Introduction to Privacy for Law Students (Part II)

From the hallmark case of Campbell and the development of breach of privacy as an action, the integration of privacy as a concept in English law is still in its formative years.

In Part II of this privacy introduction, we consider the legislative framework under English law which enshrined privacy and the recent development of the action for misuse of private information, underpinned by privacy as a value.

The right to privacy was codified at European level in the European Convention on Human Rights, which provides a higher‑level interpretive layer of guidance on the application of such rights. These provisions required integration into English law via legislation.

Parliament passed the Human Rights Act 1998 (“HRA”) to achieve such harmonisation. Article 8 HRA addresses the right to a private life:

“Everyone has the right to respect for his private and family life, his home and his correspondence.”

Whilst this introduction was significant, the practical impact can only be seen through judicial interpretation. Below we consider some key common‑law decisions.

The extension of the breach of confidence action

The case of Douglas v Hello! Ltd [2001] 2 WLR 992 concerned an application for an injunction by Michael Douglas and Catherine Zeta‑Jones to prevent Hello! Magazine from publishing photos of their wedding. The case engaged both legislative and common‑law privacy protections.

The court reflected on the balancing approach between Article 8 HRA (privacy) and Article 10 HRA (freedom of expression):

“Although the right to freedom of expression is not in every case the ace of trumps, it is a powerful card to which the courts of this country must always pay appropriate respect.”

The Data Protection Act 1998 (“DPA”), s.32(1)(b) was also applicable, requiring Hello! to show a reasonable belief that publication was in the public interest — a high threshold given the private nature of the event.

Crucially, the court considered whether breach of confidence could be extended to protect privacy itself:

“The law no longer needs to construct an artificial relationship of confidentiality… it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.”

This confirmed that breach of confidence could evolve to cover misuse of private information.

The court also noted that the couple had sold exclusive rights to OK! Magazine, effectively commercialising their privacy. This did not automatically forfeit protection, but meant OK! had stronger grounds for a claim.

The European Court of Human Rights echoed this in Von Hannover v Germany (2004) 40 EHRR 1:

“Public figures must recognise that the special position they occupy… automatically entails increased pressure on their privacy.”

In Wainwright v Home Office [2004] 2 AC 406, the House of Lords confirmed that the breach of confidence action could be extended, but stopped short of recognising a standalone tort of privacy:

“A plea for the extension and possibly renaming of the old action for breach of confidence.”

The milestone case of Campbell and the misuse of private information

The most significant development came in Campbell v MGN [2004] 2 AC 457. Naomi Campbell sued for breach of confidence and breach of the DPA after the Mirror published details of her attendance at Narcotics Anonymous.

The court re‑characterised breach of confidence as the tort of misuse of private information:

“Wrongful disclosure of private information… lies at the heart of liberty in a modern state.”

The Campbell test requires:

• A reasonable expectation of privacy, and
• A balancing exercise between Article 8 and Article 10 rights.

As the court emphasised:

“The ‘reasonable expectation of privacy’ is a threshold test… Once the information is identified as ‘private’, the court must balance the claimant’s interest… against the countervailing interest of the recipient.”

The court categorised the information disclosed:

• Campbell’s drug addiction
• Her treatment
• Her attendance at Narcotics Anonymous
• Details of her treatment
• Photographs of her leaving a meeting

All would ordinarily attract a reasonable expectation of privacy. However, Campbell’s celebrity status and previous public statements were relevant.

In a 3–2 decision, the court held that categories 3–5 should not have been published. The sensitive nature of addiction treatment and the risk of harm outweighed the public interest. The court noted:

“A picture is worth a thousand words.”

This became a key principle in later privacy cases.

Campbell marked a watershed moment: privacy was recognised as a value underpinning a distinct cause of action, misuse of private information, requiring nuanced, fact‑sensitive judicial analysis.

This is the second article in a three‑part series.