A guide to making a privacy claim - what are they and how to succeed

Guide
Published: 2nd March 2022
Area: Litigation & Dispute Resolution

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It is a common misconception that privacy claims are the preserve of the rich and famous and while often of course it is those sorts of claims that receive the press attention; from Prince Harry and Prince William; to Michael Douglas, a wide variety of the rich and famous have brought important privacy claims.

The truth is however, every individual has the right to a private life and every individual’s private information can be misused.  Bringing a privacy claim will centre, more often than not, on a claim for misuse of private information.  Here is our simple guide to the basics of a privacy claim; the essential elements of it and the remedies that can be obtained.

Like many areas, privacy is a narrow specialist area where expert advice and input is critical.

Is there a right to privacy law in the UK? 

Yes there is and it is a relatively new cause of action based around the Human Rights Act. Everyone has a right to respect for private and family life; and Naomi Campbell and Michael Douglas’ claims in the early 2000s have helped build this area of law.  If someone has used your private information or attacked your privacy, you can do something about it.

Can I stop the publication of confidential information?

Yes you can.  Historically an individual could bring a claim for breach of confidence but the law has since been expanded far beyond that to areas which involve a wide range of matters not limited to publishing information.

What does the law now protect as a result?

The misuse of private information protects two key things.  It protects private information and it protects individuals from intrusion into their private life.  The courts even refer to this as invasion of privacy hence the title.

What do I have to prove to bring a privacy claim and succeed?

There are two key stages.

  • First, does the person wanting to bring a privacy claim have a reasonable expectation of privacy in the information complained about; and secondly, if yes,
  • is that expectation of privacy outweighed by any opposing interest (usually the interest of the party wanting to publish private information).

If the answer to the first is yes; and the answer to the second is no, a claimant has a good claim to protect their private information.

What is meant by the ‘publisher’ of the information?

Any individual, as well as any media outlet or other legal entity, is capable of publishing, in a legal sense, private information. Publishing in essence effectively means making that information known to someone who should not know about it.  For example, there have been a wide range of claims brought by ex-husbands and ex-wives concerning private information that has been thought to be misused.

Should everyone have a right to an expectation of privacy? 

The courts have said that this is what is called an objective question.  It is to take account of all circumstances which include the attributes of any claimant; the nature of the activity; the place it was happening in; the nature and purpose of the intrusion; the absence of any consent; and whether it was known or could be inferred; and the effect upon the claimant; and importantly, the circumstances in which and why the information came into the hands of the publisher.  It is a complicated test.

Is there any guidance on the objective question of privacy? 

There are certain general principles that have arisen mainly about particular types of information. For example, there is not any public interest in a legal sense in disclosure or publication of purely private sexual encounters even if they may involve adultery; additional considerations can give children rights to privacy in circumstances where adults would not; information about health will also normally be treated as private; public figures may enjoy less protection than private individuals; information about how people behave in private places such as their home is likely to have a reasonable expectation of privacy whereas, if an activity takes place in public whether it is private or not will depend upon the full circumstances.

How do I protect my reputation during a privacy claim?

This is a developing area but, there have been important cases where the fact that individuals have been suspected of criminal offences for example and therefore could suffer damage to their reputation, has been relevant. Being accused of a crime and any issues arising from that potentially becoming published need very careful scrutiny.

If I have a reasonable expectation of privacy how can that be outweighed? 

This is a balancing test.  Ultimately, no right, be it right of privacy or right of publication, always takes priority. Key considerations are:

- Does the publication contribute to debated general interest?
- How well known is the person who is the subject of the publication?
- The prior conduct of the parties;
- The manner of obtaining information and whether it is true;
- The content and form of the publication;
- The consequence of publication and the severity of any sanction.

There are therefore a wide range of factors that have to be taken into account and again, expert input is critical.

What remedies are available to me if my privacy is breached or my private information is misused?

There are two key elements; damages and an injunction.

Damages are to compensate you for loss or damage.  These will be for damages arising from the wrong itself; and to compensate for distress, hurt feelings or loss of dignity and importantly, can be increased for aggravating behaviour by the publisher.

Stopping publication via an injunction.  This is probably the primary scenario most people are most interested in.  A key principle here is that injunction will only be granted to restrain publication before a final trial determining matters, if the court is satisfied that the party wanting an injunction is likely (which means more likely than not) to establish that the publication should not be allowed.  In short, if the case is good enough and the circumstances are right, you can stop publication.

This is a guide only and as you can see it is a complicated and fluid area of law that requires specialist advice to navigate.

For more information on privacy claims - please contact Daniel Jennings below.

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Daniel is a highly regarded experienced specialist commercial litigator and defamation expert.

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