Privacy claims in the UK rise while defamation cases fall away

June 15, 2016 |

In Australia there are two complaints made by those who oppose a statutory right to privacy (and their lawyers), stultifying free expression and the law is adequate as it stands.  Under the first complaint the claim is that the laws of defamation are restrictive enough that a further intrusion would put an intolerable burden on journalists.  The second is that the a claim in equity for breach of confidence coupled with claims in nuisance and trespass and sometimes breach of contract and even misleading and deceptive conduct provides adequate protection.

These arguments are specious and ill informed.  As the Guardian article in Privacy claims reach record level as defamation cases fall away the fact that the UK has developed a misuse of private information claim in equity which is now a tort has not defeated the practice of journalism.  It has given those who wish to take action for a right that has been intruded, use the proper cause of action.  Hence privacy claims are up while defamation claims are down.  Privacy claims enable the plaintiff to obtain injunctive relief, something rarely possible in a defamation claim.

The claim that the existing range of causes of action permits proper privacy protection is fallacious when compared with the UK law.  The UK has moved away from the cumbersome equitable cause of action for privacy breach to a tort.  The Supreme Court in PJS  v News Group Newspapers Ltd confirmed that a claim for breach of privacy is a tort.   It is unlikely that the High Court would recognise a separate tort.  As such it will fall upon the legislature to enact a statutory right of privacy as has been recommended by the Australian Law Reform Commission (twice in the last 8 years) and the New South Wales and Victorian Law Reform Commissions.  And multiple parliamentary committees, most recently the Standing Committee on Law and Justice report titled Remedies for serious invasion of privacy in New South Wales.

The Guardian article provides:

Legal actions over intrusions into privacy have reached a record level, according to a survey conducted by Thomson Reuters. Why? Because celebrities and other high-profile public figures are trying to restrict publicity about their lives.

The survey found that privacy claims have more than doubled over the course of the last five years, up from 28 in 2010 to 58 in 2015. And about one in five of those cases involved celebrities or politicians.

By contrast, the trajectory for defamation actions has been in the opposite direction. Ministry of justice (MoJ) statistics showed that the number of defamation cases taken to the high court in 2015 fell by 40% over the previous year.
So privacy is a replacement growth area for libel. The Thomson Reuters survey noted that privacy injunctions have become popular once again after a lull that followed the highest level in 2011.

In recent cases, media organisations have paid damages for breaches of privacy to actor Sadie Frost, former footballer Paul Gascoigne, the husband of Cheryl Fernandez-Versini and the infant son of singer Adele.
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Jonathan Cooper, a barrister with Doughty Street Chambers who edits the European Human Rights Law Review, said: “The debate over the use of privacy injunctions has reignited after a number of years in which their usage had tailed off.

“The media has expressed concerns that it is too easy for public figures to use this tool to control what was being published about their private lives.”

Aside from celebrity cases, more than a third of privacy claims involve information passed to a company, to government or a public body. More than a third of cases relate to the government or other public bodies.

People seek to assert a right to control what happens to information they have provided under a legal obligation or given voluntarily but for a specific purpose.

Cooper said: “As the ways in which we communicate and capture information become ever more complex, the bounds of privacy law will be developing.”

The drop in defamation claims is very marked indeed. The MoJ figures showed that 135 defamation claims were issued in London during 2015 compared to 227 in 2014.

That 2015 figure is only slightly lower than that for 2013 but it is, nevertheless, the second lowest since 1992, prompting solicitor Mark Stephens to describe the fall as “phenomenal.”

Stephens, a dispute-resolution partner at law firm Howard Kennedy, believe the reason for the transfer from libel to privacy claims is that “people have realised that reputation management is a much more sophisticated dark art than lawyers are capable of dealing with.”

It would appear that defamation claims have become less attractive since the new defamation act came into force on 1 January 2014. Claimants now have to demonstrate that a publication has caused or is likely to cause their reputations serious harm.

Companies trading for profit also face the difficult task of showing that a publication has caused them serious financial loss.

The rule against prior restraint in defamation cases also means that courts are extremely unwilling to issue injunctions to block publication. But it is easier to obtain injunctions about information which is claimed to be private.

Stephens argues that the Max Mosley privacy action against the News of the World’s publisher, for the falsely alleging that he was involved in a Nazi orgy, was something of a turning point. He chose to sue for breach of privacy rather than for libel.

“In reputation management a privacy claim is a far more effective claim than libel,” said Stephens.

But Hugh Tomlinson QC counselled that we should not “attach too much significance to year on year fluctuations” in claims’ figures.

He thought there may even be an “increase in journalistic responsibility” following the Leveson report. He said: “Gone are the days when an editor would publish a serious libel because it ‘sounds right.’”

One Response to “Privacy claims in the UK rise while defamation cases fall away”

  1. Privacy claims in the UK rise while defamation cases fall away | Australian Law Blogs

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