Privacy issues involving pictures of Kate Middleton & litigation that has followed

September 15, 2012 |

A French magazine, Closer, has brought the issue of privacy to prominence with its purchase and publication of  photographs of a topless Kate Middleton by a swimming pool while on a private holiday in Provence. The story is found here.  The Guardian reports that the Royal couple are to sue publication for an invasion of privacy.  As does the ABC and the Age.  The action will be under French civil law which has a far stronger privacy protections to those in the UK and other common law countries.

In the United Kingdom the tort of misuse of private information has developed rapidly to protect private information.  It’s genesis in the modern era is the House of Lords decisions of  Campbell v MGN Ltd [2004] 2 AC 247 and Douglas v Hello! Ltd [2008] 1 AC 1. The basis of those proceedings was a claim for breach of confidence (described as a misuse of private information).  Since Campbell “privacy” actions have developed to involve a more systematic application of the Articles 8 and 10 of the Human Rights Act 1998 as well as consideration of equitable breach of confidence principles.  The current state of the law is best summarised in McKennitt v Ash [2008] QB 73 where  Buxton LJ stated at [8]:

i) There is no English domestic law tort of invasion of privacy. Previous suggestions in a contrary sense were dismissed by Lord Hoffmann, whose speech was agreed with in full by Lord Hope of Craighead and Lord Hutton, in Wainwright v Home Office [2004] 2 AC 406 [28]-[35].

ii) Accordingly, in developing a right to protect private information, including the implementation in the English courts of articles 8 and 10 of the European Convention on Human Rights, the English courts have to proceed through the tort of breach of confidence, into which the jurisprudence of articles 8 and 10 has to be “shoehorned”: Douglas Hello! (No3)[2006] QB 125[53].

iii) That feeling of discomfort arises from the action for breach of confidence being employed where there was no pre-existing relationship of confidence between the parties, but the “confidence” arose from the defendant having acquired by unlawful or surreptitious means information that he should have known he was not free to use: as was the case in Douglas, and also in Campbell MGN [2004] 2 AC 457. Two further points should however be noted:

iv) At least the verbal difficulty referred to in (iii) above has been avoided by the rechristening of the tort as misuse of private information: per Lord Nicholls of Birkenhead in Campbell [2004] 2 AC 457[14]

v ) Of great importance in the present case, as will be explained further below, the complaint here is of what might be called old-fashioned breach of confidence by way of conduct inconsistent with a pre-existing relationship, rather than simply of the purloining of private information.

Equity recognized a right to personal property in the nineteenth century.  In  Abernethy v Hutchinson (1825) 1 H&Tw 28 the Court found that private documents attract protection in equity.  Similarly in Prince Albert v Strange (1849) 1 H & Tw 1involved retaining a sphere of personal control of private information. In Australia the majority of the Victorian Court of Appeal in Giller v Procopets [2008] VSCA 236 adopted the principals in Campbell and Douglas in awarding damages for breach of confidence involving misuse of private information.  Neave JA stated at [418]:

It must be acknowledged that in Campbell v Mirror Group Newspapers Ltd, and again in Douglas v Hello! Ltd, the Court of Appeal and the House of Lords were primarily concerned with the balance to be struck between the competing human rights recognised by the European Convention – the right to privacy under Article 10 and the right to freedom of expression under Article 8. In my view, however, that circumstance in no way weakens the force of these decisions of high authority in endorsing the proposition that, if a breach of confidence is shown to have occurred, damages (or more correctly an order for equitable compensation or damages in lieu of an injunction) can be awarded for distress falling short of psychiatric injury caused by that breach of confidence. I point out that in Campbell v Mirror Group Newspapers Ltd the damages award affirmed by the House of Lords was based solely on the plaintiff’s claim for breach of confidence.

(Emphasis added)

The Court of Appeal in Giller did not find it necessary to determine whether there was a tort of privacy.  The development of the law has not moved at the pace in Australia as it has in the United Kingdom.  Part of that may be because articles 8 and 10 of the Human Rights Act provide a clearer basis for bringing an action, including setting out the specific rights to be weighed in the balance.  Injunctive relief under the Human Rights Act also provides a ready form of relief though injunctive relief for a claim in equity can often be the gist of the action.  In cases involving media intrusions into personal privacy the UK press is quite aggressive in catering for the prurient tastes of some of its readers (having developed that taste over the last 30 years).  That has prompted a significant number of  high profile English High Court and Court of Appeal cases. The Australian press is not immune from egregious conduct but there has not been development of the law since Giller at a superior court level.  In actions between individuals the case law in the UK has also developed at a pace.  Not so in Australia even though the basis exists in equity.

Interestingly Gleeson CJ in ABC v  Lenah Game  Meats Pty Ltd  208 CLR 199 considered situations where a relationship of confidence would exist between the parties in the context of a breach of confidence action and said at [34]:

It is clear that there was no relationship of trust and confidence between the respondent and the people who made, or received, the film. It is also clear that if, by information, is meant the facts as to the slaughtering methods used by the respondent, such information was not confidential in its nature. But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. And the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to “restrain the publication of confidential information improperly or surreptitiously obtained”. The nature of the information must be such that it is capable of being regarded as confidential. A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information. In Hellewell v Chief Constable of Derbyshire, Laws J said:

“If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.”

The example the Chief Justice gives is quite prescient. Given the circumstances surrounding the way Kate Middleton was photographed (by means of high powered lens from a distance into a private place) such a breach in the Australian context may yield a successful action.  The High Court in ABC v Lenah made it clear that there is scope for the development of personal protection of privacy though probably through breach of confidence actions (see Gummow & Haynes reasons). That said court did not go so far as to say there was no tort of privacy.  The vehicle in ABC v Lenah was not the appropriate one for that specific consideration. Given the incremental and generally conservative approach taken by the High Court (with some notable exceptions) it is more likely, in my view, that any development at this level will be through a development of the equitable rights.

While equity is sufficiently flexible to modify the principles of breach of confidence to cover the misuse of private information a more structured approach to the cause of action, whether as a tort or some other head of action, would be preferable.  In the UK the merger of Article 8 and 10 of the Human Rights Act consideration with breach of confidence principles has given rise to an orderly and quite rapid development of the law to meet the challenges of the times (where privacy intrusions are a significant concern and have a greater effect on the victim than in pre information age).  In my view a statutory right of privacy is the preferred model. The current statutory protections in the Privacy Act 1988 are quite weak and dependent on the interest and determination of the Privacy Commissioner (with the exception of injunctive relief under section 98, where an individual can enforce his or her rights under the Privacy Act, or through Part VIII, involving breach of confidence actions).  A stand alone statutory right to privacy, not necessarily involving the Privacy Commissioner (or at least permitting individuals to litigate in their own right) is by far the best approach.  The Australian Law Reform Commission recommended such a right in For Your Information: Australian Privacy Law and Practice (ALRC Report 108).  The New South Wales and Victorian Law Reform Commissions have also recommended a stand alone statutory right to privacy.  The Commonwealth’s discussion paper of 21 September 2011 about the benefits of a stautory right to privacy has led to very little beyond the listing of the various submissions.  It has been a very disappointing end to a promising beginning.


2 Responses to “Privacy issues involving pictures of Kate Middleton & litigation that has followed”

  1. Paul Brennan

    Great article, an easy but considered explanation of a complicated subject. I have attempted to give an explanation, under “Privacy law- Are your breasts safe?” which basically concurs.
    All the best
    Paul Brennan

  2. Peter Clarke

    Many thanks Paul. I enjoyed reading your take on the subject.

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