A Guide to Privacy Law

June 1, 2025

Misuse of Private Information – Legal Framework and Guide

If your private information has been misused or published without consent, our expert privacy solicitors can help. At Carruthers Law, we advise clients across England and Wales on complex privacy and defamation matters, including misuse of private information, data protection breaches, and unlawful disclosures. This article explains how English privacy law has evolved, your rights under the Human Rights Act 1998, and the remedies available to individuals whose private lives have been unjustly exposed.

Need expert legal advice on a privacy or defamation issue? Contact our specialist solicitors at Carruthers Law today. Call 0203 846 2862 or 0151 541 2040, or submit an enquiry online.

Contents

• Historical Development and ECHR Influence
• The Two-Stage Test for Misuse of Private Information
• Reasonable Expectation of Privacy – The Stage One Inquiry
• The Balancing Exercise – Stage Two Considerations
• Procedure for Privacy Claims and Available Remedies
• Conclusion

Historical Development and ECHR Influence

English law did not traditionally recognise a general right to privacy. Before 2000, individuals seeking to prevent publication of private facts had to rely on the equitable action for breach of confidence. This changed with the enactment of the Human Rights Act 1998, which required courts to give effect to the European Convention on Human Rights (“ECHR”). Article 8 of the ECHR; the right to respect for private and family life and Article 10; the right to freedom of expression, have been the driving forces in developing a modern privacy tort. In Campbell v MGN Ltd [2004] UKHL 22, the House of Lords famously confirmed that English law can protect privacy by extending breach of confidence principles, effectively creating a tort of misuse of private information. This tort is now firmly established: the Court of Appeal in Google Inc v Vidal-Hall [2015] EWCA Civ 311 explicitly affirmed that misuse of private information is a tort under English law (see [2015] EWCA Civ 311 at [51]), noting this was not a new cause of action but simply the correct legal label for existing law. In other words, what began as a doctrine of confidence has evolved, under the influence of Article 8, into a standalone common law privacy right. Courts have emphasised that neither Article 8 nor Article 10 has automatic precedence; both are vital rights, and the development of misuse of private information reflects an attempt to strike an appropriate balance between them.

This tort is distinct from defamation, which concerns injury to reputation rather than the unauthorised publication of private facts.

Article 8 (Privacy): Article 8 of the ECHR provides that “everyone has the right to respect for his private and family life, his home and his correspondence,” subject only to such restrictions as are “necessary in a democratic society” for legitimate aims (national security, public safety, prevention of crime, protection of others’ rights, etc. ). This broadly worded right underpins the tort of misuse of private information. English courts interpret “private life” in Article 8 to include personal information that an individual can reasonably expect will not be exposed to the public. Over time, case law has clarified that the essence of privacy is the reasonable expectation of privacy: if a person reasonably expects particular information or activity to remain private, Article 8 is engaged. Notably, this protection extends beyond the home; private life can be invaded even in public places if the information obtained or disclosed is intimate or sensitive.

Article 10 (Expression): Article 10 of the ECHR guarantees freedom of expression, including the freedom to receive and impart information. It too permits restrictions only where necessary in a democratic society (for example, for the protection of others’ reputations or rights, or preventing disclosure of confidential information). The development of privacy law has had to account for Article 10 because restraining publication of information engages the media’s free expression rights. The Human Rights Act mandates courts to weigh Article 10 considerations whenever a court is asked to restrict speech. As discussed below, the central challenge in privacy cases is reconciling Article 10 with Article 8, a tension the courts resolve by a careful balancing exercise, case by case.

The Two-Stage Test for Misuse of Private Information

Misuse of private information is now treated as a two-stage test for liability. This structured approach was crystallised in Campbell and subsequent cases such as Murray v Express Newspapers [2008] EWCA Civ 446 and recently affirmed by the Supreme Court in Bloomberg LP v ZXC [2022] UKSC 5. The stages are:

Stage One – Reasonable Expectation of Privacy:

The court first asks whether the claimant has a reasonable expectation of privacy in the relevant information. This is an objective test evaluated in light of all the circumstances. If the answer is “no” (i. e. the information is not considered private), the claim fails at the outset because Article 8 is not engaged. If “yes,” then Article 8 is in play and the court moves to stage two. In Campbell, for example, Naomi Campbell had a reasonable expectation of privacy in the details of her drug rehabilitation (such as attending Narcotics Anonymous meetings and her treatment particulars) even though the basic fact of her drug addiction could be disclosed to correct a false public claim. Thus, parts of the story (the intimate medical and therapy details, and covert photographs of her leaving a rehab meeting) were deemed private, satisfying stage one.

Stage Two – Balancing Article 8 and Article 10: If the information is private, the court must then determine whether the interest in privacy is outweighed by countervailing interests in freedom of expression (or vice versa). This involves an intense focus on the comparative importance of the specific rights in context. The court weighs the claimant’s Article 8 right to privacy against the publisher’s Article 10 right to publish, considering the justifications for interfering with each right and applying the proportionality test. No one factor is decisive; the outcome depends on the facts of the particular case. For instance, in Campbell the House of Lords concluded that publishing the fact of her addiction and treatment was justified (to correct Ms Campbell’s public denials of drug use, a matter of public interest), but publishing additional details (the clinic she attended, frequency of meetings, and the secretly taken photos of her outside the clinic) was disproportionate and not justified. Her privacy in those details trumped the newspaper’s expressive rights, tipping the balance in her favor. By contrast, if publication contributes to a genuine public debate or exposes wrongdoing, Article 10 may carry greater weight and tip the balance toward disclosure. Each case requires a careful balancing exercise. Neither privacy nor expression has automatic precedence.

It should be noted that misuse of private information is a distinct cause of action from defamation. It is not about falsity or damage to reputation, but about wrongful revelation of truthful private facts. Accordingly, the truth of the information is generally no defence, even true information can be private. The focus is on whether it was private and, if so, whether there was sufficient justification to publish it. As Lord Mance observed in PJS v News Group Newspapers Ltd [2016] UKSC 26 (at [20]–[21]), “criticism of [private] conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense”. In other words, publishing salacious or purely personal gossip, even if true, usually serves little to no legitimate public interest and will not outweigh a claimant’s privacy rights. On the other hand, publishing information that genuinely engages the public interest (for example, revealing public corruption, serious crime, or risks to public health or safety) may be protected by Article 10 and thus lawful, despite impinging on someone’s privacy. The courts often ask whether the publication contributes to a debate of general interest to society. If not, if it is mere titillation or prurient curiosity, the scales will usually tip toward privacy.

Reasonable Expectation of Privacy – The Stage One Inquiry

The threshold question; “did the claimant have a reasonable expectation of privacy?”, is context-specific and fact-dependent. The courts consider all relevant circumstances, commonly referred to as the “Murray factors” (from Murray v Express):

The attributes of the claimant: Is the person a private individual or a public figure? A child or an adult? Public figures (celebrities, politicians, etc. ) can and do have privacy rights, but aspects of their lives might be less private due to their public role. Children are afforded especially strong expectations of privacy (they have no public persona and publication of their private life is rarely justified).
The nature of the activity: What was the person doing when observed or what type of information was collected? Intimate or sensitive activities (medical treatment, sexual activity, personal correspondence, family time) are inherently private. For example, medical information, therapy and counseling details are “obviously intimate and personal” and thus typically considered private.
The place it was happening: Was the individual in a public or private space? Being in a public location does not automatically strip away privacy. The question is whether privacy should be expected given the context. A person having a medical crisis on a public street, for instance, may still reasonably expect privacy in that situation. In Campbell, although Ms Campbell was photographed on a public street, the context (leaving a Narcotics Anonymous session) imbued the scene with a private nature. By contrast, activities visibly performed in a public, open setting generally carry a lower expectation of privacy (though not always zero).

The nature and purpose of the intrusion: How was the information obtained and why? Information obtained surreptitiously or through an intrusion (paparazzi telephoto shots, covert recording, theft of documents) tends to indicate a higher expectation of privacy, especially if done purely for commercial exploitation or sensationalism. In contrast, information gleaned by ordinary means or for legitimate reasons might reduce the expectation.

Absence of consent and whether it was known or could be inferred: If the person did not consent to their information being shared, and especially if they explicitly refused consent, that supports a finding of privacy. If consent was given (or the person willingly exposed the information themselves), expectation of privacy diminishes.
Effect on the claimant: The likely impact of disclosure on the person matters. Deeply distressing or harmful revelations (e. g. causing humiliation, mental anguish, or reputational harm) are more likely to be deemed private. For instance, disclosing someone’s HIV status or details of sexual abuse would foreseeably be highly intrusive and distressing, bolstering privacy expectations.
Circumstances and purpose for which the information came into the publisher’s hands: If information was communicated in confidence or leaked in breach of a duty, it remains private in nature. The source and motive can be telling. A tip-off from a confidential medical file, or a leaked private letter (as in the Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810) carries a strong badge of privacy, whereas information already circulating freely in the public domain might not.

These factors (drawn from Murray and applied in many cases since) guide the court’s holistic assessment at stage one. No single factor is determinative; the court weighs them in combination. Certain categories of information are inherently private. For example, health and medical information is almost always considered private; similarly, personal correspondence (letters, emails) is generally private in nature, as are photos of family life or children. Indeed, in the recent Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810, Meghan Markle’s private letter to her father was held to attract a reasonable expectation of privacy. The Court of Appeal found the letter’s contents were “personal, private and not matters of legitimate public interest.” Even though Meghan is a public figure, and even if she might have anticipated a leak, the detailed contents of her letter remained private. The court rejected the newspaper’s argument that she had forfeited privacy by sharing some information with her biographers, she still retained a reasonable expectation that the full contents of her letter would not be published to the world. This illustrates that being famous or discussing one’s life in limited contexts does not eliminate all zones of privacy.

Another major development in recent years is the judicial recognition that suspects in criminal investigations generally have a reasonable expectation of privacy about that fact. In Sir Cliff Richard OBE v BBC [2018] EWHC 1837 (Ch), the High Court (Mann J) held “as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation” (at [248]). Sir Cliff Richard had never been charged with any offence, and the BBC’s sensational helicopter-filmed broadcast of a police raid on his home was deemed an unlawful privacy intrusion. The court ruled that the very fact of being under investigation (before charge) is ordinarily private, given the stigma that mere suspicion can create. This principle was affirmed by the Supreme Court in Bloomberg LP v ZXC [2022] UKSC 5, where it was held that “in general, a person who is under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation” (Bloomberg LP v ZXC [2022] UKSC 5 at [146]). The Bloomberg case involved a business executive under investigation by a law enforcement agency; a confidential investigatory document was leaked to Bloomberg News, which published an article naming the executive and detailing the allegations. The Supreme Court unanimously found the individual’s privacy was engaged recognising a “legitimate starting point” that pre-charge suspect status is private and that the media’s Article 10 rights did not override the suspect’s Article 8 rights on those facts. These cases underscore that being a public figure or involved in a newsworthy event (like a police probe) does not strip someone of all privacy. The context (ongoing investigation, presumption of innocence, potential irreparable reputational harm if disclosed) gives rise to a strong expectation of privacy.

In summary, Stage One is a threshold filter: the claimant must show that the nature of the information and the surrounding circumstances give rise to privacy expectations. If this hurdle is cleared, the court then proceeds to the crucial Stage Two.

The Balancing Exercise – Stage Two Considerations

Once private information is identified, the court performs a balancing exercise between Article 8 and Article 10. The House of Lords in Campbell and subsequent authorities (e. g. Re S (A Child) [2004] UKHL 47 and PJS v News Group Newspapers Ltd [2016] UKSC 26) have laid down core principles for this balancing: neither right has precedence in law; the outcome depends on the comparative importance of the specific rights being claimed, and whether the interference with one right is justified by the need to protect the other. The court must consider the facts “in context” and weigh factors such as: the degree of intrusion into private life, the extent of public interest (if any) in the information, whether the information contributes to a debate of general public importance, and whether there were less intrusive means to achieve any public interest objective. It is a proportionality assessment at its core.

Crucially, Section 12 of the Human Rights Act 1998 provides procedural safeguards favouring freedom of expression at the stage of interim relief (discussed below), but it also guides the substantive balancing. Section 12(4) requires courts to “have particular regard to the importance of the Convention right to freedom of expression” in journalistic contexts and to consider the extent to which the material is already in the public domain and whether publication is in the public interest. In practice, this means judges give careful thought to whether restraining publication would unjustifiably stifle the media. However, the Supreme Court in PJS clarified that Section 12 does not elevate Article 10 above Article 8 in the final analysis. It does not introduce a presumption in favour of publication, but rather ensures free expression concerns are explicitly factored in. Ultimately, the court applies an “ultimate balancing test”: it asks, in all the circumstances, whether the need to protect the claimant’s privacy outweighs the defendant’s right to publish the information (or vice versa).

Some guiding points emerge from the case law about this balancing exercise:

Public Interest vs. Interesting to the Public: A key question is whether publication serves a genuine public interest or merely caters to prurient interest. Courts draw a line between material that informs the public in a democratic society (e. g. revealing serious wrongdoing, public safety issues, political or corporate misconduct) and material that is simply gossip or entertainment at the expense of someone’s privacy. For example, exposing governmental corruption will carry heavy Article 10 weight, whereas exposing a private consensual affair of a public figure (with no hypocrisy or wider implication) is considered of low public interest value. In PJS, the Supreme Court found that publishing details of a celebrity’s extramarital sexual activities served no public interest of any substance, it was “at the bottom end of the spectrum” of expressive value, and thus the balance lay in favor of privacy. Even though the celebrity (PJS) was famous, and some information had leaked online and abroad, the Court held that his Article 8 rights (and importantly, the rights of his young children to grow up shielded from lurid revelations about their father) prevailed over the tabloid’s Article 10 claim. The injunction against the press was maintained to prevent further intrusion. Lord Mance emphasised that when expression consists of “tawdry” gossip about private sexual conduct, especially with no legitimate aim like correcting falsehoods or protecting others, it will not outweigh privacy.

Extent of Disclosure and Public Domain: The courts will consider how widely known the information already is. If the information is already truly public (e. g. broadly disseminated by the claimant themselves or common public knowledge), an injunction or privacy claim may fail because there is no remaining privacy to protect. However, limited disclosure to a restricted audience does not automatically destroy all privacy rights. In PJS, although the story had been published in foreign media and on some internet sites, the Supreme Court noted that there was still a large segment of the English public who were not aware of the details; importantly, an English court’s refusal to allow domestic media to splash the story further could meaningfully limit the intrusion into the claimant’s private life. Thus, the fact some information is out does not give the press free rein to amplify it, the court will assess the incremental intrusion that additional publication would cause. The timing and medium of disclosure matter too: publication on a mass scale in a national newspaper, or on a prominent website, may be far more intrusive than scattered references on obscure internet forums. Under Section 12(4), judges must take into account “the extent to which the material has become available to the public”. If the cat is fully out of the bag, privacy injunctive relief may be futile; if it is only partially out, the court may still act to prevent further unwarranted spread.

Behaviour of Claimant: If a claimant has themselves put aspects of their life into the public sphere or courted publicity on certain matters, a court may find their expectation of privacy in related areas is reduced. For example, Naomi Campbell had engaged with the media to present an image of herself (denying drug use); thus, the press were justified in publishing the fact of her drug addiction treatment to correct the misleading public record. But the courts draw a distinction: openness about some matters does not mean a person has opened all doors. A person may speak about their professional life but still expect privacy in health or family matters. Consistency and context are considered, inconsistency or hypocrisy can give the media stronger ground to publish in the public interest (as seen in Campbell, regarding her false statements about drug use). If no such public statements exist, or the disclosure is gratuitously unrelated to any public stance of the claimant, the media’s justification weakens.

Rights of Others (Children, etc. ): Privacy claims often involve considering the rights of third parties such as children or family members. Courts are mindful that publication of private information about one person can impact the rights of innocent others. In PJS, the presence of the claimant’s young children was a major factor. The Court was concerned that the continued circulation of the story would harm the children’s upbringing and welfare. Article 8 expressly encompasses family life, so the interests of spouses, children or other close relations may reinforce the case for privacy. A publisher’s Article 10 rights do not include a right to expose children to harm from publicity. Thus, when balancing, the court may give significant weight to protecting minors or vulnerable individuals.

Ultimately, the balancing stage is where the court decides if the interference with privacy is justified. If the claimant’s privacy interest outweighs the defendant’s free speech interest, the publication will be found unlawful (or enjoined). If the scales tip the other way, the privacy claim will fail even though private matters are disclosed. For instance, in Bloomberg LP v ZXC, after finding that ZXC had a reasonable expectation of privacy in the fact he was under investigation, the Court proceeded to balance this against Bloomberg’s Article 10 right. They concluded ZXC’s privacy prevailed: the public interest arguments advanced by the media (claiming a right to report on business investigations) did not outweigh the damage and distress that premature identification of ZXC would cause. Conversely, if someone attempted to use privacy rights to suppress a truly significant revelation (say, a government minister’s covert conflicts of interest affecting public duties), the balancing exercise might favour disclosure. The law thus seeks to protect genuine privacy while permitting publication of information when necessary for public scrutiny in a democratic society.

Procedure for Privacy Claims and Available Remedies

How Privacy Claims Are Brought

Misuse of private information claims are typically brought in the High Court (King’s Bench Division), often in the specialised Media and Communications List which handles defamation, privacy, and related matters. There is a dedicated Pre-Action Protocol for Media and Communications Claims (introduced in 2019) that applies to claims for misuse of private information, breach of confidence, defamation, data protection, and other speech-related torts. Under this protocol, a claimant should send a detailed letter of claim to the prospective defendant, setting out the factual background, the private information at issue, and the remedies sought, before issuing proceedings. The aim is to explore settlement or narrowing of issues early, given the often urgent nature of privacy disputes. In practice, however, because privacy breaches can cause immediate and irreversible harm, claimants frequently move very quickly (sometimes dispensing with lengthy pre-action correspondence) to seek urgent relief from the court.

Interim Injunctions (Pre-Trial)

A distinctive feature of privacy law is the use of urgent interim injunctions to prevent an impending publication. Privacy is one area where the maxim “justice delayed is justice denied” is acutely true Once private information is published, the harm is done and cannot be fully undone. Therefore, claimants will often apply for an injunction before trial (indeed, often before the article or broadcast goes live) to restrain the media from publishing private material. These applications can be made without notice to the media in exceptional cases, for example, if giving advance notice would risk the defendant disseminating the information immediately (the so-called “last chance to publish” problem). In general, however, the claimant is expected to notify the defendant unless there are compelling reasons not to. Section 12 of the HRA 1998 specifically requires that, before granting relief that might affect freedom of expression, the court must be satisfied the applicant has taken all practicable steps to notify the respondent or that there are solid reasons why the respondent should not be notified. This ensures that ex parte “gagging orders” are truly a last resort.

Even when the court is willing to consider an interim privacy injunction, Section 12(3) of the HRA sets a threshold test: the court may not grant an injunction to restrain publication unless the applicant is likely to establish at trial that publication should not be allowed. The word “likely” has been interpreted as meaning the claimant must have a real prospect of success that is more than fanciful, in practice, the court looks for a relatively strong case that would probably win at trial. This is a higher bar than the American Cyanamid test for ordinary injunctions, reflecting Parliament’s intent to guard against easy censorship of the press. In privacy cases, if the claimant clearly satisfies the two-stage test (private information, and weak public interest justification), the court will often find the likelihood of success test met. For example, in PJS, the Supreme Court held that PJS was likely to win a permanent injunction at trial given the negligible public interest in the story, thus an interim injunction was rightly maintained.

When considering a privacy injunction, the court also weighs the factors in Section 12(4) HRA: the importance of freedom of expression and, in particular for journalistic material, whether the material is already in the public domain or how far publication is in the public interest. The court may have to predict the harm of publication versus the harm of restraint. In urgent applications, evidence is often given in witness statements explaining the private nature of the information and the feared consequences of disclosure (distress, safety concerns, etc. ), while the media may argue public interest or that the information is innocuous or already widespread. Hearings are frequently held in private (to avoid defeating the purpose by airing the private information in open court) and may be anonymised, claimants are often referred to by initials (as in PJS or ZXC) to preserve confidentiality during the process.

Without Notice Orders

If a without-notice (ex parte) injunction is granted, it is almost always interim pending a prompt return date for an inter partes hearing where the defendant can contest the order. These initial injunctions, especially if they restrain the media from even mentioning the proceedings, have been dubbed “super-injunctions” in the press. In practice, true super-injunctions (where even reporting the existence of the case is barred) are rare and usually only granted where publicising the dispute itself would defeat the privacy right (for instance, where identifying the parties or the subject matter would expose the private information). The courts have become more cautious with such orders after criticism around 2010–2011. Now, if an injunction is granted, it is often an anonymised but reportable injunction (the press might report that “an injunction has been granted to a party, name withheld, regarding private information” without details). The procedural rules and the jurisprudence (e. g. JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 on anonymisation) aim to strike a balance between necessary secrecy and open justice.

Duration of Interim Injunctions

An interim privacy injunction typically remains in place until trial or further court order. In many cases, the dispute never reaches a full trial. If the court, at an early stage, indicates that the claimant is likely to win (by granting an injunction or even summary judgment, as in the Duchess of Sussex case), the media defendant may capitulate or settle. Notably, in Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch), the High Court granted summary judgment to Meghan Markle on her misuse of private information claim, obviating any need for trial. The Court of Appeal in late 2021 upheld that decision, confirming there was only one plausible conclusion on the facts: the published letter was a private, personal communication and its extensive publication was unlawful. This shows that courts are willing to resolve privacy cases without trial when the outcome is sufficiently clear, another way to spare claimants the ordeal of prolonged litigation and prevent further intrusion into their lives.

Final Relief – Injunctions and Takedowns

If a claimant succeeds at trial (or via summary judgment or settlement), the court can grant a permanent injunction to restrain the defendant from publishing or disclosing the private information in the future. By the time of a final judgment, of course, the information may already have been circulated (if no interim injunction was in place). Even so, final injunctions can prevent further dissemination and require removal of the information from websites or databases under the defendant’s control. In modern practice, a final order in a privacy case may include requirements to take down online articles, deliver up or destroy any confidential documents or images, and not to publish the information going forward. For example, after the Duchess of Sussex won her case, the court’s order required the newspaper to surrender or destroy copies of the letter and not to publish it again. Similarly, in a case involving private photos or recordings, the defendant could be ordered to hand over or delete all copies. These measures aim to give practical effect to the claimant’s Article 8 rights by containing the spread of the information.

Damages

In addition to injunctive relief, successful claimants can recover damages for misuse of private information. Damages in privacy cases are generally compensatory, aimed at remedying the hurt, distress, and loss of dignity or autonomy caused by the unwanted exposure. Unlike defamation, where damage to reputation is the core concern, privacy damages focus on personal distress, anguish, and loss of control over private material. The quantum is case-specific and can vary widely. English courts have awarded modest five-figure sums in some privacy cases, but in serious cases awards have reached six figures. A landmark for damages was the phone hacking litigation (Gulati & Ors v MGN Ltd [2015] EWHC 1482 (Ch)), where victims of sustained press intrusion (voicemail interception) received very substantial awards (tens of thousands of pounds each) to compensate for years of invasions of privacy. In Cliff Richard v BBC, Sir Cliff obtained £190, 000 in general damages for the privacy infringement, plus £20, 000 aggravated damages, totaling £210, 000. The aggravated component reflected the BBC’s especially egregious conduct (such as the celebratory submission of its scoop for an award, which the court found worsened Sir Cliff’s distress). The judgment painstakingly catalogued the damage to Sir Cliff’s life, the severe reputational harm of being globally associated with a criminal suspicion, the strain on his health, the trauma and anxiety, as well as financial losses from cancelled contracts. Although he was a public figure, the court recognized that the wrongful disclosure of a baseless allegation had a devastating personal impact, justifying an unusually high award.

It is notable that claimants can recover damages for emotional harm (hurt feelings, embarrassment, mental anguish) even absent any economic loss. This was confirmed in Google Inc v Vidal-Hall [2015] EWCA Civ 311, where the Court of Appeal held that damages for misuse of private information (and for data protection breaches) can be awarded for pure distress. Thus, a claimant does not need to prove financial loss – the law acknowledges that loss of privacy is itself a harm. In appropriate cases, damages may also compensate for any proven pecuniary losses caused by the misuse (for example, if the violation led to loss of employment or specific costs incurred to mitigate the harm). However, in most privacy cases the primary damage is subjective and non-pecuniary.

In rare instances, courts have discussed the possibility of exemplary (punitive) damages in privacy cases, especially where the defendant’s conduct is outrageously culpable (for example, a flagrant, profit-driven invasion of privacy). English law traditionally disfavours exemplary damages except in limited categories, and to date exemplary damages have not been awarded in a privacy claim. Nonetheless, the threat of a large damages award can serve as a deterrent to media outlets overstepping bounds, especially since the level of general damages in privacy (and data protection) claims has been rising in recent years.

Other Remedies

A successful privacy claimant may also seek a published apology or correction, though in privacy cases this is less common as a formal remedy than in defamation. Often, claimants are satisfied with confidential settlements or statements in open court acknowledging the wrongdoing. In the Meghan Markle case, for example, the Mail on Sunday was ordered to publish a front-page statement acknowledging her legal victory, effectively a form of vindication. Courts can also order accounts of profits (disgorgement of any profit made from the wrongful publication) in appropriate equity-based claims. In Meghan’s case, because copyright was also in issue, the court indicated damages might take the form of an account of the newspaper’s profits. An account of profits for misuse of private information alone is not typical, but if the facts showed a defendant was unjustly enriched by the privacy breach, a claimant might argue for it. Finally, a claimant who has been wronged can ask the court to declare that the defendant acted unlawfully (a declaratory judgment), which can carry moral weight even if damages are small.

Costs

It is worth noting that privacy litigation can be protracted and expensive. In the English system, the losing party generally pays the winner’s reasonable legal costs. Media defendants who fight and lose a privacy case can face hefty cost bills. For instance, the BBC reportedly incurred around £2 million in Sir Cliff Richard’s case in addition to damages. This “loser pays” rule, coupled with the availability of no win, no fee arrangements for claimants and occasional use of insurance or third-party funding, means media organisations must carefully assess their exposure when defending a privacy claim. On the claimant’s side, the cost risk is a factor too; privacy claimants often have to have deep resolve (or resources) to take on major publishers, though the growth of conditional fee agreements and litigation funding has somewhat levelled the field in recent years.

Conclusion

In little over two decades since the Human Rights Act, courts have crafted a nuanced doctrine: from Campbell’s foundational test of reasonable expectation and proportionality, through landmark cases like PJS (fortifying interim relief despite internet leaks), Cliff Richard (recognising suspects’ privacy and awarding substantial damages), and ZXC v Bloomberg (Supreme Court confirmation that pre-charge investigations are private), up to the Duchess of Sussex case (demonstrating that even royalty is entitled to private correspondence free from media exposure).

Further Reading

• Serious Harm in Defamation
• Malicious Falsehood – Understanding this related tort
• Claims in Libel and Privacy 

If you need legal advice regarding misuse of private information or reputational harm, contact Carruthers Law today for a confidential consultation. Call 0203 846 2862 or 0151 541 2040, or use our online contact form.