The Campbell Legacy

Reflections on the Tort of Misuse of Private Information

Thomas D.C. Bennett, Daithí Mac Síthigh

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351674508
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In 2004, a judgment from the highest court in the UK gave birth to a new era of privacy law. That case, brought by the supermodel Naomi Campbell against Mirror Group Newspapers, is today rightly regarded as a turning point for the protection of individuals' privacy. The case is seen as the turning point in the development of English privacy law, and has also had major implications for the law elsewhere, including in Australia, New Zealand, Ireland, and Canada. The manner in which the common law's privacy protections have developed since, and the direction in which they might develop still further, are the subject of this book. This collection, written by leading scholars in the privacy field from the UK and beyond, considers the legacy of Campbell's case. The contributors address the Campbell legacy from a range of legal perspectives and discuss broader themes of power, metaphor, consistency, and technological change. This book was originally published as a special issue of the Journal of Media Law.

Liability for listening: why phone hacking is an actionable breach of privacy

N.A. Moreham

This article considers what the award of substantial damages for phone hacking in Gulati v MGN Ltd says about the nature of the English privacy action and where it might be heading. By accepting that the defendants were liable simply for listening to the claimants’ messages, the judge in that case moved the privacy tort beyond its traditional focus on the disclosure of private information. The article considers possible juridical bases for that extension arguing that, while breach of confidence principles can justify the move, the case also reflects a growing judicial willingness to protect physical privacy interests i.e. freedom from being watched, listened to, or physically encroached upon against one’s wishes.

Introduction

The fallout from the phone hacking scandal which has engulfed two of the United Kingdom’s major newspaper companies is well known to anyone with an interest in media law. Condemnation for the hacking – specifically, unauthorised listening in on people’s mobile telephone messages – has been universal. Journalists have been convicted and imprisoned, an inquiry into the culture, practice and ethics of the press has been completed, and compensation claims launched. But in spite of this attention, until the recent case of Gulati v MGN Ltd,¹ the matter has been largely kept out of the civil courts. Both News Group International and MGN Ltd swiftly admitted liability and dozens of claims have been settled out of court. As a result, many of the legal issues arising from the hacking – including the juridical basis for liability for listening to private conversations – have not been tested.²

The recent damages decision in Gulati therefore sheds important light on the legal implications of the phone hacking saga. This article will explore one aspect of that decision – the significance of Mann J’s acceptance that phone hacking itself is an actionable wrong. It begins by explaining how Mann J’s judgment in Gulati moves the privacy tort beyond its traditional focus on the disclosure of private information. It then explains how breach of confidence – particularly the Court of Appeal’s decision in Tchenguiz v Imerman³ – provides a possible juridical bases for that extension. The article goes on to argue, though, that Mann J’s judgment does more than just extend breach of confidence principles into the privacy context. It also reflects a growing recognition that there is more to privacy than the dissemination, or indeed the acquisition, of private information; that privacy can also be breached by watching, listening to or physically encroaching on a person against his or her wishes. By recognising these physical privacy interests, the article argues, Gulati is ushering in both a conceptual sea-change in English law and, potentially, a new facet of the privacy tort.

Liability for listening: Gulati v MGN Ltd

In Gulati, eight claimants – all of them celebrity actors, sports people or those closely associated with such people – brought a claim to ascertain the damages payable for privacy breaches admitted by the defendant, proprietor of The Mirror, The Sunday Mirror and The People.⁴ All of the claimants had had their mobile telephone messages repeatedly intercepted by journalists at the defendant’s titles over a period of years.⁵ Those on the ‘back-pocket list’ of Sunday Mirror journalist, Dan Evans, had had their messages accessed at least twice a day for four years. In addition, all were the subject of private investigators’ inquiries. The nature of this activity has never been fully revealed but was likely to include the use of ‘blagging’ to obtain telephone numbers, call histories, credit card details, and some medical information.⁶ With the exception of BBC executive, Alan Yentob, in all cases the phone hacking yielded information which formed the basis of articles about the claimants’ private lives. The claims in Gulati were therefore said to fall into three main categories: wrongfully listening to private or confidential information left for or by the claimant; wrongfully obtaining private information via private investigators; and the publication of stories based on that information.⁷ The defendant admitted that all three categories of activity took place and that damages were payable as a result.⁸

Mann J clearly thought that these concessions were rightly made, including acceptance of liability for listening to the claimants’ private messages. He said when setting out his approach to the compensation exercise:

I accept that there are three areas of wrongful behaviour which need to be looked at separately. First there is the general hacking activity. Each of the individuals had their voicemails (and some of those whom they rang) hacked frequently (in their own cases daily), with most hacks not resulting directly in an article. Their private information was thus acquired and their right to privacy infringed, irrespective of whether an article was published. That fact makes it appropriate to take the activity separately and assess its effect (in terms of compensation) separately from damage arising from publication. It is something in respect of which the claimants are entitled to be compensated and if it is not treated separately from the effect of the articles its real impact may be lost, or perhaps even exaggerated. The only sensible approach is to take it separately from the effect of the articles. It amounts to a separate category of wrong which has to be separately reflected in order to ensure that the objective of the damages award achieves its aim.⁹

This was reflected in the damages awards made. Where the hacking resulted in an article, compensation for the hacking and any private investigator activity was built into damages for the publication.¹⁰ An additional sum was also awarded for phone hacking which did not result in articles. Thus, in addition to the sums awarded for publication of articles resulting from hacking, actor Shane Roche was awarded £40,000 for ‘the invasions by hacking generally for 6 years, during which all sorts of private matters will have been heard’.¹¹ Mann J makes specific reference to evidence that journalists had listened to a number of emotional voicemails relating to the difficult birth of his child and sister-in-law’s death even though no articles resulted from it.¹² Alan Yentob, who never had an article published about him, was awarded £85,000 for regular phone hacking over a period of roughly seven years.¹³

In the course of making these awards, Mann J took account of the impact of the hacking on the claimants’ dignity, autonomy and emotional equilibrium.¹⁴ He explained that victims felt ‘violated’ and ‘sickened’ by the hacking.¹⁵ One said that the list of calls and private investigators’ invoices made him think ‘that the newspaper considered that he and [his former wife] were just pieces of news to be played with’.¹⁶ Another likened the experience to having someone searching through his personal belongings.¹⁷ The claimants also described the serious toll that the surveillance itself (as distinct from the articles which resulted from it) had on their emotional equilibrium and, in some cases, mental health. One described feeling ‘persecuted’ and ‘hunted’.¹⁸ Another explained how the sense that he was under surveillance exacerbated existing mental health problems.¹⁹ Another’s loss of trust in others was such that at the time of the hearing he still lived in a house surrounded by CCTV cameras.²⁰

Possible juridical bases for the defendant’s liability

Misuse of private information

It is not surprising, in light of this evidence, that Mann J saw fit to compensate the claimants for the effects of the hacking itself. To borrow a phrase from the Ontarian Court of Appeal, the facts cry out for a remedy.²¹ The move is not, however, supported by misuse...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• Foreword
• Introduction: The Campbell Legacy
• 1. Liability for listening: why phone hacking is an actionable breach of privacy
• 2. A landmark at a turning point: Campbell and the use of privacy law to constrain media power
• 3. A just balance or just imbalance? The role of metaphor in misuse of private information
• 4. Protecting private information of public interest: Campbell’s great promise, unfulfilled
• 5. Privacy, third parties and judicial method: Wainwright’s legacy of uncertainty
• 6. The harms of privacy
• Index