Breach of Confidence is a developing area of the law, the boundaries of which are not immutable but may change to reflect changes in society, technology and business practice'
Per Keene LJ in Douglas and Others v. Hello Limited and Others.
Discuss this statement in relation to the development of protection for private information and possible future directions for breach of confidence.
No, you can't publish that – It's Private!
Private Information ~ Changing Protection for Our Times?
How times have changed!
Once upon a time, one could have only taken a picture if one were fortunate enough to have one's camera with one. But with the advent of high specification mobile phones, camera and video grade images are instantly ready at one's fingertips. Similarly, it would have taken days to publish information or images, but with the coming of the worldwide web, information can cross the globe with the speed of light.
It is certain that technological advancements have significantly altered modern life as compared to that of our forefathers. And with the coming of faster, more accessible technology has come greater and arguably more invasive opportunities for the exploitation of individuals and their privacy. Arguably, our societal rules have similarly changed so that private information has been elevated to the ranks of sacred.
This paper seeks to examine the responses of the modern jurists and legislators to the new onslaught on private information in these modern times as well as possible avenues for future development of this area of the law.
The Original Protection Matrix
Where one had fallen prey to unscrupulous persons who breached one's confidence, one was allowed remedy under the Breach of Confidence provisions of Tort.
Megarry J, in the important case of Coco v. A.N. Clark (Engineers) Limited, laid down the three-prong rule for this area of tortious action. He held the test to be:
- That the information must have the necessary quality of confidence about it,
- That the information must have been imparted in circumstances importing an obligation of confidence, and
- That there must have been unauthorised use of that information to the detriment of the party communicating it.
Recent judicial dicta have attempted to enlarge the scope of the tortious remedy to include private information in the remedy that was once reserved for confidential information.
As was noted by Lord Nicholls in the case of Campbell v. MGN Newspapers Limited,
'information about an individual's private life would not in ordinary usage be called "confidential"'
How then is one to reconcile the distinction between confidential information and private information in dispensing remedy under this head of the law?
Recent Judicial Decisions
Of critical importance to this debate is the hotly contested suit of Douglas and Others v. Hello! Limited and Others wherein actors Michael Douglas and Catherine Zeta Jones gave exclusive publication rights of their wedding to OK! Magazine. The couple employed strict security at the wedding and attempted to ensure that no persons were allowed to take unauthorised photographs. Despite their efforts, United Kingdom based magazine, Hello! was able to secure unauthorised photographs. In initially granting the injunction, the trial judge held that Hello's actions amounted to breach of confidence. At the Court of Appeal the injunction was overturned but at the House of Lords it was maintained that the Douglas' had suffered damage that must have been compensated by the law of breach of confidence.
In the case of Campbell v. MGN Newspapers Limited, supermodel Naomi Campbell was the subject of an article by the Daily Mirror Newspaper that sought to prove that she lied when she informed the press that she was drug free. The Newspapers published photographs of the disguised claimant leaving a meeting of Narcotic Anonymous with a related article chronicling her fight with drug addiction. The House of Lords, using the doctrine of Breach of Confidence, gave remedy to the claimant citing that 'information about a person's health and treatment is both private and confidential.'
McKennitt v. Ash saw the Court of Appeal granting relief to a folk singer who had been befriended by the respondent. The respondent then sought to use information that he had become privy to in their private moments as the basis for his memoirs. The Court noted that although the cases seem to suggest that there may be a new area of tort for privacy, there is no English law to protect the invasion of one's privacy. It is only the law of Breach of Confidence upon which one can rely. Though Breach of Confidence may be the applicable remedy, the Court is hesitant in holding that receiving information that one ought to have known one could not use is really a situation of confidence capable of breach. Nonetheless, the damage to the claimant was deserving of compensation.
But the protection afforded by this judicial movement towards protection of private information, is not the sole province of the rich and wealthy.
In the case of Venables and Another v. News Group Newspapers the Court issued a controversial worldwide injunction preventing anyone from publishing material that may reveal the whereabouts of the two adolescents who had been found guilty of the horrific murder of toddler, Jamie Bulger. The Court held that the ground was that of breach of confidence as the two were entitled to continue their lives after having paid their debts to society.
Similarly in the case of Peck v. UK, Closed Circuit TV's caught images of the claimant wandering the streets with a kitchen knife in his hand after having just attempted suicide. The images while still recognisable were broadcast over television during the show 'Crime Beat'. The Claimant argued that the respondents had breached his rights to private life under Article 8. The Court upheld the claimant's position for although his actions had been filmed in a public place, the Court found that it was still necessarily private since they intervention of the respondents resulted in broadcasting to more persons than the claimant could have envisioned.
The Development of the Protection of Private Information
As outlined by the cases, the Courts have shown great hesitance in extending the realm of protection for private information into a tort in its own right.
Article 8 of the Human Rights Act, 1998 cites the fact that individuals have the right to protection of their private information. This is to be compared with Article 10 of the selfsame Act that guarantees the freedom of expression. So how have the rights been reconciled?
The application of the two articles and the impact of each have not been uniformly applied.
In one corner, proponents suggest that there is a horizontal effect whereby the Article 8 has been assumed to apply directly in cases concerning private information. The judicial dicta on the point are non-uniform as well. In the High Court suit of Douglas and Others v. Hello! Limited and Others Sedley J. suggested that the Courts must act 'compatibly' with the requirements of the European Convention on Human Rights, whilst in the case of A v. B plc a case seeking to restrain the publication of information about a prominent footballer's sexual exploits, Woolf CJ noted that the obligation of the Court was to 'not act incompatibly with the convention'.
Legal jurists and academics have seemed to settle upon a position that the Article is applicable in private law scenarios involving breach of confidence.
In essence then, the ambiguity in the application of the Convention and the Act means then that claimants and indeed judges, are still unsure on how far the protection of private rights can run.
Notwithstanding, the Court has seemed willing to invoke protection of private information. Yet even the standard for determining which information warrants protection is ambiguous.
In the Commonwealth case of Australian Broadcasting Corporation v. Lenah Game Meats Pty Limited the Court held that information capable of protection was information 'highly offensive to a reasonable person of ordinary sensibilities'.
It is evident, and frankly welcomed, that the Court would adopt an objective man test in determining the kind of information worthy of protection. This movement in the law of protection guards against the sensibilities of the overly sensitive, especially given that we must all exist in one society. Taken to its extreme tabloid photographs of film stars on the street, shopping in Knightsbridge would be sources of lawsuits if the test had been a subjective one. How then could the media operate?
Further, the Court has advanced and maintained the rule that information is not capable of protection if it is in the public domain. Yet even this test is vague.
In the previously mentioned suit of Peck v. UK, the claimant had been walking the public streets when the offensive footage was taken.
The Court in the case of AG v. Guardian Newspapers (no.2) attempted to clarify the test by holding that the important question is actually one of degree. Therefore exposure to a group of persons (such as the persons on the street in the case of 'Peck') would not prevent application of the protection of the law. The Courts in the cases outlined earlier, have suggested that exposure to 'substantial' numbers of persons makes the information public. How then is one to judge, with any certainty, the difference between limited and substantial numbers?
It is apparent form the foregoing that the Court has displayed a desire to protect private information, which would be injurious to the owners of such information should it be misused. Event the apparent problems in applying the traditional strict test of confidentiality has not prevented the Courts from offering protection to private information. Yet with the ambiguity that surrounds the application of the protection, it is difficult to reasonably depend on this protection.
Suggestions for Better Protection – Developing Breach of Confidence
The cases suggest that the Courts are adamant that they are not creating a new tort. In his decision in the case of A v. B plc, Lord Woolf noted that,
'in the great majority of situations, if not all situations, where privacy protection is justified, the action for breach of confidence will provide the necessary protection.'
Given the problems of ambiguity that plague the development of the protection for private information – is this really so?
How can one reconcile the thoughts expressed earlier that private and confidential information do not necessarily coincide?
Curiously, Parliament has not attempted to clarify the situation by the passage of privacy legislation, although such has been previously recommended Should this indicate a definite hesitation about enlarging the scope of protection when the Court seems to be moving into this area without declaring itself as doing so.
A lesson may be learnt from our Commonwealth counterparts who have created categorisations of encroaching into personal information that give definite directions into what constitutes actionable breaches.
In a time where the lines are increasingly blurred between private and public, it is time for the lawmakers to take a stand in laying down definite standards for protection.
A fitting last thought comes in the words of Piers Morgan, former editor of the Mirror as he commented on the case concerning Ms. Campbell,
'This is a very good day for lying, drug abusing prima donnas … if ever there was a less deserving case for creating what is effectively a back door privacy law it would be Ms. Campbell, but that's showbiz.'
A. v. B plc  3 WLR 542
AG v. Guardian Newspapers  1 AC 109
Australian Broadcasting Corporation v. Lenah Game Meats Pty Limited  HCA 63
Bently L., Sherman B., Intellectual Property Law (OUP, London, 2008)
BBC News Online, May 6 2004, (http.//news.bbc.co.uk.)
Campbell v. MGN Newspapers Limited  2 All E R 995
Canadian Department of Communications and Justice, Privacy taskforce, Privacy Report No.22, 1983)
Coco v. A.N. Clark (Engineers) Limited  R.P.C. 41
Douglas and Others v. Hello! Limited and Others  3 All E R 996
Gomery G., Whose Autonomy Matters? Reconciling the competing claims of privacy and freedom of expression, Legal Studies, Vol 27, No.3, September 2007, 404
Leigh I., Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth, (1999) 48 ICLQ 57
Peck v. UK (2003) No. 44647/98 (unreported)
Phillipson G., 'Towards a Common Law Right of Privacy', Modern Law Review, (Blackwell, 2003) 726
Report of the Committee on Privacy and Related Matters, Cm 1102, (HMSO, 1990)
Macqueen H., Protecting Privacy, Edin L R Vol.8 420
McKennitt v. Ash  EWCA Civ 1714 (unreported) 14 December 2006
Venables and Another v. News Group Newspapers  1All E R 908
 Douglas and Others v. Hello! Limited and Others  3 All E R 996
 Coco v. A.N. Clark (Engineers) Limited  R.P.C. 41
 Campbell v. MGN Newspapers Limited  2 All E R 995
 Douglas and Others v. Hello! Limited and Others, (n.1)
 Campbell v. MGN Newspapers Limited, (n.3)
 McKennitt v. Ash  EWCA Civ 1714 (unreported) 14 December 2006
 Venables and Another v. News Group Newspapers  1All E R 908
 Peck v. UK (2003) No. 44647/98 (unreported)
 See Phillipson G., 'Towards a Common Law Right of Privacy', Modern Law Review, (Blackwell, 2003) 726
 Douglas and Others v. Hello! Limited and Others, (n.1)
 A. v. B plc  3 WLR 542
 Leigh I., Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth, (1999) 48 ICLQ 57
 Australian Broadcasting Corporation v. Lenah Game Meats Pty Limited  HCA 63
 Per Lindsay J in Douglas and Others v. Hello! Limited and Others, (n.1), para 189
 Peck v. UK, (n.8)
 AG v. Guardian Newspapers  1 AC 109
 A v. B plc (n. 11) at p.11
 Report of the Committee on Privacy and Related Matters, Cm 1102, (HMSO, 1990)
 Canadian Department of Communications and Justice, Privacy taskforce, Privacy Report No.22, 1983)
 BBC News Online, May 6 2004, (http.news.bbc.co.uk.)