16 September 2008

Privacy: It may not be OK! But we now have a Privacy Law of Sorts

First published on NIPC Case Law Update on 28 May 2005

The decision of the Court of Appeal in Douglas and others v Hello! Ltd and others  [2005] EMLR 28, [2005] 3 WLR 881, [2005] HRLR 27, [2005] 4 All ER 128, [2005] EWCA Civ 595, [2006] QB 125, [2005] 2 FCR 487 to overturn damages of over £1 million that Mr. Justice Lindsey had ordered Hello! magazine to pay to  OK!  was announced on the Radio 4 news.  The importance of that judgment, however, was not the size of the award, the scale of the reverse or even the participation of two Hollywood stars. It was the Court’s recognition that art 8 of the European Convention on Human Rights obliges governments not only to refrain from unwarranted intrusion into private lives but also to take positive steps to protect privacy. In view of the reluctance of this government and every predecessor since the Younger Report (Cmnd. 5012, HMSO,1972) to legislate on privacy, it was up to the courts to give effect to that obligation.

The Convention Obligation

The Court reached that conclusion as a result of the European Court of Human Rights’ judgment in favour of Princess Caroline of Monaco in Von Hanover v Germany : 40 EHRR 1, 16 BHRC 545, [2005] 40 EHRR 1, (2005) 40 EHRR 1, [2004] EMLR 21, [2004] ECHR 294. The European Court had stated that there was an obligation on parties to the Convention to protect individuals from unjustified invasion of private life by other individuals and that there was an obligation on the courts of Convention parties to interpret legislation in a way that would achieve that result. In the absence of any relevant privacy legislation in the United Kingdom, the only way that an English court could give effect to that obligation was to develop the action for breach of confidence.  The Court of Appeal made clear that it was less than happy with being required “to shoe-horn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion”, but it carried out its task impeccably.

Performing the Obligation

In applying the Convention obligation, the Court took as its starting point Megarry J’s observation in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 that there are three ingredients to an action for breach of confidence:

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the information in question had to be “of a confidential nature”,

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it had to be communicated by the confider to the confidant in circumstances of confidence, and

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there had to be unauthorized use of the information to the detriment of the confider.

Lord Goff had observed in Attorney-General v Guardian Newspapers Limited (No 2) [1990] 1 AC 109, 281 that an express undertaking of confidence by a confidante could be dispensed with where the confidential nature of the information was obvious. In Campbell v MGN Ltd [2004] UKHRR 648, [2004] 2 AC 457, [2004] EMLR 15, [2004] UKHL 22, 16 BHRC 500, [2004] 2 WLR 1232, [2004] HRLR 24, [2004] 2 All ER 995, Lord Nicholls had opined that the obligation of confidence could be better described as an obligation not to misuse private information. Drawing those strands together, the Court reasoned that it must have been clear to a publisher that Mr and Mrs Douglas’s wedding was private and that photographs taken surreptitiously by a gatecrasher were an unwarranted intrusion. That of itself constituted a claim for breach of confidence.


Commercial Exploitation of Private Information
However, that was not their only claim in confidence. The Court also found for the Douglases on the further ground that the photographs constituted commercially valuable information. In Lord Phillips’s words:

“Where an individual ('the owner') has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner.”

The Court added that it had used the term ‘the owner’ loosely. It explained that it had also concluded that confidential or private information that is protected only by the law of confidence does not fall to be treated as property that can be owned and transferred.

Nature of the Obligation of Confidence
The reason for the Court’s explanation that a right to enforce an obligation of confidence is a personal and not a property right is that an obligation of confidence can be enforced only if the confidante is or should be aware of the confidential nature of the information. Were it a property right, the first and second probanda of Megarry J’s analysis would be otiose. An obligation of confidence of confidence would arise automatically regardless of whether the confidante had notice of the confidentiality of the information or circumstances of its disclosure. Possibly Mr and Mrs Douglas could have assigned their rights of action against Hello! to OK! but they chose not to do so. In the absence of such an assignment, the only right that OK!’s publisher enjoyed was a licence. Since no obligation of confidence was owed to the publisher of OK! it followed that that proprietor’s claim had to fail.

Assignable Rights
For many years lawyers had tended to regard the right to enforce that duty as a species of intellectual property. A fair number of business transactions such as business sale and confidentiality agreements will have been entered on that premise. The Court of Appeal has stated in the clearest possible terms that whatever the nature of the right it is certainly not intellectual property. The notion that it is appears to have been founded on a case that was reported nearly 40 years after it had been decided. In 
O Mustad & Son v Dosen [1964] 1 WLR 109, the purchaser of the assets of a business that had gone into liquidation managed to obtain an injunction to restrain a former employee of the insolvent business from disclosing trade secrets that he had gained in his employment. The Court reasoned that that decision appeared to have been based on a contractual obligation not to disclose the information.

Practical Consequences

It should already be clear that this case has practical consequences far beyond celebrity journalism. On the positive side for confiders, the obligation of confidence is not a contractual obligation and does not require the confidante’s consent in order to take effect. All that is required is that the confidante should have notice of the nature of the information. That does, of course, place on confiders an obligation to keep their information secret. That means keeping the information under lock and key, restricting access, tracking each and every disclosure and requiring the return of confidential documents after the disclosure has taken effect. The protection afforded by the obligation of confidence is of course limited to those with actual or constructive notice of the obligation. Where a formula or drawing has to pass from a confidante to a sub-contractor and perhaps from the sub-contractor to its machine foreman, it can be very difficult to argue that the foreman owed any duty of confidence to the confider. The obvious way that difficulty is to require the confidante to impose an obligation of confidence in favour of the confider and that can only be done by contract.

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