The way in which English law protects personal privacy is founded on a prohibition of misuse of private information. Recent developments have expanded this to cover intrusion or harassment. This is so even if some information has reached the public domain so there is some loss of absolute confidentiality.
Reasonable expectation of privacy: balance with freedom of expression
Any information in which person has a reasonable expectation of privacy is covered: for instance, this might be information about a person’s sex life, medical history and family and home life. As Article 8 of the European Convention on Human Rights states, everyone has the right to have respect for private family life, home and correspondence.
This needs to be balanced with Article 10 which provides for the right to freedom of expression. Most cases of difficulty involve resolving that tension.
Whether there is a reasonable expectation of privacy is a broad question, which takes account of all the circumstances of the case. These 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; and
the effect on the claimant, and the circumstances in which and the purposes for which the information came into the hands of the publisher.
Public figures
All cases tend to be highly fact specific, both in terms of the outcome and the possible damages available. It is possible for a public figure who may invite publicity or set themselves up as a role model for particular areas of conduct to be treated differently from “normal” member of the public. However, just because someone has voluntarily put some information in the public domain does not justify more wholesale intrusion. Individuals, even celebrities do have some right to control what they make public.
This is illustrated by the recent case of HRH Duchess of Sussex v. Associated Newspapers – or Meghan Markle v. The Mail. The High Court rejected arguments put forward by the defendant that a private letter to the Duchess’ estranged father had been put in the public domain through various prior references in which she had been involved.
The judge decided that the prior disclosures were not sufficient to permit publication of the detailed content of the letter. He also commented that the theory that disclosures in a given "zone" of a person's private life could defeat or reduce the weight of any claim for privacy in respect of other information in the same "zone" had been discredited. In the modern law, the respect for individual autonomy that lies at the heart of Article 8 means the starting point is that a person has the right to exercise close control over particular information about their private life.
One possibly surprising thing about this case is that the Duchess was able to control her father’s dealings with a letter she had voluntarily sent him without having obtained any formal confidentiality assurances, but it seems this is now consistent with the general tendency of English law. The case is subject to an appeal.
Remedies
The scope for recovering damages has been increased following recent phone hacking cases but the precise calculation will always be highly dependent on individual circumstances. Sadie Frost (the actress) was awarded £260,000, Paul Burrell (the late Princess Diana’s notorious former butler) got just £5,000.
The main remedy is often an injunction (now technically called an interim non-disclosure order) but careful consideration needs to be given to the risks and cost benefit analysis in making any application. And if an application is to be made it needs to be made quickly.
Often the most suitable remedy might be an effective counter public relations campaign.
The business perspective: protecting against claims
Businesses can also have privacy rights albeit more limited than individuals but there is scope to combine them with remedies protecting against harassment in the event of potential adverse publicity.
If a business employs individuals whose private lives could become the subject of media stories (such as actors, television presenters or high-profile business leaders) or is involved with sponsorship of celebrities who might be vulnerable to adverse publicity, consideration should be given to putting appropriate contractual protection in place to limit any damage to its brand or reputation that might be caused by such a story.
Putting yourself in the best position
If you apprehend you might face a problem in future take anticipatory measures to reinforce the positive
Be careful with your social media
If at all possible enter into binding agreements with commercial partners as to what might be done with private information and what might occur in the event of adverse publicity.
In summary, the prospects for successful dispute management are greatly improved by effective preparation.
