The landmark case for breach of confidence

In the 20th century, the law of breach of confidence has expanded due to the case of Attorney-General v Guardian Newspaper [4] , where Lord Keith dictates that; “Breach of confidence involves no more than an invasion of personal privacy. Thus in Duchess of Argyll v Duke of Argyll [1967] CH 302 an injunction was granted against the revelation of marital confidences. The right to personal privacy is clearly one which the law should in this field seek to protect."

In Coco v A.N.Clark (Engineers) [5] the court has laid down three extensions of breach of confidence to consider the basic element which suggested in Coco. The three extensions were i) Confidentiality could not arise in respect of information which was generally accessible, ii) Confidentiality could not apply to useless or trivial information, and iii) The public interest in confidentiality could be outweighed by some other countervailing public interest. By the 90’s, breach of confidence had developed substantially to comprehend certain ideas of privacy. However, Glidwell LJ in Kaye v Robertson [6] in his judgement articulated that “it is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy".

It is appropriate to say that from Kaye’s case, it demonstrates that English law at the time was not fully prepared to acknowledge cases which consists right of privacy despite previous positive decisions. As per Bingham LJ [7] , this was a scenario where there was no public interest in the publication of the story and if ever there was a case where a right to privacy should dominate that of free expression, then this was it.

The ruling in Kaye has established some flaws which existed through breach of confidence in attempting to balance the right of privacy. As such, several cases have widened the law of confidence in order to cure the problems. In light of Hellewell v Chief of Derbyshire [8] , Laws J. introduced an implied obligation of confidence, where he dictates that “I entertain no doubt that disclosure of a photograph may, in some circumstances, be actionable as a breach of confidence… in such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the course of action would be breach of confidence".

There was a controversy regarding the new implied obligation of confidence laid down by Laws J. where it might have worked if applied to Kaye, nonetheless, it is submitted that it certainly would have balanced the overly one-sided free expression theory. Ravinder Singh in European Human Rights Law Review considered that “English law does currently afford some protection to privacy interests but it does not follow that there is a right to privacy as such". [9] However, he changed his opinion four years later, where he states that “the time has come to say openly that there is a right to privacy in English law". [10] 

The introduction of the Human Rights Act 1998, which incorporated the European Convention on Human Rights into English Law has dedicated new legislation, there were Articles 8 and 10. (Article 8 of the Convention required ‘a right to respect for private and family life’. Article 10(1) restored the steadiness by insisting on the right to freedom of expression.) Albeit the new legislation, there was no sign of developing a new tort of privacy, as Lord Irvine L.C. commented [11] : “I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like to fashion a common law right of privacy."

In the case of Douglas v Hello! Ltd (No.1) [12] , it was the first attempt of whether breach of confidence could balance the Human Rights Act principle of privacy and free expression. It was to be said that freedom of expression had been referred to as a ‘trump card’ [13] in English Law which ‘always wins’ [14] , but the Court of Appeal pointed out that there were several limitations: “In other words if freedom of expression is to be impeded….it must be on cogent grounds recognised by law." [15] The ruling was stated as such “we have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy." [16] 

Sedley LJ suggested that a law of right of privacy could step outside the boundary of breach of confidence and he continues: “The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy." [17] 

In spite of Sedley LJ ruling, it seemed most likely that the development of breach of confidence would be the way to provide protection. This though was reinforced by the ruling in Venables v News Group Newspapers Ltd. [18] Dame Elizabeth Butler-Sloss articulates that, “under the umbrella of confidentiality there may be information that may require a special quality of protection" [19] . In this case she refers to the freedom of expression being dominated by article 2, the right to life and article 3, the prohibition of torture, as well as article 8 itself.

The Venables ruling deemed to ascertain that the protection of the right to privacy had been in favour over the right to free expression. This idea continued in A v B and C, in regards of a Premiership football who attempted to restrain publication of details of extra-marital affairs in the Sunday People. At first sight, Jack J. granted the injunction via an extension of confidence, stating that the law should protect [20] “facts concerning sexual relations within marriage….and in the context of modern sexual relations, it should be no different to facts outside marriage."

The Court of Appeal overturned the decision and stated that public figures were open to increased scrutiny [21] , and differentiated between relationships of a permanent nature, and those of a transient nature as were the subject of this case. In early 2002, Ouseley J. [22] had refused to grant an injunction to television Jamie Theakston’s personality in regards of a sexual encounter in a brothel was not confidential.

There was confusion amongst the judiciary as to whether breach of confidence could successfully protect privacy. In Mills v News Group [23] Collins J. in the opinion that article 8 did not create a course of action in relation to privacy, however, a month later in the case of Beckham v MGN [24] Eady J. seems to acknowledged that there was a new law of privacy which differ from breach of confidence.

In Campbell v MGN [25] , the decision was in favour of the claimant being reversed on appeal [26] . Here, Lord Phillips MR tried to clear up some issues surrounding the case, however, it could be argued that his decision shows uncertainty in this course of the law: “We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay." Yet he suggests: “Where a public figure chooses to make untrue pronouncements about his, or her, private life, the press will normally be entitled to put the record straight."

Lindsay J. made his final decision in Douglas v Hello! Ltd (No.6) [27] , he found favour in the claimants’ view on a traditional breach of confidence basis. However, he articulates that even though breach of confidence could be able to work in this set of circumstances, but it may not be adequate in a different scenario: “Parliament has failed so far to grasp the nettle does not prove that it will not have to be grasped in the future", inadequacies in the law of confidence “will have to be made good and if Parliament does not step in then the Courts will be obliged to." [28] 

In Peck v United Kingdom [29] , it demonstrates on what Lindsay J. has foreseen. The case was highlighted the incompetence of breach of confidence to provide a complete protection of the right to privacy and the failure of English Law to remedy the violation of Mr.Peck’s rights in article 8. Home Office v Wainwright [30] has demonstrated the reluctance of the judiciary to acknowledge the matters and there was a need for change on the inability of breach of confidence to balance free expression and privacy. Ravinder Singh admitted that it was difficult to advocates the right to privacy within the existing framework of the law of confidentiality [31] after having witnessed the limitations in the laws of breach of confidence.

As per Buxton LJ explains in Wainwright [32] “I have no doubt that in being invited to recognise a tort of breach of privacy, we are indeed being invited to make the law and not merely apply it." “Diffidence in the face of such an invitation is not, in my view, an abdication of our responsibility, but rather a recognition that, in areas involving extremely contested and strongly conflicting social interests, the Judges are extremely ill-equipped to undertake the detailed investigations necessary before the proper shape of the law can be decided."

As a matter of construction, it is clear that the articles laid down by the Parliament did not successfully draw a balance between the right to privacy and free expression in regards of public figures throughout the developments in the law surrounding an action for breach of confidence. The cases mentioned throughout suggest that it is true both before and after the introduction of the Human Rights Act. If there is a need of further development in the laws of breach of confidence or introduction of a tort of privacy, the judiciary should come in and intervene.