Held: Lord Woolf CJ said the footballer was a public figure so there was a public interest in disclosing the information about him. So public interest becomes 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 i.e. Woolf seemed to make almost everything is in the public interest

Facts: A model, who had previously denied abusing drugs, was photographed leaving a meeting of Narcotics Anonymous. An accompanying article gave details of her treatment

Held: She succeeded in a breach of her privacy

⇒ “This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship.” → so there is no need to have an initial relationship of confidentiality as Oseley J had suggested in the case of Theakston v MGN [2002] (below)

⇒ “Even this formulation is awkward. The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable”

⇒ “Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information.” → so confidentiality is no longer the requirement; privacy of the information is the requirement!

⇒ “Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.” → 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)

• The onus will then shift to the defendant to establish his Article 10 rights (i.e. freedom of expression) and show there is a public interest in publishing the information
• Thus, disclosing info about her treatment here was breaching her privacy

Facts: In November 2000, one month after the commencement of the Human Rights Act, Michael Douglas married Catherine Zeta-Jones. Rights to publish photographs were sold to OK magazine, and it was made clear to guests and staff that they were not allowed to take photographs. Douglas became aware that Hello! magazine had acquired photographs and were planning to publish them.

Held: The court said the following:

⇒ [110] “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”. Unlike before the Human Rights Act where they had to use legal tools (i.e. trespass to land) to protect privacy

⇒ [111] Sedley pointed out following the HRA that there is not only a “positive institutional obligation to respect privacy”, but “[the courts] must also act compatibly with that and the other Convention rights”

⇒ “This, for reasons I now turn to, arguably gives the final impetus to the recognition of a right of privacy in English law”

Facts: This was a claim by Rio Ferdinand in misuse of private information. The misuse in question was the publication of a story relating to a relationship he was involved in.

Held: In carrying out the balancing exercise between the right to privacy of the claimant and the public interest in publishing the story, two significant factors were Ferdinand’s position as captain of the England football team; and that he had presented himself in the press as someone who had grown up and settled down as a family man.

Facts: Costeja Gonzalez complained that, when an internet user entered his name into the Google search engine, one of the links would be to a true, accurate newspaper report, that is in the public interest, relating to the sale of his house to recover debts. Under the preliminary ruling jurisdiction, the Court of Justice of the European Union (CJEU) found that a search engine was processing data as defined by the Data Protection Directive (95/46/EC). That meant any processing had to be in accordance with the principles in that directive: these included respecting their fundamental rights and freedoms, including the right to privacy.

Held: The CJEU held that the processing of personal data by search engines could have a serious effect on the right to privacy of an individual, as information potentially concerning a ‘vast number of aspects of his private life’ could be readily obtained. In light of the potential seriousness of this interference, it could not be justified by the economic interest of the search engine provider. So there IS a right to be forgotten under the European data protection law. However, other internet users might also have a legitimate interest in the information retrieved. These interests should be balanced:

• The court said that in general terms the individual’s rights override the interest of internet users, but that balance depends “on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information”
• This judgment means that persons may request search engine providers to exclude links to information where the publication of the information was a breach of their right to privacy.
• The information will not be deleted from the originating web-site: the newspaper in which the story was published did not have to delete the story.

⇒ 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)

Facts: Max, the son of Oswald Mosley, was photographed taking part in what was described as a Nazi Orgy. He brought an action for breach of confidence and won

Held: Eady J. held that there might have been a public interest defence available to the News of the World, had there been a Nazi element to the event. However, in the absence of a clear Nazi theme, there was no public interest in disclosing details of his private life. Accordingly, given the reasonable expectation of privacy, there was “an old fashioned breach of confidence”

⇒ “Although the law of “old-fashioned breach of confidence” has been well established for many years, and derives historically from equitable principles, these have been extended in recent years under the stimulus of the Human Rights Act 1998 and the content of the Convention itself. The law now affords protection to information in respect of which there is a reasonable expectation of privacy, even in circumstances where there is no pre-existing relationship giving rise of itself to an enforceable duty of confidence.”

Facts: McKennitt was a well-known singer and Ash was her close friend. McKennitt was a private person, who had never discussed her private life. McKennitt brought an action to prevent publication of a book written by Ash about her. The court used what was established in Von Hannover and Campbell (i.e. modern privacy law) to reach their decision

Held: The 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

⇒ How is article 10 of the ECHR (right to freedom of expression) balanced against article 8 (right to privacy)

• “(i) neither article has as such precedence over the other;
• (ii) where conflict arises between the values under articles 8 and 10, an "intense focus" is necessary upon the comparative importance of the specific rights being claimed in the individual case;
• (iii) the court must take into account the justifications for interfering with or restricting each right; and
• (iv) so too, the proportionality test must be applied to each”

Facts: Peck was captured on CCTV carrying a knife, with which he intended to cut his wrists. The CCTV footage was later shown on local and on national television. Peck claimed that his Article 8 rights to respect for his private life had been interfered with.

Held: The European Court of Human Rights upheld his claim. They noted that anyone in a public place would expect to be seen by others, and possibly that there movements would be recorded by security cameras. However, here, the degree of public exposure was far greater than he could have anticipated

Facts: In this case, the claimant was a well-known figure, who had previously disclosed intimate details about her life that other people might reasonably expect to keep, and be kept, private. These included details of sexual and medical issues. The information which was at issue was no more than was already in the public domain, with additional detail. The court heard an application to strike out, meaning that even if proved the damage to her right to privacy would be too trivial and therefore would be an abuse of process (this claim failed, and said it should go to trial).

Held: So, this was an application to strike out the claim, on the basis of abuse of process (i.e. the process is disproportionate to any remedy that may be expected)

Facts: Goodwin was chief executive of RBS and wanted injunction to prevent disclosure of his sexual antics.

Held: The court had to decide whether there was a public interest, by determining if he was a public figure. The court held he was a public figure due to the role he played as “an exceptionally forceful businessmen” at “one of the largest publicly quoted companies in the UK"

⇒ “This distinguishes him from sportsmen and celebrities in the world of entertainment, who do not come within that definition. But even in the case of sportsmen, there may be a public interest if the sexual relationship gives rise to conflicts with professional interest or duties, for example to his team”

Facts: Theakston, a well known television presenter, was photographed at a brothel. He applied for an injunction to prevent publication of the photographs in the Sunday People (a national newspaper)

Held: The injunction was refused by Oseley J. He did not think details of sexual activities are confidential (i.e. he did not think relationship between prostitute and client was a confidential one, so there should be no right to privacy)

Facts: Princess Caroline of Monaco brought an action to restrain the publication of photographs of her in her daily life. She lost before the German courts, so appealed to the European Court of Human Rights and won.

Held: The court said that “private life includes a person’ physical and psychological integrity”. Article 8 “is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings”. So Article 8 gives you a private sphere in which you can develop as an individual

⇒ The court also said a person doing something in public can be private

⇒ The court said that although Article 8 is intended to protect “the individual against arbitrary interference by the public authorities” it “does not merely compel the State to abstain from such interference” i.e. There is a positive obligation not to just prevent interference in private life by the state but also by individuals