Unpacking the reasonable expectation of privacy

Vital factors to establish liability

The claimants privacy signals, Public expectations

Normative enquiry

the morally-described norms and standards that should guide individuals and group

Associated Newspaper Ltd v Prince of Wales

Court of appeal: factors that form an Amalgam of circumstances are not easy to identify such as the extent to which this is because of the nature of the information, the form in which it is conveyed and the fact that the person disclosing was in a confidential relationship.

X & Y v Persons Unknown

Is it the sort of information which most people would reasonably expect to keep to themselves

anodyne

not likely to cause offence or disagreement and somewhat dull

McKennitt v Ash

2008 CA: The claimant guarded their private life very carefully

Privacy interest created by

Behavioral signals

Factors in Murray

1. Nature of purpose of intrusion 2. The attributes of the claimant 3. circumstance in which and the purposes for which the information came into the hands of the publisher

Seven categories of usually private information can be identified from current case law

1. appearance or working of the physical body 2.

Attorney General v Guardian Newspapers Ltd as per Lord Goff

A duty of confidence aeises when confidential information comes to the knowledge of a person in circumstances that he should be precluded from disclosing the information to others

Article argues that the reasonable expectation test is...

A normative enquiry into what privacy protection a claimant is entitled to.

People who lack capacity and children

By reasoning of Welles and Murray the courts must have in mind the best interest of the child people with mental impairment should also be treated in the same way

Hutcheson (formerly known as KGM) v News Group Newspapers Ltd

CA:

Napier u Pressdram

CA: the freedom to report the truth... Would be unduly eroded if the law of confidentiality were to prevent a person from reporting facts which a REASONABLE person in his position would not PERCEIVE to be CONFIDENTIAL

Lord Hope Australian High Court

Certain kinds of information about a person such as information relating to health, personal relationships, or finances may be easy to identify as private; as may certain kinds of activity, which a reasonable person applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved.

The Second Principle

Claimant's privacy signals

Creation Records v News Group Newspaper Ltd

Defendants were liable for taking unauthorised photographs of a photograph shoot and film set respectively because sinage and tight security made it clear that photography was not permitted.

PG v United Kingdom

ECTHR " there are occasions when people knowingly or intentionally involve themselves in activities which may be recorded or reported in a public manner this will affect their reasonable expectation of privacy

Contextual enquiry

How the reasonable person would respond to the particular disclosure

Campbell

Lady hale: health information is private

Campbell v MGN Ltd.

Lord Nichols of Birkenhead

Gulati v MGN

Mann J held that the publication of material stored on a person's voicemail was actionable irrespective of subject matter the messages

Wellers

Parents had not courted publicity weighed in their favour

Surreptitious observation

Prevents a claimant from choosing whether of not to be recorded

AMP v Persons Unknown

Ramsey J: information stored on a person's mobile phone be would generally be information for which there would be a general degree of privacy

JR38,

Reasonable expectation test is about the claimant's entitlement to privacy.

Well v. Associated Newspaper Ltd

Taking into account where the activity in the photograph happened and the nature of the activity: it was a family activity that belongs to that part of life that is protected by the broader right of personal autonomy recognised in the law of the Strasbourg Court

Tchenguiz v Imerman

The essence of the confidenriality right is the ability to choose whether and if so to whom and in what circumstances to reveal the information which has the protection of confidence.

Campbell as per Baroness Hale

The exercise of balancing Art 8 and Art 10 may begin when the person publishing the information knows or ought to know that there is a reasonable expectation that the information should be kept confidential

Booker v Police as per Thomas J

The home is thy sanctuary → paraphrased

McKennit v Ash

The sanctity of the home

R (on the application of Catt) vCommissioner of Police of the Metropolis

Whether the claimant had a reasonable expectation in the relevant respect