I have chosen a privacy question, as this topic seems to be gaining currency on tort courses, is now a distinct chapter in textbooks (even revision guides) and also brings in a blend of ‘pure’ tort and some of the human rights jurisprudence that is increasingly a feature of the study of modern tort law.  It also enables me to comment on the use of case law, analysis, response to questions, etc. – all of the things that I believe should be features of effective feedback.

Key points

I think that the point should be made – if it isn’t already -  in this feature that feedback is not just about giving a negative critique of what the student has produced, and that they should be shown ‘how to’ as well as ‘how not to’.

The Question

In Campbell v MGN Ltd [2004] AC 457, Lord Nicholls observed that ‘protection of various aspects of privacy is a fast developing area of the law’. (At p. 464.) By reference to the relevant authorities, analyse developments in the law of tort that drew his Lordship to this conclusion.

Good

   Podcast: the Good     

There has been an apparent degree of reluctance for either Parliament or the courts to create a specific tort for the invasion of privacy. As an alternative, recent years have seen the courts attempt to develop principles that can then be applied, sometimes rather awkwardly, to fit to certain instances where claimants have complained of interference. Therefore, the statement by Lord Nicholls requires context and evaluation to determine its accuracy. (1) It is very important in an essay to address the specific question asked of you. Providing a general introduction to contextualise the question suggests to the reader that you have a grasp of the issues. It also helps to give you an 'anchor' in an exam situation.

First, in terms of the ‘landscape’ of legal developments, some consideration was given to the developing of statutory responses in the 1960s and this was revisited again most recently by the Calcutt Committee in 1990.  In all circumstances Parliament was reticent to intervene and create a statutory tort protecting individual privacy.  Other than direct media intrusion, there has been piecemeal development, charted by a number of authors (2) Such as? Despite the accuracy of the statement, it is always good to add a named reference. The point made, though, is accurate and does reflect the question; it does not assume that the question is solely concerned with privacy in a press context (although the context of Campbell means that the question is asking for that to be the predominant consideration) and so it is useful to at least note that fact before moving on. , of subject specific protection, such as the Data Protection Act 1998 and the Protection from Harassment Act 1997. However, none of these provisions provides a general tortious mechanism to protect privacy. Very clear gaps in the law have been exposed in cases such as Kaye (1991) and in Wainwright v Home Office (2004), which are suggestive of a failure in the approach taken to date.

In Kaye for example, four torts were alleged by the claimant, who was falsely claimed to have consented to be interviewed and photographed whilst critically ill in a hospital bed.  His success on the grounds of malicious falsehood merely prevented the tabloid from claiming that he had agreed to publication, and the pictures and interview were published regardless, thereby, as was recognised by the court, invading his privacy without sufficient legal redress (3) The case is well used. It is not just a statement of facts, and what the decision was. It has a place in the developing argument and is referential to the need shown above that there is a need to address failings in the law. .  Indeed, in the case itself, Lord Justice Glidewell was clearly of the view that the claimant’s privacy had been invaded, and that it was for Parliament, but not the courts to provide effective redress.  As there remains no statutory intervention, it is necessary to examine other reasons why the law has developed as Lord Nicholls has observed.

It seems that the main driver has been the coming into force of the Human Rights Act (HRA) 1998, which enables claimants to claim the rights contained in the European Convention on Human Rights (ECHR) in the UK courts.  Section 6 of the HRA requires the courts, as public authorities, to develop the law in accordance with the ECHR rights.  The problem with privacy cases is that there are competing rights to consider.  First, there is the right to respect for privacy guaranteed in article 8 (4) Strictly speaking the right is not one of 'privacy' but goes much further than that. It is also not a 'guaranteed' right, which might suggest that it is 'absolute'; rather it is subject to qualification in certain circumstances. ; and article 10 provides a right to freedom of expression.  At first glance the two might seem incompatible.  The HRA provides, in s 12 that the courts must, however, balance these competing claims.  The way in which they have done so, would appear to reflect the developments in the law identified by Lord Nicholls, which have been developed more recently following the decision in Campbell. It should be noted at this point that the majority of the cases have concerned celebrity figures, although it should be pointed out that the principles would apply universally.

The development has been seen in a series of cases in which a relatively small branch of law, with its roots in equity, called breach of confidence has been manipulated to permit the courts to find in favour of claimants in ‘privacy’ cases. The doctrine was developed from a three-stage test, which had been outlined in a case with nothing to do with what we understand to be ‘privacy’.  The case of Coco v Clark was concerned with the use of design information, but the test, outlined by Megarry J was stated to be that: first, the information must have a necessary quality of confidence about it; second, the information must have been given in circumstances that created an obligation of confidence; and finally that there must be an unauthorised use of that information which was detrimental to the party whose information it was. A refinement occurred in the Guardian Newspapers case in 1990, where it was held that there was no need for a pre-existing relationship. (5) This is nicely summarised, and hopefully will help to keep a focus on the analysis of the developments in the law as the essay progresses. It is good to have a point of reference, so that you can compare back and the marker is able to see how you are approaching the answer. The first real use of the formulation in relation to what we have come commonly to understand as a privacy issue was in the case of Douglas v Hello, where the claimants sued the defendant gossip magazine over the publication of unauthorised photographs of their wedding.  They had ‘sold’ the rights to the photographs to a rival publisher, and in full knowledge of this fact the defendant published secretly taken photographs.  It was held that the publication of the photographs amounted to a breach of confidence.

The high point of the development in the law to date was the decision in Campbell v MGN as referred to in the question. Here, the House of Lords blended the obligations placed upon the courts by the HRA to give effect to the balancing act between articles 8 and 10 of the ECHR, whilst at the same time using the breach of confidence concept to find for the claimant.  The case arose after pictures of the claimant leaving a meeting of the drug rehabilitation group Narcotics Anonymous, and details of drug rehabilitation treatment she was receiving, were published by the defendant newspaper. It was held, by a 3-2 majority, that there had been a breach of confidence in that the publication of details of her treatment was confidential information which the defendant was under a duty not to disclose.  The case also redefined the test from Coco, stating that the duty arose where there would be a reasonable expectation of privacy in relation to the information and that the scales were tipped in favour of privacy over freedom of expression (6) This is slightly simplistic, but in the context of an examination answer it would be okay. It does convey the basic, if not extended, point but is not quite refined enough to be totally unambiguous. It might have been useful here to have considered the arguments put forward by the defendant that it was in the public interest to publish given Campbell's denials of her drug use. . 

The Lords’ analysis raises the question of what private information actually is.  In Campbell it was offered that it would be information about a character that a reasonable person would find offensive if revealed about them.  That view was later applied in the case of McKennit v Ash, in which a singer successfully claimed a breach of confidence in relation to personal material, relating for example to her deep seated fears, and relationship issues, which was contained in a book written about her by a friend. The decision in McKennit also reflected the decisions of the European Court of Human Rights (ECtHR) on the issue, and particularly the most significant case of recent times, Von Hannover v Germany.  The case was brought by Princess Caroline of Monaco because of the constant intrusion into her life by paparazzi photographers, who photographed her doing all manner of mundane tasks and ultimately took long-lens pictures of her enjoying a meal in a restaurant.  Because the German courts had taken a view of privacy that meant that her celebrity was an issue of general interest, nothing was done to prevent the intrusion.  The ECtHR held that the public doesn’t have a legitimate interest in how people behave in their general lives, even if it means that sometimes they are in ‘private’, such as having a meal in a restaurant, despite the place itself being public, a point confirmed in Murray v Express Newspapers. (7) Again, despite the fact that this is reasonably accurate, it is slightly clumsy. Being hyper critical, a 'perfect answer' would also have reflected that the pre-Von Hannover position was something applied by the English Courts as well in cases such as A v B and Theakston (despite the latter case differentiating between text and pictures).

A series of later cases have confirmed this view as being the correct one, although the court has also looked at the motive in some instances (see CC v AB) (8) This is correct, but looks as though the writer is running out of steam, or maybe time. In an examination, it is more acceptable to pay passing reference to a case than it would be in an assignment, but it is still not the greatest style. Of course, if time is not one your side, it may be the only option. . Recent cases involving high profile sports people – Mosely v News Group Newspapers, and LNS v Persons Unknown – have made the picture slightly more confusing.  In the former case, it was held that the sex life of a person was not in the legitimate public interest, and the claimant received damages against the defendant News of the World.  In the latter case, involving the adultery of an England football player, it was held that his position as a role model, and the fact that the primary concern in trying to suppress publication was the affect it could have on his sponsorship, enabled the court to hold that publication was legitimate. There was also an increase in so-called 'super-injunctions' to try to prevent publication of private information.

From the above discussion it can be seen that Lord Nicholls’ statement is an accurate reflection of the current state of the law in the UK.  There have been considerable developments, most linked to the greater and more far-reaching development of human rights jurisprudence, and the greater willingness of the courts to become involved in the balance between the freedom of expression and the right to a private life.  The whole area of privacy is complex and cannot be simply reduced to stories about celebrities, although they have undoubtedly provided the most obvious legal developments to date. In 2011, the Leveson Inquiry on Culture, Practice and Ethics of the Press was set up as a result of the phone hacking scandal, in which it was found that celebrities and others, such as crime victims, had had their phones hacked. As a result of this inquiry's findings, there are likely to be developments in both staff regulation legislative intervention into this area in the future. (9) The conclusion is supported by what has come before it. It ties the concepts together effectively and concisely and provides a clear response to the question. The Murray reference is correct, but it doesn't explain 'how' it confirms what went before.

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I have chosen a privacy question, as this topic seems to be gaining currency on tort courses, is now a distinct chapter in textbooks (even revision guides) and also brings in a blend of ‘pure’ tort and some of the human rights jurisprudence that is increasingly a feature of the study of modern tort law.  It also enables me to comment on the use of case law, analysis, response to questions, etc. – all of the things that I believe should be features of effective feedback.

Key points

I think that the point should be made – if it isn’t already -  in this feature that feedback is not just about giving a negative critique of what the student has produced, and that they should be shown ‘how to’ as well as ‘how not to’.

The Question

In Campbell v MGN Ltd [2004] AC 457, Lord Nicholls observed that ‘protection of various aspects of privacy is a fast developing area of the law’. (At p. 464.)

By reference to the relevant authorities, analyse developments in the law of tort that drew his Lordship to this conclusion.

Fair

   Podcast: the Fair     

While it has been previously stated that there is not a tort of privacy in the UK, there is some protection that can be seen through the application of other torts. The torts of trespass, defamation and malicious falsehood have all been called on to protect various privacy interests, but each has its own rules and each is not specifically designed to protect a person’s privacy in the widest sense.  There have also been a number of acts of Parliament which also offer some limited secondary protection of peoples’ privacy interests.   This essay will consider the developments in the law that led to Lord Nicholls’ observation. (1) While there could be a little more detail (for example, where has it been 'previously stated'?), this is a clear opening paragraph, which identifies the task at hand and suggests that it will stay relevant to the question.

Key developments in the law have been seen through a series of cases involving well known celebrities, as will be examined below.  The importance of protecting privacy though is not limited to celebrities, as was seen in the case of Venables v News Group Newspapers, and also in a human rights case of Peck v UK.  The way that English law has developed to protect privacy has been driven by human rights considerations and the coming into force of the Human Rights Act 1998.  This Act has meant that the law has had to develop in a way consistent with the European Convention on Human Rights.

In the Wainwright case the judge said that there was not a specific right to privacy in English law.  He said that it would be undesirable for the courts to get involved in creating one as well.  That point was later picked up by Baroness Hale in the case of Campbell, where she was of the opinion that a privacy law could not be created by the courts even if they wanted to.  Other cases, though, such as Mosely v News Group Newspapers have given the impression that the judges have created such a law even if it is not a specific tort in its own right.  In that case the judge, Eady J, was subsequently criticised for creating an undemocratic law. (2) Although this paragraph is accurate, it does jump about a bit. It would benefit from better explanation, as there is a lot of knowledge that is being assumed and it gives the impression of something that has just been learned by rote. Explain why the law undemocratic.

An issue to consider is why the law has developed in the way it has. (3) That is a statement of the obvious, as it is what the question is asking you to do.   Some writers have noted that there has not been a clear definition of what privacy actually is.  Others have noted that the fact that Parliament has been unable to come up with a definition means that it is more difficult for the courts to do so and be consistent in that.  There were attempts to define privacy and to create a law as far back as the Younger Committee in 1972, but the difficulty of balancing the competing interests of privacy on the one hand and freedom of speech on the other meant that the law did not develop to a degree where it could easily be seen what would give rise to an action for a claimant. (4) This is a little vague. Whereas the preceding couple of paragraphs contained some specific examples, this one is more limited.

The limitations of privacy laws in English law were dramatically demonstrated in the case of Kaye.  Here an actor who was in intensive care was photographed and interviewed while very ill and suffering from head injuries.  His claim for an invasion of privacy failed, despite the court agreeing that there had been a clear invasion of his privacy.  The only remedy he had was in the tort of malicious falsehood as the paper had stated that the interview had been printed with his permission. (5) This is good; it highlights the inadequacy of the law as it existed. This was not sufficient to prevent the publication.  Despite this clearly unsatisfactory decision, the law was not changed by either Parliament or the courts.

The most important development of recent times has been the adoption of the European Convention on Human Rights (ECHR) through the Human Rights Act 1998. Article 8 of the ECHR protects a person’s right to a private and family life.  A key case where the extent of the right was considered by the European Court of Human Rights was the case of Van Hannover v Germany where Princess Caroline of Monaco recovered against paparazzi photographers who took pictures of her in a restaurant. Set against this right though is article 10, which permits freedom of expression.  It is a difficult balance, as Lord Hoffmann observed in Campbell, and was noted by Lord Nicholls that the development of the law of privacy had a lot to do with the passing of the Human Rights Act.  (6) This is reasonably good; it would be improved by noting that the HRA explicitly provides that the competing interests be weighed together in s 12.

How the courts have dealt with the Human Rights aspect can be seen in the way that they have adapted the equitable doctrine of breach of confidence to cover privacy issues. (7) As well as the sentence being a little clumsy, it does not actually make explicit why the courts would develop the law, which is concerned with the obligation set out in s 6 HRA.

Originally applied to disclosure of confidential information in primarily commercial situations, it has been adapted for use in cases of personal information.  The case of Coco v Clark required a duty of confidentiality to be owed which was then later breached.  The duty of confidentiality was based on the quality of the information – should the person holding it have been aware that disclosing it would be wrong?   This then presupposed that there was an existing relationship between the parties, because they would have to know each other to understand the quality of the information and enable the obligation of confidence to arise.  The requirement for a pre-existing relationship has since been removed.  Instead, a duty of non-disclosure can arise when a person obtains private information and knows/should know that this information should be kept confidential.   On the flip-side is the fact that there is a public interest defence to the disclosure.

Looking at the case law shows how the law has developed. In Douglas v Hello the defendant’s publication of illicit photographs taken at a celebrity wedding, when it was widely known that there was an exclusivity deal with another publication resulted in a successful action using breach of confidence.  The leading case of Campbell, extended this slightly further with Lord Nicholls suggesting that a new tort of misuse of private information had been created.  Here the claimant sought damages against the defendant newspaper, which had published details of her treatment for drug addiction as well as photographing her leaving a Narcotics Anonymous meeting.  Importantly, Campbell developed the test: reasonable expectation of privacy lay where it was obvious that the information published was ‘private’.  In the context of the case, this meant that treatment details remained private, whereas the photograph did not fall into that category.  Divulgence of personal information went a step further in the case of McKennitt v Ash, where a former friend of a singer published material relating to her love-life and other very personal information about her life.  What is key to the determination, therefore, is what type of information is to be considered private, and whether there is a public interest reason for publication.

Two recent cases have brought the issues into sharp relief. In the case of Mosely, the News of the World’s undercover reporting of the claimant attending a sado-masochist orgy was held to be a breach of confidence in that there is no general interest in another’s sex life.  The defendant had tried to argue that there was a Nazi theme to the proceedings and that given that the claimant had a high profile position in a leading sport it was in the public interest.  The court found no such theme to be present and the claimant was successful.  This compares with the Terry case, where the extra marital affairs of the England football captain were held not be sufficiently private not to be published, although the issue appeared to be more concerned with potential impacts on sponsorship deals, and team morale, than the effect on his family. (8) It is good to include (and contrast) contemporary applications of the law, although the decisions in both could be slightly better explained.

In conclusion, the law has developed a long way since the failings that were exposed though the Kaye case.  Driven by the need to provide remedies in accordance with the ECHR, the HRA has empowered the judges to act.  In the face of controversy in establishing the balance between freedom of expression and privacy, however, it may be that Parliament should consider legislation in order to bring clarity to the definitions and take the pressure off the courts.  Lord Nicholls’ observation that there is no overarching privacy tort remains true at this point in the law’s development. (9) The conclusion successfully ties together the threads that went before it and once again brings the material back to an explicit answer to the question asked.

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I have chosen a privacy question, as this topic seems to be gaining currency on tort courses, is now a distinct chapter in textbooks (even revision guides) and also brings in a blend of ‘pure’ tort and some of the human rights jurisprudence that is increasingly a feature of the study of modern tort law.  It also enables me to comment on the use of case law, analysis, response to questions, etc. – all of the things that I believe should be features of effective feedback.

Key points

I think that the point should be made – if it isn’t already -  in this feature that feedback is not just about giving a negative critique of what the student has produced, and that they should be shown ‘how to’ as well as ‘how not to’.

The Question

In Campbell v MGN Ltd [2004] AC 457, Lord Nicholls observed that ‘protection of various aspects of privacy is a fast developing area of the law’. (At p. 464.)

By reference to the relevant authorities, analyse developments in the law of tort that drew his Lordship to this conclusion.

Ugly

   Podcast: the Ugly     

It could be argued that in English law there is no specialist tort for the invasion of privacy. (1) This is a poor opening. 'It could be argued' is very vague in the context of a quote that is definitive on the issue.   If that is the case then it is unlikely that there could be developments in the law that would create a civil liability for invasions of it.  This essay will compare and contrast (2) Pay specific attention to what the question asks. There is no requirement to compare and contrast US and UK law. the law in the USA and the UK in establishing how privacy claims are dealt with.

There is a great deal of similarity between defamation and privacy claims in English law, although the former has never been seen to protect privacy rights.  But because there is a problem with determining whether published material is defamatory or not, there is a potential role for privacy.  Defamation can be either permanent or temporary.  If it is permanent, it is usually known as libel, and if it is temporary, such as speech, it is known as slander.  Words used must be capable of defamatory meaning, must be able to be seen to refer to the particular claimant and must also have been published, which is when a third party is informed.  Because of the cost of bringing or defending a defamation claim it may be that this can prevent a person from publishing material about another person if that person indicates that they might bring an action in defamation, which would then protect their privacy. (3) This entire outline of defamation, as well as being very superficial, is completely superfluous and a waste of words. It does nothing to address the question and is irrelevant.

American law has been described as being complicated, but does offer a person some means to protect their own privacy.  The balance is different to English law though because of the fact that there is a constitutional right guaranteed for freedom of speech, and so the law that has developed has been established in that context and there is a better balance.  It was argued by American writers Warren and Brandies that there should be a right to privacy like there is a right to property (4) It is always good to make reference to academic writing in an essay. However, it is important to accurately reflect the point made, and it helps if the name (Brandeis) is correctly spelt.

It was stated in the case of Wainwright that there is no English tort of an invasion of privacy by Lord Hoffmann.  In that case a strip search of a mother and son when they visited a relative in prison was claimed to have caused psychiatric harm, and was claimed to have been a breach of their privacy. It was held that there was no remedy, so we can see that the courts were not able to find an invasion of privacy in that case.

In the case of Campbell, a celebrity model, who had denied that she was a drug addict, was photographed leaving a drug clinic and the picture was put on the front page of a tabloid newspaper.  The model successfully claimed that the publication of the picture and details of her treatment was a breach of her privacy.  This was because, there was not a public interest in the details of her medical treatment and like anyone else she had a right for that sort of information not to be disclosed.  This was even so despite the fact that the claimant had previously said she was not a drug user. It seems, though, that it is just celebrities that are taking advantage of privacy laws.  In a case involving Catherine Zeta-Jones getting married, a photographer from a magazine published unauthorised pictures.  The pictures were unauthorised because the claimant had signed an exclusive deal with another magazine to publish the pictures (5) While the very basic facts are here, there is no context or explanation of the legal principles so the content does nothing to contribute to the answer.

Like in the American situation though there is a need to balance the need for privacy with the need for free speech.  This is definitely the case now in English law since the Human Rights Act 1998.  Article 8 of the Act protects privacy and so because of this the English courts have to make sure that a person has a remedy if their privacy rights are breached.  But article 10 of the Act guarantees freedom of expression so it is hard to restrict information on the grounds of privacy. (6) The Human Rights Act does not contain 'articles'. Instead it permits the application of the European Convention on Human Rights, which does, of course, have articles, in the UK courts. It would depend on the type of information that was involved in the case.  If it was personal information, there is case law to suggest that it should not be able to be published if a person does not want it to.  That is unless it is in the public interest to publish it, which was not the case in Campbell. (7) This whole aspect needs far more focussed explanation. It struggles to convey any real meaning to the reader and is highly fragmented; lots of concepts are being introduced, but none properly examined.

So this brings us to how the tort law has developed. (8) How does it 'bring us' here? The structure does not make that leap in any way obvious. The courts have been reluctant to develop the law themselves and have preferred it to be left to Parliament who have also not taken the opportunity to introduce a general law.  It was considered way back in the 1970s by committees, which did not turn into law and now there is only a voluntary code of practice that the press self-impose on themselves. Instead they have passed specific legislation like the Prevention from Harassment Act.  The development in tort law started with the case of Kaye, where an actor was photographed in a hospital bed and was said to have given an interview.  It was recognised that his privacy had been breached but there was no remedy the courts could give him to prevent the publication of the pictures and interview. 

Times have changed, though, and the case of Max Mosley who got awarded damages against the News of the World newspaper when it published pictures and a video on its website of him visiting a prostitute.  It was held that a person's sex life is private to them, and not in the public interest, which was like the decision with Theakstone.  The Max Mosley case has been criticised by some sections of the media saying that judges are making their own privacy laws by the back door, despite the fact that in Campbell, Lady Hale said that they couldn't.  The way that the courts managed to get to the position where they could protect privacy was then by using the Human Rights Act and developing an idea called breach of confidence.  The breach of confidence is seen where a person knows that the information that they have got about someone should not be published, or that they would not let that person print it if they knew that was going to happen.  This came from the Coco case. (9) There is so much wrong here, with cases mixed together, the chronology all over the place and the issues from each of them blurring together, so as to create a real sense of confusion. (It is also Baroness Hale.)

In conclusion, there have been many developments in both English and American law which has seen there being a limited amount of protection for privacy.  The case law has meant that the courts have developed this right to privacy in the absence of any statutory intervention like there has been in America. Areas of law like defamation and trespass to land can also help someone to keep their private life private by getting injunctions and keeping people off their property. But it really should be something that Parliament does to overcome the criticism that the courts should not be making such laws, which could have significant impact on the freedom of speech of the press. (10) The conclusion does not address the question, and is not able to draw any of the points made together. In fact, it introduces new material and, in keeping with the rest of the essay, does not explain it properly.

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