OUP accepted manuscript

Abstract

Traditionally, English common law has not recognized a tort of invasion of privacy.1 Instead, English courts have developed (in a line of cases including Campbell v MGN2 and Douglas v Hello! (No. 3)3) a tort of misuse of private information, which is often described as protecting ‘an aspect of privacy’.4 The impetus for this development has been the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), incorporated into UK law by the Human Rights Act 1998 (HRA). The HRA does not directly create a civil cause of action based on privacy. However, it does oblige the courts to act consistently with the rights protected by the ECHR, and therefore to provide meaningful protection for the right to respect for private and family life (Article 8 ECHR), balanced, as appropriate, with the right to freedom of expression (Article 10 ECHR). This protection was initially ‘absorbed’ into the longstanding equitable action for breach of confidence.5 However, it became increasingly clear that breach of confidence and misuse of private information rest on different legal foundations and protect different interests.6 Ultimately, misuse of private information was recognized as a distinct tort.7 The latest case to confirm both this position and the English courts’ approach to the tort is PJS v News Group Newspapers Ltd.8