Privacy Lecture
Does the Tort of Invasion of Privacy Exist?
English law has no general tort of invasion of privacy. It does recognise the distinct tort of misuse of private information. Statements to this effect can be seen in Wainwright v Home Office.
Case in Focus: Wainwright v Home Office [2004] 2 AC 406
The claimants, a son and his mother, went to visit his brother (her son) in prison. The imprisoned brother had been suspected of dealing in drugs whilst in jail, and so as a condition of the visit they were asked to consent to a strip search. Rule 86(1) of the Prison Rules 1964 authorised searches, but the officers did not follow the safeguards governing how they were to be conducted. They consented and were searched - a process that both the claimant and his mother found upsetting. The claimant, who had physical and learning difficulties, was held to have suffered PTSD (i.e. recognisable psychological harm.)
The court held that an officer’s touching of the son’s genitals constituted battery - this was conceded by the defence. However, they rejected the idea that there had been an actionable invasion of privacy. This was concluded by Lord Hoffmann (general discussion starts at 15):
“…I would reject the invitation to declare that […] there has been a previously unknown tort of invasion of privacy.”
- Lord Hoffmann, at 35.
The searches predated the Human Rights Act 1998 coming into force. The European Court of Human Rights later found violations of Articles 8 and 13 in Wainwright v United Kingdom (2006), application no. 12350/04. However, Lord Hoffmann does note that there exists a bundle of rights which cover much of the ground that a tort of privacy might cover:
“There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. […] Common law torts include trespass, nuisance, defamation and malicious falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act 1997 and the Data Protection Act 1998.”
- Lord Hoffmann, at 18.
The modern data protection framework includes the Data Protection Act 2018 and the UK GDPR, as amended by the Data (Use and Access) Act 2025. Lord Hoffmann makes an important point however - that there are a number of other torts and legal mechanisms which act to protect the privacy of individuals. So an individual can prevent people from coming into his house via trespass to property, can stop them from rooting through his diary via trespass to goods, and can prevent them from lifting his shirt up via trespass to person. The same snooper is prevented from knowingly accessing the individual’s online bank account without authority by s.1 of the Computer Misuse Act 1990, and from falsely affecting his reputation thanks to the tort of defamation. He can go about his business free from constant interference under harassment law. In essence - the private ‘sphere’ of an individual’s life is protected by a number of different and effective safeguards.
It should also be noted that the lack of a tort of invasion of privacy doesn’t indicate that there isn’t an argument for one. The Leveson inquiry of 2011-12 undertook a protracted examination of invasive media practices, spurred on by a number of high-profile incidents, noting that a lack of proper regulation provided the environment for such incidents to take place. A Royal Charter established a system for recognising independent press regulators in 2013. Parliament has not created a general tort of invasion of privacy. This also showcases the primary argument against the creation of such a tort - since invasions of privacy usually involve exposing information to the public, they become a matter of free expression (and by extension, press freedom). Since tort law remains most useful to those who can afford access to the courts, a tort of invading privacy would likely do little to help the man on the street, and a lot to help those involved in illegitimate or immoral (but well-paid) practices. Since such practices are invariably kept secret by their perpetrators, they become a matter of privacy. In short: anyone arguing for a tort of invading privacy should be careful what they wish for!
Thus, although there is no general tort of invading privacy, there does exist a bundle of rights which can be thought of as providing a rough de facto basis for protecting privacy. Most of these have already been covered in other sections (and some, like data protection, remain beyond the purview of this work) but the Article 8 right to respect for private life, the equitable doctrine of breach of confidence and the tort of misuse of private information remain to be outlined.
Exam Consideration: Protection of privacy is piecemeal. It is a popular subject for essay questions because it spans common law, equity and statute. Since Campbell, the cause of action for misuse of private information has become increasingly well established as a distinct claim in its own right.
Human Rights Approaches to Privacy
The Human Rights Act 1998 allows a victim to bring a claim against a public authority for an unlawful interference with Article 8 under ss.6 and 7. Against a private defendant, the claimant needs an existing cause of action. The courts must apply it compatibly with Convention rights.
Article 8 of the European Convention on Human Rights, given effect in domestic law by the Human Rights Act, provides everyone with a “right to respect for his private and family life, his home and his correspondence”. This is not absolute; Article 8(2) provides for the right’s restriction, where the interference is in accordance with the law and necessary in a democratic society for one of the aims listed there.
This right can be contrasted with its counter-weight: the Article 10 Right to Freedom of Expression. Again, this right is not absolute, and notes the possibility of limitation under Article 10(2).
Neither right takes precedence. The court weighs their importance in the particular case, the justification for interfering with each, and the proportionality of the interference (Re S (A Child) [2004] UKHL 47). Under s.12(4) of the Act, the court must give particular regard to the importance of freedom of expression when considering relief which might affect it.
This provides an important basis for English law’s protection of privacy, since it means that the other laws mentioned in the ‘bundle’ above will be interpreted in a manner which promotes Article 8 (as long as this doesn’t unduly infringe Article 10.) This effect can be seen in Douglas v Hello! Ltd (No. 1) (with No. 3 discussed under economic torts).
Case in Focus: Douglas v Hello! Ltd (No.1) [2001] 2 WLR 992
The defendants, Hello! magazine, obtained unauthorised photos of the wedding of Michael Douglas and Catherine Zeta-Jones. The couple had an exclusive deal with OK! magazine for the publishing of the wedding photos, and accordingly searched their guests for cameras, and had the people staffing the wedding sign agreements not to take photos. They sought an injunction against the publishing of the photos, and this was granted. The defendant then appealed.
It then fell to the court, under s.12 of the Human Rights Act 1998, to consider the competing rights of privacy under Article 8, against the right to freedom of expression under Article 10. The court was deciding an application before trial. The question was whether an interim injunction was an appropriate remedy, or whether damages after trial would be an adequate remedy (thus avoiding the use of a remedy which would involve hampering press freedom, when an alternative award of damages would acknowledge the harm whilst preserving the press’s freedom of expression).
The court held that, on balance, damages would be a sufficient remedy and discharged the interim injunction. Sedley LJ discussed the duty of courts under the Human Rights Act at 128 and quoted the European Court of Human Rights on the protection of private life:
"The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life.”
- X and Y v The Netherlands, at 23, quoted by Sedley LJ at 130.
In effect, Sedley is acknowledging that the courts should not stop at preventing government intrusion, but instead that Article 8 extends further into the territory of actively promoting privacy rights.
The human rights basis for privacy is important, since it has informed the way the courts have interpreted the breach of confidence doctrine, as the next section will reveal.
Breach of Confidence and Misuse of Private Information
The doctrine of breach of confidence is in fact a matter of equity law, rather than tort. It protects commercial secrets and has long protected personal confidences, including the royal family’s private etchings in Prince Albert v Strange (1849). The usual elements are information with the necessary quality of confidence, circumstances importing an obligation of confidence and unauthorised use of the information (Coco v A N Clark (Engineers) Ltd [1969] RPC 41). The most significant modern development came in the form of Campbell v Mirror Group Newspapers, which effectively established what is now widely recognised as the distinct cause of action of ‘misuse of private information’.
Case in Focus: Campbell v Mirror Group Newspapers [2004] UKHL 22
The claimant, model Naomi Campbell, was photographed for the newspaper in the street after a Narcotics Anonymous meeting. At the time, she was on record as denying that she took drugs.
The claimant sought damages for the publication of the photos and details of her treatment. She accepted that the Mirror could correct her public denials by reporting that she was addicted to drugs and receiving treatment. The majority held that this did not justify publishing details of her attendance at Narcotics Anonymous meetings or the accompanying photographs. Lord Nicholls described how the breach of confidence doctrine had developed to facilitate the balance of Articles 8 and 10:
“The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. […] the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action.”
- Lord Nicholls, at 17.
The court implemented a two-part test. Firstly, it will be asked whether a reasonable person in the claimant’s position would expect the information to be kept private in all the circumstances:
“If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. So there is normally no need to go on and ask whether it would be highly offensive for it to be published.”
- Lord Hope, at 96.
Secondly, this must be balanced against the right to freedom of expression:
“They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy.”
- Lord Hope, at 113.
The Court of Appeal in Vidal-Hall v Google Inc [2015] EWCA Civ 311 held that misuse of private information is a tort for the purposes of service out of the jurisdiction, distinct from equitable breach of confidence. Misuse may consist in obtaining private information, such as by intercepting voicemail, even if the information is never published (Gulati v MGN Ltd [2015] EWCA Civ 1291).
What Constitutes Private Information?
There is a developed selection of cases which detail situations in which privacy can reasonably be expected (thus fulfilling the first part of the Campbell test). It should be noted that many of these cases are pre-Campbell, but nonetheless demonstrate when the court will regard information as being sufficiently private. It should go without saying that an individual seeking drug counselling is included in this category (i.e. Campbell). In Bloomberg LP v ZXC [2022] UKSC 5, the Supreme Court held that a person under criminal investigation generally has a reasonable expectation of privacy in information about the investigation before charge. This is a starting point, and the circumstances may displace it.
Sexual relations will ordinarily be considered private, even if extra-marital (as salacious as they might be.) Thus, in A v B [2002] 2 All ER 545, a premiership footballer applied for an injunction to stop the publication of details of two extramarital relationships. The injunction was granted, and the defendant newspaper appealed. The appeal was allowed. The court took account of the nature of the relationships and the women’s own interest in telling their stories.
The inside of an individual’s home will ordinarily be considered private. Thus in Beckham v Mirror Group News Ltd [2001] All ER (D) 307, David and Victoria Beckham successfully obtained an interim injunction against the publication of photos detailing the inside of their new home. It should also be noted that a public interest argument failed in this case, demonstrating that not everything which interests the public can be defended on the basis of public interest.
An individual’s address may be private. A risk to the individual’s safety is relevant, but is not a requirement in every case. Thus, in Mills v News Group Newspapers Ltd [2001] EMLR 957, Heather Mills was unable to obtain an injunction against the defendant newspaper publishing such information. The risk to her was only slight, it was already well known that she lived in the town, and photos of her previous home had previously been published in national publications. This can be contrasted with Venables & Thompson v News Group Newspapers Ltd [2001] EWHC 32. The notorious murderers of James Bulger were provided with new identities upon release from prison. Before their release, the claimants sought an injunction against publication of information identifying them or their whereabouts. This was granted - the release of the information would have presented a real risk of serious harm or death to the claimants.
Information that an individual has had plastic surgery will ordinarily be considered private. Thus, in Archer v Williams [2003] EWHC 1670, the claimant sought damages for the publication of information regarding a facelift, from a former assistant who had sold her story to the press. The claim was successful.
It should be noted that the law may treat photographs as a particularly aggressive invasion of privacy. A photograph can reveal a precise location or suggest that the individual was followed without their knowledge. Thus, in Campbell, Baroness Hale noted (at 154) that the photographs of the claimant would both induce her into thinking that she was being followed and/or her location betrayed by a confidant, as well as deterring her from returning to the place the photos had been taken (and, after all, deterring a drug addict from seeking counselling is morally dubious.)
Whilst the general scope of privacy is open to the courts to decide, one test can be found in the Australian case of Australian Broadcasting Corporation v Lenah Game Meats [2001] 208 CLR 199. It should be noted that this test is not a separate requirement in English law. In Campbell Lord Hope regarded it as useful in cases of doubt. The claimant sought an injunction against the broadcast of a film containing undercover footage of its possum meat slaughterhouse. The company failed to identify a legal or equitable right against the broadcaster to support the injunction. The fact that the footage had been obtained by trespass did not by itself make the broadcaster’s use of it unconscionable.
In describing the benchmark for privacy, Gleeson CJ provided the following formulation:
“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. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”
- Gleeson CJ, at 42
Therefore, introspection can be a useful tool when dealing with privacy: it can be easy to pick up a newspaper and read about another’s business, but upon consideration we would find it highly alarming if such information was to appear about ourselves in the press.
Do Individuals in Public Have Any Expectation of Privacy?
Prior publicity and conduct in a public place are relevant to the expectation of privacy. Where relief might affect freedom of expression and the material is journalistic, literary or artistic, s.12(4)(a)(i) of the Human Rights Act 1998 requires the court to consider the extent to which it is or is about to become public. A public place does not settle the question - indeed, Campbell was photographed in public (albeit when leaving a private meeting).
Appearing in public does not mean that a claimant loses all right to privacy. This can be seen in Peck v UK and was further confirmed in PJS v News Group Newspapers Ltd [2016] UKSC 26, where the Supreme Court restored an interim injunction to restrain publication of private sexual information even though the information had already been widely disseminated online, holding that publication in a national newspaper would cause additional and distinct harm.
Case in Focus: Peck v UK (2003) 36 EHRR 41 (App. No. 44647/98)
The applicant (an average, non-famous citizen) was photographed by CCTV wandering the streets with a knife, shortly after he had attempted to commit suicide in 1995. This CCTV footage was sent (perhaps insensitively, but not maliciously) to various local newspapers and a national TV programme, all of which published imagery of the applicant. After a failed attempt to have the council’s actions judicially reviewed, he applied to the ECtHR on the basis that his Article 8 rights had been breached. The court drew a distinction between being seen in the street and being shown to a mass audience in identifiable form. It found violations of Articles 8 and 13.
Thus, whilst there was certainly nothing wrong with the council using the CCTV for internal purposes, it had violated the applicant’s rights by releasing the footage without consent or adequate safeguards to prevent identification. Although the events of the case took place in 1995, the principle remains relevant today. Even in an age of widespread smartphone photography and social media, the courts continue to recognise that individuals may retain a reasonable expectation of privacy in public spaces depending on the circumstances, particularly where the nature of the activity captured is sensitive. In Murray v Express Newspapers plc [2008] EWCA Civ 446 the Court of Appeal allowed a child’s claim over a photograph taken on a family outing to go to trial. Age, the activity and place, the purpose of taking the photograph, and the absence of consent were relevant.
A public figure’s role and previous conduct may affect the balance, but celebrity is not consent to the publication of details of private life. A v B took the footballer’s public role into account. In PJS the Supreme Court distinguished a contribution to public debate from a story that merely satisfies curiosity about someone’s sex life.
Freedom of Expression
The second part of the Campbell test involves asking whether the claimant’s interest in privacy is outweighed by the competing interest in freedom of expression. That question arises in claims for damages as well as injunctions. If the press is involved in the privacy breach (as they invariably often are), the courts will also consider press freedom, under s.12(4) of the Human Rights Act, including the public interest in publication and any relevant privacy code.
This decision will be entirely dependent on the nature of the privacy breach. Thus a picture of a celebrity posing at an awards ceremony may attract no reasonable expectation of privacy in the first place. Conversely, a naked photo of a celebrity taken with a pinhole camera secretly hidden in their bedroom will require a proportionally massive justification (indeed, this would be such a great breach of privacy that it would more than likely be held as unjustifiable).
The essence of the defence’s argument will often take the form of a public interest defence. As noted above, this does not mean that just because the public are interested in something that it will be freely publishable (indeed, if the right celebrity’s bedroom were bugged, it would probably be of interest to the public). Conversely, it is also doubtful that much of the content of various publications could really be considered as being in the public interest - the world would function perfectly well without telescopic lens photos of female celebrities on their private yachts. An earlier view of the relevance of public interest in a newspaper’s contents can be found in the judgment in A v B:
“…it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. […] The court must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
- Lord Woolf CJ, at 11.
As PJS makes clear, the commercial appeal of a story does not by itself justify an intrusion into private life.
Exam Consideration: Since privacy law relies heavily on human rights law, it often involves abstract qualitative arguments, rather than the application of strict principle. It will thus often be important that you take notice of the facts of problem questions and ask what each party’s reasonable expectations would be in the situation.
Press Regulation
Following the Leveson inquiry, the Press Complaints Commission (PCC) was replaced in 2014 by the Independent Press Standards Organisation (IPSO) as the principal regulator for most of the UK newspaper and magazine industry. IPSO administers the Editors’ Code of Practice, which lays down the standard of behaviour expected of editors, including standards regarding respect of privacy (see Clause 2). If an individual believes that there has been an invasion of privacy, they can make a complaint about a member publication to IPSO, which in turn is able to require editors to publish corrections and adjudications. It should be noted, however, that in its complaints process IPSO does not have the power to grant other remedies, like injunctions or damages, and so its enforcement powers remain limited. A separate arbitration scheme allows an independent arbitrator to award damages on a legal claim against a participating publisher. A rival regulator, IMPRESS, was recognised as an approved regulator under the Royal Charter on Self-Regulation of the Press in 2016, although most major publishers have not joined it.
Other Notes on Privacy
As can be seen from the cases above, there are times at which the court will hold that there has been a breach of privacy, but that an injunction would still be an overzealous remedy (since it is essentially a wrecking ball as far as press freedom goes). Under s.12(3) of the Human Rights Act 1998, before trial the claimant normally has to show that it is more likely than not that publication should be restrained. The standard can be applied flexibly where the consequences of disclosure would be particularly grave (Cream Holdings Ltd v Banerjee [2004] UKHL 44). Refusing interim relief does not decide liability. Damages at trial may compensate for distress and loss of control of private information.
It is notable that the presence of litigation can actually make a given invasion of privacy more notorious - in essence, the claimant obtains the polar opposite of what they desired (even if they receive damages for the original breach of privacy). Colloquially, this is known as the ‘Streisand effect’ - named for a now notorious US case in which singer Barbra Streisand attempted to obtain an injunction against the publishing of pictures of her home on the Californian coast (on a website dedicated entirely to surveying coastal erosion, no less). For proof of the Streisand effect, you need look no further than any article on the matter - it will invariably contain the photo in question. In short: a wise claimant would be advised to be wary of jumping both feet first into litigation for breach of privacy.
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