Introduction to Privacy for Law Students (Part III)

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 III of this privacy introduction, we consider some of the significant cases post‑Campbell to date, bringing into relief key issues and developments in privacy law, many of which are ongoing or merit further consideration by the courts.

In particular, the broad nature of an individual’s reasonable expectation of privacy becomes clear (covering issues of children’s privacy and biometric data retention), and the degree to which this can be qualified against other rights is explored.

The pronounced impact of Campbell

The case of Associated Newspapers Limited v His Royal Highness the Prince of Wales [2006] EWCA Civ 1776 concerned the publication of eight handwritten journals kept by Prince Charles documenting his overseas trips between 1993 and 1999.

Consequently, excerpts of the journals were given by an employee of the Prince to a newspaper and made public despite the knowledge of a contractual duty of confidence, giving rise to an action for breach of confidence and misuse of private information.

The court highlighted the inter‑related nature of confidential and private information:

“Whether a publication, or threatened publication, involves a breach of a relationship of confidence, an interference with privacy or both, it is necessary to consider whether these matters justify the interference with Article 10 rights… A balance has to be struck.”

Interestingly, the application of the law of confidence could be applied cumulatively following the establishment of the right to privacy in the contents of the journals:

“Prince Charles had an unanswerable claim for breach of privacy… When the breach of a confidential relationship is added to the balance, his case is overwhelming.”

The development of children’s right to privacy under Article 8 and the nuances of the Campbell test

Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 concerned an action under Article 8 made by the Murrays (Mrs Murray being better known as J.K. Rowling) on behalf of their child, David, to prevent publication of photographs taken of them in public. The appeal sought to establish that David had a reasonable expectation of privacy.

The court provided guidance on applying limb one of the Campbell test:

“The question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case…”

The court confirmed that children have a distinct right to privacy:

“The law should indeed protect children from intrusive media attention… a child has a reasonable expectation that he or she will not be targeted in order to obtain photographs in a public place…”

The case also illustrates the difficulty of fact‑sensitive analysis in privacy law, particularly in balancing Article 8 and Article 10 rights.

Privacy spotlighted

This issue resurfaced in Mosley v News Group Newspapers Ltd [2008] EMLR 20, where Eady J provided guidance on applying Campbell’s second limb:

“The judge will often have to ask whether the intrusion… was proportionate to the public interest supposedly being served by it.”

The case also raised the question of whether breach of privacy constitutes a tort under English law, an issue Eady J left for appellate courts to determine.

Privacy and public authorities: the lawful retention of data and Article 8

The retention of biometric data by public authorities came under scrutiny in S and Marper v United Kingdom (2008) 48 EHRR 1169.

Under s.64(1A) Police and Criminal Evidence Act 1984 (PACE) and the ACPO Guidelines, fingerprints and DNA samples could be retained indefinitely. The House of Lords initially found this proportionate under Article 8(2).

However, the ECtHR disagreed:

“The blanket and indiscriminate nature of the powers of retention… fails to strike a fair balance between the competing public and private interests…”

This prompted policy reform and later judicial clarification in R (GC) v Commissioner of Police of the Metropolis [2011] UKSC 21, where the Supreme Court held that indefinite retention under the ACPO Guidelines was unlawful.

The impact of R (GC) can be seen in R v Commissioner of Police of the Metropolis [2012] EWHC 1681 (Admin), where mandatory six‑year retention of custody photographs was found to be a disproportionate interference with Article 8.