Before the Human Rights Act, English law offered no general right to privacy. Protection came indirectly through:

• Breach of confidence (Coco v A.N. Clark (Engineers) Ltd [1969])

• Trespass, nuisance, and defamation

The landmark case Campbell v MGN Ltd [2004] established misuse of private information as a distinct cause of action.

Facts: Model Naomi Campbell was photographed leaving a Narcotics Anonymous meeting; the Daily Mirror published the story.

Held: Although the press could publish that she was a drug addict (to correct prior false claims), publishing the photos and meeting details was an unjustified intrusion.

The courts apply a two-stage test, derived from Campbell and later refined in Murray v Express Newspapers plc [2008] and ZXC v Bloomberg LP [2022]:

1. Reasonable Expectation of Privacy

• Does the claimant have a reasonable expectation that the information would remain private?

• Factors considered:

  • Nature of the information (personal, medical, family, financial).

  • Circumstances in which it was obtained (e.g. secretly, by deception).

  • Claimant’s public profile (public figures have narrower expectations).

  • Location (home vs public place).

  • Age or vulnerability (Murray – child of J.K. Rowling had heightened expectation).

2. Balancing Exercise (Article 8 vs Article 10)

• The court balances the claimant’s right to privacy against the defendant’s right to freedom of expression.

• The outcome depends on proportionality and public interest.

• Re S (A Child) [2004] confirmed there is no automatic priority; both rights are equal in value.

If both elements are satisfied, publication or disclosure amounts to misuse of private information.

Information may be private if it concerns:

• Personal relationships (McKennitt v Ash [2006] – intimate details in memoirs).

• Medical or health matters (Campbell).

• Finances or employment (HRH Prince of Wales v Associated Newspapers [2006] – private journals).

• Home life and family (Murray).

• Photographs in private settings (Peck v UK [2003] – CCTV images published without consent).

• Pending criminal investigations (ZXC v Bloomberg LP [2022] – suspects generally have a reasonable expectation of privacy before charge).

The main justification is public interest. A story may intrude into private life but still be lawful if publication serves a genuine public function, for example, exposing wrongdoing, protecting public safety, or correcting false information.

Other defences include:

• Consent – express or implied permission.

• Lawful authority – required or permitted by law.

• Information already in the public domain – no longer private.

Mere curiosity or entertainment does not amount to public interest.

Courts can award both equitable and statutory remedies:

• Damages or compensation – for distress and loss of dignity (Gulati v MGN [2015]).

• Injunctions – to prevent publication (interim or permanent).

• Orders for delivery up or destruction of private material.

• Declarations of misuse under the Human Rights Act 1998.