that
individuals have no rights
of privacy in a public place;
on the contrary, a person can
have a reasonable expectation
of privacy protection against

publication of images taken

in public (see e.g., Campbell
[2004] 2 A.C. 457 at [74]).
71 See further, Moreham "Privacy
in Public Places" [2006] C.L.J.
606.
72 See Peck v United Kingdom
[2003] ECHR 44; (2003)
36 E.H.R.R. 41 cited with
approval in Campbell v MGN
Ltd [2004] 2 A.C. 457 at [74]
per Lord Hoffman and [122]
per Lord Hope and Hosking v
Runting [2005] 1 N.Z.L.R. 1 at
[164] per Gault J. and Tipping
J. (although compare Andrews
v TVNZ Ltd [2009] 1 N.Z.L.R.
220).
73 This scenario is drawn from
real life: see "Couple caught
in office sex romp" https://
www.stuff.co.nz/business/
better-business/656685. See
also, Jagger v Darling [2005]
EWHC 683 (Ch) at [13] where
Bell J. held that the claimant,
on the evidence before him at
that interlocutory stage, had
a legitimate expectation of
privacy because she did not
realise that her conduct (sexual
activity in a nightclub) would
be observed or electronically
recorded.
74 See e.g., Murray v Express
Newspapers Plc [2009] Ch.
481 at [37].
75 See e.g., Weller v Associated
W.L.R. 1541 at [29].
76 Weller [2016] 1 W.L.R. 1541
at [31]. As a result of this lack
of autonomy both the parents
and the court "step in" (also at
[31]).
77 Weller [2016] 1 W.L.R. 1541
at [32] and [63].
Plc [2009] Ch. 481 at [35].
79 See Weller v Associated
W.L.R. 1541 at [64] and [33],
respectively. The fact that the
activity in question relates
to family life will also be
relevant under the societal-
attitudes principle (see e.g.,
Murray [2009] Ch. 481 at
[55] and Weller [2016] 1
W.L.R. 1541 at [61]).
80 Courts already recognise this.
For example, when upholding
the art.8 claim of a man who
was shown on television
just before and after he tried
to commit suicide in Peck
v United Kingdom (2003)
36 E.H.R.R. 41 at [62], the
ECtHR stressed that he was at
the time "deeply perturbed and
in a state of some distress".

Peck has been approved in

English and New Zealand case
law (see Campbell v MGN Ltd
[2004] 2 A.C. 457 at [122]–
[123] per Lord Hope and at
[74]–[75] per Lord Hoffmann;
and Hosking v Runting [2005]
1 N.Z.L.R. at [164]).
81 [2011] Info. T.L.R. 25 at [27].
See also, TUV v Persons
Unknown [2010] EWHC
853 (QB); [2010] E.M.L.R
19 at [3] where Eady J. said
that it was "plain that neither
the persons who stole the
equipment … nor any third
parties to whom they may
choose to pass it on would
have any rights to view,
use or exploit" material,
including images, stored on
the claimant’s stolen laptop.
82 [2015] EWHC 1482 (Ch)
at [155] and [224]. See
also Coogan v News Group
Newspapers Ltd [2012] EWCA
Civ 48; [2012] 2 All E.R. 74
at [49].
83 [2008] Ch. 57 at [35]. They
held at [36] that even if the
diary had been brought into a
newspaper after being found
in the street (rather than being
communicated in breach
of confidence) "its form
and content would clearly
have constituted it private
information" (echoing Lord
Goff in Attorney General v
Guardian Newspapers Ltd
[1990] 1 A.C. 109 at 281).
This in turn reflects Lord
Goff’s famous observation in
that case that if "an obviously
confidential document, such
as a private diary, is dropped
in a public place, and then is
picked up by a passer-by", the
passer-by will be bound by
an obligation of confidence in
respect of its contents (at 281).
84 Campbell v MGN Ltd [2004] 2
A.C. 457 at [154].
85 See respectively, Campbell
[2004] 2 A.C. 457 at [155]
per Baroness Hale and [121]–
[123] per Lord Hope.
Plc [2009] Ch. 481 at [50].
See also, AAA v Associated
E.M.L.R. 2 at [127]; Mosley v
News Group Newspapers Ltd
[2008] E.M.L.R. 20 at [16]–
[17] and [103]–[104]; R v
Loveridge, Lee and Loveridge
[2001] EWCA Crim 973;
[2001] 2 Cr. App. R. 591
at [30]; Von Hannover v
Germany (2005) 40 E.H.R.R.
1 at [68]; and Von Hannover

v Germany (No.2) (2012) 55

E.H.R.R. 15 at [113].
87 [2001] Q.B. 885 at 898;
[2000] 3 All E.R. 989 at 1000
(cited with approval in R. v
Loveridge, Lee and Loveridge
[2001] 2 Cr. App. R. 29 at
[30]). See also [2001] Q.B.
885 at 899 per Hale L.J. In
R. (on the application of Anna
Ford) v Press Complaints
Commission [2001] EWHC
683 (Admin); [2002] E.M.L.R.
5 at [30], Silber J. also said
that the fact that photographs
(in that case of the claimant
and her partner and children
on a beach in Majorca) were
surreptitiously taken was
important because it meant
they were "deprived… not
only the opportunity of
refusing to consent to be
photographed but also of the
opportunity of moving out
of sight of the camera or of
taking steps to ensure that
no newsworthy photographs
were taken of them". The
claimant’s application for
permission to quash a Press
Complaints Commission
decision dismissing her
privacy claim under the Code
of Practice was, however,
unsuccessful.
88 Benn, "Privacy, Freedom
and Respect for Persons" in
Privacy (1971), at p.11.
2 A.C. 457 at [134]. One
of the factors in Murray
[2009] Ch. 481 at [36] was
also the "absence of consent
and whether it was known or
could be inferred".
90 The situation would be
different, of course, if the
newspaper knew, or should
have known, of the man’s
religious obligations.
91 [2009] EWCA Civ 443; [2010]
1 W.L.R. 934 at [42]. See
also Weller v Associated
E.M.L.R. 24 at [37].
92 cf. Weller [2014] E.M.L.R.
24 at [161] where Dingemans
J. stressed that the defendant
publishers were not aware of
the harassing circumstances
in which the photographs
were taken nor of the
photographer’s promise that
the children’s faces would be
pixellated but did not consider
what, if any enquiries, they
should have made.
93 Again this example is
drawn from real life: http://

www.dailymail.co.uk/news/
article-3465215/Married-
City-lawyer-51-sex-street-
prominent-barrister-outside-
Waterloo-station-peak-rush-
hour.htm. As Eady J. said in
CC v AB [2006] EWHC 3083
(QB); [2007] E.M.L.R. 11 at
[39], "Sometimes … The court
will recognise the legitimate
expectation of privacy, not
on the basis of the means by
which the information was
imparted, but rather because of
the nature of the information
itself." See also Hosking v
Runting [2005] 1 N.Z.L.R. 1
at [249] where Tipping J. says
that a reasonable expectation
of privacy in the material in
question "can arise from the
nature of the information or
material or the circumstances
in which the defendant came
into possession of it, or both".
94 The relatively trivial nature of
the information would go to
remedy.

Unpacking The Reasonable Expectation of Privacy Test

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Unpacking the reasonable expectation of privacy test, L.Q.R.

2018, 134(Oct), 651-674

For educational use only

II. The Reasonable Expectation of Privacy Test

III. How Does the Reasonable Expectation of Privacy Test Work?

V. The Second Principle: the Claimant’s Privacy Signals

VI. How the Two Privacy Principles Work Together

Law Quarterly Review

L.Q.R. 2018, 134(Oct), 651-674

Other related subjects

*L.Q.R. 651 I. Introduction

© 2021 Thomson Reuters. 1

II. The Reasonable Expectation of Privacy Test

© 2021 Thomson Reuters. 2

III. How Does the Reasonable Expectation of Privacy Test Work?

1. The reasonable expectation of privacy protection test is a normative enquiry

© 2021 Thomson Reuters. 3

2. The reasonable expectation of privacy protection test is a contextual enquiry

© 2021 Thomson Reuters. 4

© 2021 Thomson Reuters. 5

V. The Second Principle: the Claimant’s Privacy Signals

© 2021 Thomson Reuters. 6

1. Privacy signals in the misuse of private information case law

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2. The explanatory power of the privacy signals principle

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ii) Children and others who lack capacity

iii) The way material is stored or communicated

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iv) Surreptitious observation

v) The defendant’s knowledge

© 2021 Thomson Reuters. 11

VI. How the Two Privacy Principles Work Together

© 2021 Thomson Reuters. 12

Associate Professor of Law

Victoria University of Wellington

© 2021 Thomson Reuters. 13

© 2021 Thomson Reuters. 14

© 2021 Thomson Reuters. 15

public law actor has interfered

© 2021 Thomson Reuters. 16

that his or her privacy would

© 2021 Thomson Reuters. 17

Hello! Ltd — the protection

© 2021 Thomson Reuters. 18

36 Barendt agrees. He argues that

© 2021 Thomson Reuters. 19

40 See e.g., Mosley v News

© 2021 Thomson Reuters. 20

© 2021 Thomson Reuters. 21

circumstances in which it has

© 2021 Thomson Reuters. 22

v Express Newspapers Plc

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publication of images taken

© 2021 Thomson Reuters. 24

Peck has been approved in

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v Germany (No.2) (2012) 55

© 2021 Thomson Reuters. 26

© 2021 Thomson Reuters. 27