⇒ Following the commencement of the Human Rights Act in 2000, it has been used by claimants wishing to protect their privacy i.e. the Human Rights Act gave the courts a machinery to start enforcing a right of privacy

⇒ See, for example, Douglas v Hello! Ltd [2001] where the court recognised a right of personal privacy

⇒ Also see Theakston v MGN [2002]

⇒ Article 8 of the ECHR provides a 'Right to respect for private and family life' and has been relied on in a number of cases involving privacy

• See, for ecample Peck v United Kingdom (2003) and Von Hannover v Germany [2004]

⇒ See, for ecample Campbell v Mirror Group Newspapers [2004]: "Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy." In other words, if there is a reasonable expectation of privacy they will be protected by Article 8 of the European Convention on Human Rights and prima facie there will be a right to restrain someone publishing that information (Lord Nicholls)

⇒ In McKennitt v Ash [2006], court said there are two things that must be looked at “where the complaint is of the wrongful publication of private information”:

• “First, is the information private in the sense that it is in principle protected by article 8 of the European Convention on Human Rights (right to private and family life)? If "no", that is the end of the case.”
• “If "yes", the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10 of the European Convention on Human Rights? The latter inquiry is commonly referred to as the balancing exercise” (Buxton LJ) → i.e. the court is deciding between the right to privacy v right to freedom of expression

⇒ Also see the case of Max Mosley v News Group Newspapers [2008]

⇒ In A v B [2002], Lord Woolf CJ said that 'public interest' is the key issue in privacy: if there is a public interest in disclosure that must be balanced against your right to privacy. But note, just because the public are interested in something does not necessarily make it in the public interest, but that's what Lord Woolf seems to be saying

⇒ In Von Hannover v Germany (No 1) [2004] the court said for something to be in the public interest it must contribute to political or public debate

⇒ In Jameel v Wall Street Journal [2006] it was said the public only have a right to be told of something if there is "a real public interest in communicating and receiving the information". There is a difference between public interest, and what the public are interested in (e.g. “tittle-tattle about the activities of footballer’s wives” is not in the public interest) (Hale)

⇒ ‘Public figures’ encompasses not only public officials, but also prominent members of society

⇒ See the following cases of privacy involving a public figure: Sir Frederick Goodwin v NGN Ltd [2011] and Ferdinand v MGN Ltd [2011]

⇒ If there has been previous disclosure of private information then it may be more difficult to claima right to privacy: see, for instance, Price v Powell [2012]

⇒ Data protection legislation was originally introduced to deal with personal data held on computer. The 1984 Act (repealed by the 1998 Act) provided that:

• 1(2) "Data" means information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose.

⇒ To avoid the effects of the Act, some organisations that held data used paper based filing systems, as these were not covered by the Act. This allowed them to avoid informing people what info was held on them.

⇒ Under the 1998 Act, ‘data’ includes electronic and paper data in a ‘filing system’. The main aim is to control personal data stored ‘in bulk’ by organisations such as the NHS, education providers, criminal records bureau etc.

⇒ The Act provides that such data should be kept secure, confidential, only used for the purposes for which it was gathered and not passed onto third parties without the permission of the ‘data subject’.

⇒ The Data Protection Act 1998 does give data subjects a statutory right to confidentiality, in respect of information about them held on computer or in a ‘filing system’.

⇒ In Campbell v Mirror Group Newspapers [2004], the claimant originally issued proceedings in breach of confidence and under the Data Protection Act. It was held that the Data Protection Act claim added nothing to the claim for breach of confidence [130]

⇒ The best example of this is seen in Google Spain v Agencia Espania de Proteccion se Datos and Costeja Gonzlez (C-131/12)

⇒ This case has given rise to what has been called the ‘right to be forgotten’. Although the information is both true and in the public domain, therefore would not, under usual circumstances, be considered as private, the ease with which search engines can retrieve historical information and display it is an interference with the privacy of the individual.

⇒ Google had, as of October 2014, received 18,000 requests to remove information from its search results and had actually removed 35% of them. The sort of information removed included references to spent convictions and news stories about a doctor who had been negligent. Other requests were refused, such as a public official who asked for references to a student petition demanding his removal. (Guardian)

⇒ There are three main remedies available to claimants

• In some cases, where the claimant becomes aware that private matters are likely to be published, he or she will seek an injunction to prevent the publication;
• If the details have already been published, the claimant will seek damages for the breach of his or her privacy and an order to prevent further disclosure or repetition.

⇒ What they don't have is a right to be notified

• Moseley took a claim to the European Court of Human Rights (Mosley v United Kingdom [2011]) saying Article 8 implied a right to be informed. He said remedies should be effective and for the right to privacy to be effective there should be a right to be notified of something be said about you so you can anticipate a breach of privacy (i.e. paper should have a duty to inform of a potential breach). This claim was rejected

⇒ An injunction may be interim or final; the court may grant an injunction following a hearing which is either ‘ex parte’ or ‘inter partes’.

• An 'ex parte' injunction is an injunction made without notice i.e. you ring a High Court judge at night and ask for an injunction

⇒ A claimant who makes out a claim in privacy at trial will normally be entitled to damages

⇒ The ‘ex parte’ interim injunction may be the most effective remedy.

• A court order is ‘ex parte’ if it is granted on application by one party following a hearing in which the other party is not present and has not been notified of the application. Such injunctions may be granted at any time: there is a duty High Court judge available to hear applications 24 hours a day.

⇒ In some cases, however, the courts have granted ‘super-injunctions’. This is not a legal term, but one coined by the media. They differ from an injunction in that they also prevent the parties to the case from revealing the existence of the injunction to any third party. In particular, they prevent the media from publishing the fact that an injunction has been granted → so to disclose the injunction exists would be a contempt of court