What is Misuse of Private Information ?

Newspaper reports in recent days have confirmed the intention of septuagenarian pop star Cliff Richard to seek damages of up to a million pounds from both South Yorkshire Police and the BBC in connection with the televising of a police raid on his property in Berkshire in August 2014.

BBC camera crews, including one filming from a helicopter were present as police detectives searched Sir Cliff’s apartment in connection with allegations of historical sexual abuse.

Ultimately, Sir Cliff was neither arrested nor charged and last month the Crown Prosecution Service announced that it was dropping the case.

Sir Cliff has complained that these events turned his life “upside down” and damaged his reputation worldwide.   It is certainly true that some people on learning of this story, and perhaps even after learning that the case has been closed, will suspect that there is ‘no smoke without fire’.

In a statement posted on his Facebook page on Sunday Sir Cliff said as follows :-

I firmly believe that privacy should be respected and that police guidelines are there to be followed.  That means that save in exceptional circumstances people should never be named unless and until they are charged.   As everybody has accepted there were no such exceptional circumstances in my case. 

Even before the investigation had been formerly closed, as early as February last year a report by the former Chief Constable of British Transport Police Andy Trotter was highly critical of South Yorkshire Police’s conduct, in particular the ‘tipping off’ of a BBC reporter which lead to cameras being present as the raid unfolded.

Mr Trotter concluded:-

The search at Sir Cliff Richard’s apartment, and the nature of the allegation, generated considerable publicity across the world, certainly interfered with his privacy and may well have caused unnecessary stress. 

People have seen a search on Sir Cliff Richard’s apartment unfold on television with details of a serious allegation put into the public domain prior to him being interviewed by the police. 

The report concluded that the ‘highly sensitive and confidential’ information about the search should never have been shared in advance with journalists.

It is on this basis that Cliff Richard and his legal team may well be confident about recovering damages from South Yorkshire Police and/or the BBC, damages likely to be substantial if it can be established that Sir Cliff’s lucrative business interests were damaged by the ‘revelations’.

But what is the legal basis of Cliff Richard’s claim?  He himself was not formally arrested or charged and therefore he has no right to sue the police under the torts of false imprisonment or malicious prosecution. Equally, it seems unlikely he could claim for trespass to land, as it is likely the warrant authorising the search was obtained properly.

Privacy Law

It seems that the claim is most likely to be brought on the grounds of unlawful misuse of private information.  Sir Cliff may, or may not, be aware that this is a relatively new area of law and one which did not exist when he was at the hay day of his success in the 1960s.  Rather it is a new branch of tort law which has developed as a result of the rights and privileges afforded to us under the Human Rights Act 1998.

Historically an action for damages could be brought for breach of confidence which because it was not a tort ( ie a generic type of civil misdemeanour under the common law which applies to all individuals in a society), greatly restricted the number of people who could be sued under his law.  In essence, an action for breach of confidence required there to have been a pre existing contractual duty to keep confidence between the parties, which would not have been the case between Sir Cliff Richard and South Yorkshire Police.  In the majority of such cases therefore, there had to have been a pre existing agreement between the parties to keep the information which was the subject of the dispute confidential.

However, owing to the newly developed tort law of misuse of private information it is no longer necessary to show a specific relationship (in contract or equity) between the parties as the basis of the action is simply a reasonable expectation of protection of privacy which can be owed by anybody to anybody else.

The key case on recent developments in the law of privacy was Google Inc v Vidal-Hall and others [2015] EWCA Civ 311. 

The Judgment in that case was written by Lord Dyson MR and Sharp LJ who noted how in the past the English Common Law lacked a ‘tort of invasion of privacy’ presenting the Courts with the problem of how to incorporate the fundamental right to privacy granted under Article 8 of the European Convention for the Protection of Human Rights  (ECHR), which was incorporated into English Law by the Human Rights Act 1988.

Prior to this time, the tort for misuse of private information (effectively, violation of Article 8 ECHR Rights) did not exist and claims in that area of law were restricted within the bounds of actions for breach of confidence.

An important precursor to the Judgment in the case of Google Inc v Vidal-Hall and others was that in Campbell v MGN Ltd [2004] UK HL 22 in relation to a privacy action brought by the well known model Naomi Campbell.  She was seeking damages from a newspaper which had published articles disclosing her drug problems.

One of the Judges in the Campbell case, Lord Nicholls noted how the cause of action for breach of privacy had now “Firmly shaken off the limiting constraint of the need for an initial confidential relationship”.

In essence therefore, where once there had been one cause of action (for breach of confidence) there were now two causes of action recognised in English Law (and here is an excellent example of the judiciary becoming law makers) – breach of confidence relating to classic examples such as betrayal of a ‘trade secret’ and misuse of private information relating to the breach of a person’s right to privacy and private family life as enshrined by Article 8.

There was now a new focus in English Law on what in the Judgment of the case of Campbell at paragraph 51 Lord Hoffmann described as “The right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.

Some lawyers were not happy about this development of the Right to Privacy.  For example in the case of McKennitt and others v Ash and another [2006] EWCA Civ 1714 Buxton LJ criticised how Article 8 Rights had been ‘shoe horned’ into the existing law of Breach of Confidence and spoke of a “feeling of discomfort” about actions for Breach of Confidence now being employed where there was no pre- existing relationship of confidence between the parties.

Further recognition of the new law was given by Sir Anthony Clarke MR in the case of Murray (by his litigation friends Murray and another) v Big Pictures (UK) Ltd [2008] EWCA Civ 446 in these terms:-

Although the origin of the cause of action relied upon his breach of confidence, since information about an individual’s private life would not, in ordinary usage, be called ‘confidential’, the more natural description of the position today is that such information is private and the essence of the tort is better encapsulated now as misuse of private information.  

Thus we come to the Judgment in Google Inc v Vidal-Hall and others in which at paragraph 43 the Court, to all intents and purposes, recognises misuse of private information as a new and distinct tort, not dependent on pre- existing contractual or equitable relationships between the parties to the action.

Despite this, at paragraph 51 of the Judgment the following was written by Lord Dyson and his colleagues:-

“Misuse of private information should now be recognised as a tort… this does not create a new cause of action.  In our view, it simply gives the correct label to one that already exists.”

The reason for these comments is that the English Common Law only recognises age old rights which have always existed, not new ‘creations’.  The Court therefore found itself with having to come up with a rather ‘tort-ured’ metaphor to the effect that misuse of private information was simply a new label for a right which had always existed, when in fact it was quite clear that it had not.  As with so many other things, the recognition of new developments in the law has often to be balanced with steps to placate the forms and precedents of the old, especially in a state such as ours in which there is neither a written constitution nor a civil legal code.

Human Rights and Access to Justice

There are a few other interesting points arising out of the action now being brought by Cliff Richard, which I would like to make observations upon.

The first is that what the ECHR gives with one hand, it may take away with the other, for it does not only contain a right to privacy (Article 8) but also a right to freedom of expression (Article 10).  Sir Anthony Clarke said the following in the case of Murray (by his litigation friends Murray and another) v Big Pictures (UK) Ltd concerning this particular issue:-

The principals stated by Lord Nicholls [in Campbell]can we think be summarised in this way (i) the right to freedom of expression enshrined in Article 10 of the convention and the right to respect for a person’s privacy enshrined in Article 8 are vitally important rights.  Both lie at the heart of liberty in a modern state and neither has precedence over the other. 

Clearly, therefore, there is a balancing act to be struck between the rights of an individual to privacy and the rights of dissemination of information in the public interest.

However, Sir Cliff and his legal advisors may well be comforted by the comment of Baroness Hale in Jameel_(Mohammed) and another v Wall Street Journal [2007] 1 AC 359:-

The most vapid tittle tattle about the activities of footballer’s wives and girlfriends interests large sections of the public but no one could claim any real public interest in our being told all about it. 

The second issue I would raise relates to the fact that these rights have been clearly recognised as flowing from the Human Rights Act 1988, which our current Conservative Government appears to have very much in ‘its sights’.  Will our new Prime Minister Theresa May follow through on the previously mooted Tory policy of abolishing the Human Rights Act and replacing it with a ‘British Bill of Rights’and if so what effect will this have upon claims for breach of privacy?  It seems this area of law is very much in ferment and further developments are likely in the near future.

Finally I reflect upon a comment made by a source close to Sir Cliff, and reported by the Daily Mail on 11 July 2016.  This source commenting on Sir Cliff’s legal action noted “He is in the fortunate position of being able to try to do something about this…”

As an extremely wealthy individual Cliff Richard is indeed in that position.  Most of us do not have anything like his financial resources.

Sir Cliff in a statement on his website commented “I would not want the same to happen to others whether in the public eye or not.”

However most members of the public would be extremely daunted by the prospect of a legal battle against both a police force and the BBC and many would certainly be prevented from bringing this action by the legal costs to which they would likely be exposed if the claim failed.

This is because of a change in the law instituted by the Government in 2013 when the right for recoverability of the costs of legal expense insurance policies were stripped from Claimants, apart from those pursuing personal injury claims.

A breach for misuse of private information may include an element of personal injury, e.g if stress or psychological damage has been caused, but will not necessarily do so, and in that case most people without extensive financial resources would simply be unable to fund the cost of the case and would face bankruptcy in the event that they failed and had to pay their opponent’s legal costs, likely to amount to tens of thousands of pounds.

The likely fee for simply commencing Sir Cliff’s legal action will be £10,000 (That is the Court claim issue fee alone ! Lawyer’s fees and further Court charges are on top of that).  At the same time that the Government has effectively removed the right of people to insure themselves against the risk of losing a legal action, the Government has also massively increased the cost of commencing that action, throwing up significant obstructions to accessing civil justice in this Country.  £10,000 may be small change for Sir Cliff Richard, sadly it is not for most of us.

As the law develops, in my view quite rightly, to give people a right to protection of their privacy and family life which simply did not exist in decades gone by, we must at the same time be watchful and strive to ensure that other actions by the Legislature do not prevent us from accessing those rights.  After all, what point is there in having rights, if you cannot enforce them.  The law must not only be theoretically correct as to our individual rights, but its remedies must also practically accessible for all of us to use.