Misuse of private information

This is a newly developing tort that has emerged out of earlier case law centred upon the equitable remedy of “breach of confidence”. Associated with Lord Nicholls’ opinion in Campbell v MGN Ltd ([2004] UKHL 22) , it is shaped by the interplay of Articles 8 and 10 ECHR and provides, for the first time, a recognised (if partial) tort of privacy in UK law. Its emergence has proven to be highly controversial as celebrities, in particular, have used it to obtain injunctions to prevent newspapers and other media outlets publishing true stories about their private lives.  However, to the extent that this is thought to threaten press freedom, the tort, as with the earlier action for breach of confidence, provides for a “public interest defence”. The granting of remedies to individuals is therefore not inevitable and it is well established that it may be in the public interest to reveal details about an individual’s private life.

One of the leading cases on the tort – in which the public interest defence failed – is Mosley v News Group Newspapers ([2008] EWHC 1777). The claimant, a well-known figure in the world of Formula 1, sued over stories that alleged that he had participated in an orgy that had a underlying theme of Nazi violence. The defendant argued that this theme was enough to give the story the requisite public interest but, having found that there was no such theme, Eady J decided otherwise and awarded Mr Mosley £60,000 in damages. As the judge put it, “Although no doubt interesting to the public, was this genuinely a matter of public interest? I doubt it”. 

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