Misuse of Private Information: The Development of Privacy Protection in English Tort Law

Misuse of Private Information: The Development of Privacy Protection in English Tort Law

Introduction

The protection of private life has developed into one of the most significant areas of modern English tort law. For much of its history, English law did not recognise a general tort of invasion of privacy. The traditional common law offered protection through more specific legal doctrines, including breach of confidence, trespass, defamation and certain forms of equitable relief. These doctrines could address particular intrusions or disclosures, but they did not provide a comprehensive answer to the growing problem of personal information being obtained, recorded and circulated without consent.

The development of mass-circulation newspapers, photography, electronic communications and digital publishing gradually exposed the limitations of the traditional approach. Information about health, intimate relationships, family life and personal conduct could be obtained and published even where no conventional confidential relationship existed between the individual and the publisher. The expansion of online platforms has made the issue more pressing: information can be copied instantly, distributed internationally and preserved long after the circumstances in which it was disclosed have changed.

The modern tort of misuse of private information developed in response to these challenges. It protects information in which an individual has a reasonable expectation of privacy against unjustified disclosure or other misuse. Its development has been strongly influenced by the Human Rights Act 1998, which brought the rights protected by the European Convention on Human Rights into the domestic legal framework. In particular, Article 8 protects respect for private and family life, while Article 10 protects freedom of expression.

The central difficulty is that these rights can conflict. A newspaper may wish to publish information about a public figure, while that person seeks to prevent disclosure of intimate details. An employer may hold information about an employee that is relevant to a workplace investigation but also private. A person under criminal investigation may become the subject of public reporting before being charged with an offence. A photograph taken in a public place may reveal information about a person’s family life that would otherwise have remained outside public attention.

English law does not resolve these conflicts by declaring privacy more important than expression, or expression more important than privacy. Instead, courts apply a structured, fact-sensitive approach. They first determine whether the claimant had a reasonable expectation of privacy in the information concerned. If that threshold is satisfied, they then balance the claimant’s privacy rights against the publisher’s freedom of expression, considering the circumstances, the public interest and the proportionality of the proposed or completed disclosure.

The modern framework is principally associated with Campbell v MGN Ltd [2004] UKHL 22, which marked a decisive stage in the recognition of misuse of private information as a distinct cause of action. Later decisions, including Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, Vidal-Hall v Google Inc [2015] EWCA Civ 311 and Bloomberg LP v ZXC [2022] UKSC 5, developed important aspects of the tort’s scope and application.

This article examines the historical foundations of privacy protection, the emergence of the modern tort, the two-stage legal test, the relationship between Articles 8 and 10, the treatment of photographs and personal data, the protection of children, the publication of information about criminal investigations, and the remedies available for misuse of private information. It focuses on the law of England and Wales and distinguishes the tort from defamation, breach of confidence and statutory data protection.

1. The Historical Absence of a General Tort of Privacy

English law historically developed without a single, comprehensive cause of action protecting all aspects of personal privacy. Unlike legal systems that recognise a broadly formulated right to privacy or a general tort of invasion of privacy, English law traditionally relied on specific legal rules directed at particular forms of interference.

A person whose private information was disclosed might have a claim in breach of confidence if the information had been communicated in circumstances imposing an obligation of confidence. A person whose property was unlawfully entered might have a claim in trespass. A person subjected to defamatory allegations might bring a defamation action. Yet these doctrines did not necessarily protect someone whose private activities were observed, photographed or published without consent in circumstances where no conventional confidential relationship existed and no defamatory allegation had been made.

The limitations of this approach became increasingly visible as communication technologies developed. A photograph of a person attending a medical appointment, for example, might disclose sensitive information without containing any false allegation. A newspaper could publish accurate details about a person’s family life without having obtained them through a traditional confidential relationship. A digital service could collect and use personal information in ways that affected privacy without fitting comfortably within the older equitable doctrine.

The absence of a general privacy tort did not mean that English law offered no protection at all. Rather, protection was fragmented and depended on the particular legal interest involved. Courts sometimes extended existing doctrines to respond to new circumstances, but those extensions could not always provide a coherent framework for private information.

In Wainwright v Home Office [2003] UKHL 53, the House of Lords declined to recognise a general tort of invasion of privacy in the circumstances of the case. The decision illustrates the historical caution of the common law towards creating an all-encompassing privacy action. The modern development took a more specific route: instead of announcing an unrestricted tort covering every intrusion into private life, the courts developed a cause of action focused on the misuse of private information.

This distinction remains important. The tort is not a universal remedy for every unwanted intrusion, offensive act or unpleasant experience. It is concerned with the legal protection of private information and the circumstances in which that information is obtained, used or disclosed.

2. Breach of Confidence as the Foundation

The modern tort developed from the equitable action for breach of confidence. Traditionally, breach of confidence protected information disclosed in circumstances where the recipient knew, or ought to have known, that the information was confidential and should not be used or disclosed improperly.

The doctrine was not originally designed as a comprehensive privacy remedy. Its central concern was the misuse of information that had a confidential character and had been received in circumstances importing an obligation of confidence. Commercial secrets, business information and information shared within relationships of trust could all fall within its scope.

Over time, however, the courts recognised that personal information could deserve protection even where the relationship between the person concerned and the publisher did not fit the traditional model of confidential disclosure. A publisher might obtain information through surveillance, covert photography or an unauthorised source. The information might never have been voluntarily entrusted to the publisher at all.

The development of the law therefore required a shift in emphasis. The question was no longer limited to whether the claimant had disclosed confidential information to the defendant. It increasingly concerned whether the claimant had a legitimate expectation that the information would remain private and whether the defendant’s use of it was justified.

This evolution was strongly influenced by the Human Rights Act 1998 and the Convention rights it incorporates into domestic law. The right to respect for private life under Article 8 provided a principled basis for recognising privacy interests that could not be adequately explained by traditional confidentiality doctrine alone.

In Campbell v MGN Ltd, the House of Lords acknowledged that the terminology of breach of confidence no longer fully described the nature of the protection being developed. The modern tort became known as misuse of private information because the information could be private even if it was not confidential in the conventional sense.

This was not merely a change of terminology. It reflected a change in the legal interest being protected. The tort came to focus on the individual’s interest in controlling the disclosure of information about private life, subject to the competing rights and interests that may justify publication.

3. The Human Rights Act 1998 and the Convention Framework

The Human Rights Act 1998 transformed the context in which English courts approached privacy disputes. The Act gives domestic legal effect to Convention rights and requires public authorities, including courts when acting in their relevant capacity, to act compatibly with those rights, subject to the statutory framework.

Two Convention provisions are particularly important.

Article 8 of the European Convention on Human Rights protects the right to respect for private and family life, home and correspondence. The protection is broad enough to encompass various aspects of personal identity, relationships, personal information and the development of an individual’s private life. It does not, however, create an absolute right to prevent every disclosure of personal information.

Article 10 protects freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas. The right is fundamental to journalism, political discussion, artistic expression, public accountability and the circulation of information. Article 10 is also subject to limitations recognised by the Convention, including those necessary to protect the rights of others.

The relevant provisions can be consulted through the Human Rights Act 1998, Schedule 1. Article 8 and Article 10 must be read in their Convention context, including the provisions governing limitations and permissible interferences.

The Human Rights Act did not simply create a direct, general privacy claim against every private individual. Rather, the Convention framework influenced the development of domestic law and the way courts resolve disputes between private parties. In privacy cases, the courts must take account of the relevant rights and apply the principles that govern their competing claims.

This horizontal dimension is especially significant in disputes involving newspapers, publishers, technology companies and individuals. A claimant may rely on the domestic tort of misuse of private information, while the defendant may invoke freedom of expression. The court must determine the dispute through the legal framework that gives effect to both interests.

Neither Article 8 nor Article 10 automatically has priority. The result depends on the facts, the nature of the information, the claimant’s reasonable expectation of privacy, the contribution made by publication to a matter of public interest and the proportionality of the interference with each right.

4. Campbell v MGN Ltd: The Modern Tort Takes Shape

The leading decision in Campbell v MGN Ltd [2004] UKHL 22 concerned the publication of information about Naomi Campbell, a well-known model who had publicly denied using illegal drugs. The Daily Mirror published material revealing that she had a drug addiction and was receiving treatment through Narcotics Anonymous. The publication also included photographs of her leaving a meeting.

Campbell accepted that the newspaper could correct her public denial by reporting that she had a drug addiction. Her complaint concerned the additional details about her treatment and the photographs showing her attending meetings. The case therefore required the court to distinguish between information that could legitimately be published to correct a public falsehood and additional private details whose disclosure was not necessarily justified.

The House of Lords held, by a majority, that publication of the additional information and photographs constituted an unjustified intrusion into her privacy. The fact that the newspaper could legitimately disclose one aspect of the story did not give it unrestricted permission to publish every associated detail.

The judgment is available through the House of Lords’ decision in Campbell v MGN Ltd.

The case established several enduring principles.

First, the law protects private information even where the claimant is a public figure. Public prominence may affect the balance between privacy and expression, but it does not eliminate privacy rights.

Second, the truth of information does not prevent it from being protected. Campbell’s addiction was not the only issue. The details of her treatment and the photographs revealing her attendance at support meetings raised separate privacy concerns.

Third, the court must consider the information actually disclosed and the justification for disclosing it. A publisher cannot automatically justify every detail by pointing to a legitimate public interest in the general subject.

Fourth, the case established the modern two-stage approach: whether the claimant had a reasonable expectation of privacy, followed by a balancing exercise between privacy and freedom of expression.

The significance of Campbell lies in its recognition that privacy protection cannot depend entirely on whether information was originally communicated in confidence. A person’s private life may deserve protection against unjustified publication even where the information has been obtained through other means.

5. Stage One: Reasonable Expectation of Privacy

The first stage asks whether the claimant had a reasonable expectation of privacy in the information or material concerned. This is an objective inquiry, although the court considers the circumstances from the position of a person in the claimant’s situation.

The question is not simply whether the claimant personally wanted the information to remain private. Nor is it determined exclusively by whether the information was obtained in a private place. The court examines all relevant circumstances to decide whether the information falls within the sphere of life protected by the tort.

Information about medical treatment, intimate relationships, family life, sexual life, personal correspondence and certain financial or personal matters may readily attract privacy protection. Other information may require closer examination. A photograph taken in a public street, for example, is not automatically private or automatically outside the law’s protection.

The reasonable-expectation test acts as a threshold. If the information does not attract a reasonable expectation of privacy, the claim ordinarily cannot proceed as misuse of private information on that basis. If the threshold is met, the court must undertake the second-stage balancing exercise.

The distinction between these stages matters. A court should not simply conclude that information is private because publication would be unjustified, nor should it deny the existence of a privacy interest merely because the defendant has a plausible public-interest argument. The first stage identifies the protected interest; the second determines whether publication is justified despite that interest.

5.1 The circumstances of the claimant

The court considers the claimant’s situation, including age, personal circumstances, the nature of the activity or information and the context in which the information was obtained.

A child may have a reasonable expectation of privacy in circumstances where the same information about an adult would be assessed differently. A person undergoing medical treatment may reasonably expect that details of the treatment will not be published merely because the person has some public profile.

The claimant’s conduct can also matter. A person who has deliberately placed particular information in the public domain may have a different expectation concerning that information from someone who has kept it private. However, public disclosure of one aspect of life does not necessarily remove privacy protection from every related detail.

5.2 The nature of the information

The subject matter is often central. Information concerning health, sexual relationships, intimate family circumstances or personal communications may be inherently private. Information concerning public professional conduct may be less likely to attract the same level of protection, particularly where it bears directly on a matter of public concern.

The categories are not absolute. A person’s professional conduct may contain private elements, while information about personal conduct may become relevant to a legitimate public-interest issue. The court must consider the particular information rather than relying exclusively on broad labels.

5.3 The place and circumstances of the activity

The location in which an event occurs is relevant but not conclusive. Conduct in a private home may strongly support an expectation of privacy, while conduct openly undertaken in a public place may reduce it. Yet the law does not treat public visibility as an automatic surrender of all privacy.

The distinction is particularly important in cases involving photographs. A person may be visible to passers-by but still have a reasonable expectation that their ordinary family activities will not be systematically photographed and circulated to a mass audience. The extent of intrusion, the purpose of the photography and the identity of those involved may all be relevant.

5.4 How the publisher obtained the information

The circumstances in which the information came into the publisher’s hands may be significant. Covert surveillance, unauthorised access, a confidential document or information obtained through a breach of trust may support the claimant’s argument that privacy should be respected.

However, information does not become private solely because the publisher obtained it improperly. The legal inquiry concerns the reasonable expectation of privacy in the information and the subsequent balance between the rights involved. The manner of acquisition is a relevant circumstance, not a substitute for the complete legal test.

6. Murray v Big Pictures: Children, Photographs and Public Places

In Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, the Court of Appeal considered a photograph of J.K. Rowling’s young son, David Murray, taken while he was being pushed in a buggy in a public street. The photograph was later published in a newspaper magazine. His parents brought proceedings on his behalf, arguing that the publication infringed his privacy.

The case addressed an important question: can a person, particularly a child, reasonably expect privacy in an image taken in a public place?

The Court of Appeal held that the claim should not have been struck out at the preliminary stage. It was at least arguable that the child had a reasonable expectation of privacy in the circumstances. The judgment emphasised that the question depends on the full context and cannot be resolved by a rigid rule that photographs taken in public places are always outside privacy protection.

The decision is available in Murray v Big Pictures (UK) Ltd.

The court identified a range of relevant considerations, including the attributes of the claimant, the nature of the activity, the place where it occurred, the purpose of the intrusion, whether consent had been given or could be inferred, the effect on the claimant and the circumstances in which the information came into the publisher’s possession.

The case is especially important because it recognises that children may be vulnerable to intrusive publication and may not be able to make meaningful decisions about media exposure. The fact that a child is accompanied by a parent in a public place does not necessarily mean that the child has surrendered any expectation of privacy.

At the same time, Murray does not establish that every photograph of a child in public is unlawful. The decision concerned whether the claim was sufficiently arguable to proceed. The outcome in an individual case depends on the circumstances and the balance between privacy and freedom of expression.

The wider principle is that public visibility and public disclosure are not identical. Being visible to people present at a particular moment does not necessarily justify the permanent and widespread circulation of an image or information about a person’s private life.

7. Stage Two: Balancing Privacy and Freedom of Expression

Where a reasonable expectation of privacy exists, the court must determine whether the claimant’s privacy interest is outweighed by the defendant’s right to freedom of expression. This is a fact-sensitive balancing exercise informed by the principles of proportionality.

The court does not assume that the claimant wins simply because the information is private. Nor does the publisher prevail simply because the information is interesting to the public. The court considers the nature of the information, the purpose of publication, the contribution made to public debate, the claimant’s position, the methods used to obtain the information and the extent of the intrusion.

The balance must be undertaken carefully because the competing rights are both important. Article 8 protects personal autonomy and private life. Article 10 protects communication and the public’s ability to receive information. A decision that gives excessive weight to privacy may restrict legitimate public debate; a decision that gives excessive weight to publication may allow intrusive disclosure with little genuine public benefit.

7.1 Public interest and public curiosity

The distinction between public interest and public curiosity is central. Information may attract readers without making a meaningful contribution to public debate. Sensational details about a celebrity’s private relationships may generate substantial attention but may have little legitimate public significance.

By contrast, information about misconduct by a public official, misuse of public funds, threats to public safety or conduct directly relevant to the performance of public responsibilities may contribute significantly to public debate.

The public-interest assessment is contextual. A public figure’s private life is not automatically beyond protection, and the involvement of a celebrity does not itself establish a sufficient reason for disclosure. Equally, the fact that information is intimate does not automatically prevent publication where a strong public-interest justification exists.

7.2 The contribution to public debate

Courts consider whether publication contributes to a debate of general interest. This factor is particularly important in cases involving journalism, political accountability, public safety and institutional misconduct.

A report revealing evidence of serious wrongdoing may justify disclosure of information that would ordinarily be private, depending on the circumstances. But a publisher must still consider whether the specific information disclosed is necessary or proportionate to the legitimate purpose. The existence of a public-interest subject does not automatically justify publication of every detail connected with it.

7.3 The claimant’s public position

The claimant’s position may affect the balance. A public official or person exercising significant public responsibilities may reasonably be subject to greater scrutiny concerning conduct relevant to those responsibilities. A private individual ordinarily has a stronger claim to protection against unnecessary exposure of intimate details.

The distinction is not absolute. Public officials retain privacy rights, while private individuals may become the subject of legitimate public-interest reporting. The relevant question is the connection between the information and the issue that publication is said to serve.

7.4 The extent of the intrusion

The court may consider how the information was obtained and the degree of intrusion involved. Covert photography, surveillance, the interception of communications or the disclosure of intimate medical information may weigh heavily in favour of privacy protection.

The publisher’s methods do not necessarily determine the case, but they may affect the proportionality assessment. A legitimate public-interest investigation does not grant unlimited permission to intrude into every aspect of the subject’s life.

7.5 Proportionality

Proportionality requires the court to examine whether the interference with privacy is justified by the legitimate objective pursued through publication. The assessment may include whether the public-interest purpose could have been achieved through a less intrusive form of disclosure.

For example, reporting that a public figure is receiving treatment may be justifiable in some circumstances, while publishing the exact location and time of treatment sessions, photographs of support-group attendees and intimate details of the process may go beyond what is needed to communicate the legitimate point.

The law does not require publishers to use the least intrusive method in every conceivable situation as an inflexible rule. Rather, proportionality informs the assessment of whether the actual publication is justified in the circumstances.

8. ZXC v Bloomberg: Privacy Before Criminal Charge

One of the most important modern authorities is Bloomberg LP v ZXC [2022] UKSC 5. The case concerned the publication of information relating to a criminal investigation into an individual who had not been charged with an offence. Bloomberg published material derived largely from a confidential law-enforcement document concerning the investigation.

The claimant argued that publication of the information about the investigation constituted misuse of private information. The Supreme Court dismissed Bloomberg’s appeal and upheld the finding that the publication was actionable.

The judgment is available through the UK Supreme Court’s case page for Bloomberg LP v ZXC.

The Court held that the legitimate starting point is that a person under criminal investigation generally has a reasonable expectation of privacy in information relating to that investigation before being charged. However, the Court expressly explained that this is not an absolute rule or an irrebuttable presumption. The question remains fact-specific, and the circumstances of a particular case may justify a different conclusion.

The reasoning reflects the potential consequences of publishing information about an investigation before any charge has been brought. Readers may infer that the person is guilty, even though the investigation may be preliminary, incomplete or ultimately discontinued. The publication may cause serious reputational consequences and interfere with the individual’s private life.

The case does not establish that every investigation must remain secret in all circumstances. There may be strong public-interest reasons for reporting certain investigations, particularly where public safety, the conduct of public authorities or the performance of public functions is at stake. The court must assess the particular information and balance the competing rights.

The decision also clarifies that privacy and confidentiality are related but distinct. Information may be private even where it is not confidential in the traditional legal sense. Conversely, confidential information does not necessarily engage privacy rights in every case. The confidential source of information may nevertheless be relevant to the assessment of whether the claimant had a reasonable expectation of privacy.

8.1 The presumption of innocence and reputational consequences

The protection recognised in ZXC is closely connected to the danger that an investigation will be treated by the public as evidence of guilt. The legal system distinguishes suspicion, investigation, charge and conviction. Publication that fails to preserve these distinctions may have consequences beyond the mere disclosure of an official process.

The tort of misuse of private information does not require the claimant to prove that the published information was false. Its purpose is not confined to correcting inaccurate allegations. Instead, it protects private life against unjustified disclosure, whether the information is true or false.

This is an important difference from defamation. A person may have a claim for misuse of private information even where the fact of the investigation is accurate, provided the legal requirements are satisfied and publication is not justified by the competing interests.

8.2 The limits of ZXC

The decision should not be read as guaranteeing anonymity to every person who becomes the subject of a criminal investigation. The Court made clear that the starting point is not an inflexible rule. The nature of the investigation, the public interest in disclosure, the claimant’s position and other circumstances may affect the outcome.

Once a person is charged, the position may change significantly because criminal proceedings are generally subject to the principle of open justice. Even then, specific information may remain subject to legal restrictions or other privacy protections. The effect of a charge is therefore important but does not resolve every privacy issue automatically.

9. Public Figures, Celebrities and the Limits of Publicity

Public figures often attract intense media attention, but the law does not treat fame as a complete waiver of privacy. A person may voluntarily discuss some aspects of their life while retaining a reasonable expectation of privacy in other matters.

The decision in Campbell illustrates the distinction. Campbell’s public statements about drug use affected the legitimacy of publishing information correcting her denial. They did not automatically justify publication of detailed information about her treatment and photographs of her attendance at support meetings.

The question is not whether a person is famous in the abstract. It is whether the particular information and the proposed publication fall within a legitimate public-interest justification sufficient to outweigh the privacy interest.

Public figures may have reduced expectations of privacy concerning matters closely connected with their public functions or statements. A politician’s conduct in office may be a proper subject of scrutiny. A celebrity’s private medical treatment may remain protected unless the circumstances provide a sufficiently strong reason for disclosure.

The same principle applies to public figures who voluntarily disclose personal information on social media. Sharing one photograph or discussing one aspect of a relationship does not necessarily authorise unrestricted publication of all related details. The court considers what was actually placed in the public domain, the context and the nature of the later disclosure.

The protection is not intended to allow public figures to control every narrative about themselves. It is intended to protect legitimate privacy interests while preserving the public’s ability to scrutinise matters of genuine concern.

10. Photographs, Surveillance and Information Obtained in Public

Photographs can reveal private information even when they contain no written allegation. An image may disclose a person’s medical treatment, family relationships, location, personal routines or association with particular people. The legal analysis therefore considers the information conveyed by the image and the circumstances of its acquisition and publication.

A photograph taken in a public place is not automatically outside the scope of the tort. As Murray demonstrates, the court must consider the context, particularly where children or vulnerable individuals are involved. The fact that a person could be seen by passers-by does not necessarily justify the widespread publication of a photograph.

Covert photography and surveillance may strengthen a claim where they reveal intimate or sensitive activities. The method of acquisition can contribute to the conclusion that the claimant had a reasonable expectation of privacy. Nevertheless, the legality of the method and the privacy character of the information are distinct questions.

The public interest may sometimes justify photographing or documenting conduct that would otherwise be private. Investigative journalism may expose misconduct or dangers that could not be revealed through ordinary observation. But the court must assess whether the specific publication is justified and whether the intrusion is proportionate to the public-interest purpose.

The distinction between observation and dissemination is also important. Information seen by a limited number of people in a particular setting may acquire a different impact when transformed into a permanent online record accessible to a large audience. Modern privacy law recognises that the scale, permanence and context of publication can matter independently of whether the original event occurred in public.

11. Private Information, Confidentiality and Data Protection

Misuse of private information must be distinguished from breach of confidence and data protection law, although the claims may overlap.

11.1 Misuse of private information

The tort protects information in which the claimant has a reasonable expectation of privacy, subject to the balancing exercise between privacy and expression. It does not depend exclusively on the existence of a confidential relationship or on the information being inaccurate.

The central questions concern the nature of the information, the claimant’s reasonable expectation of privacy and whether publication or use is justified in the circumstances.

11.2 Breach of confidence

Breach of confidence concerns the misuse of information that has the necessary confidential character and is subject to an obligation of confidence. The obligation may arise from the circumstances in which the information was received, the relationship between the parties or other relevant considerations.

Information may be both private and confidential, but the concepts are not identical. A private fact may be obtained without a traditional confidential relationship, while commercially confidential information may not concern anyone’s private life.

The development of misuse of private information from breach of confidence explains why the two causes of action sometimes overlap. However, they protect distinct legal interests and should not be treated as interchangeable.

11.3 Data protection

Data protection law regulates the processing of personal data under the applicable statutory framework, including the UK General Data Protection Regulation and the Data Protection Act 2018, as amended where applicable. It addresses matters such as lawful processing, transparency, data-subject rights and accountability.

A data protection claim is not the same as a misuse-of-private-information claim. Personal data may be processed unlawfully without every relevant act amounting to the tort, and a misuse-of-private-information claim may concern private information even where the dispute does not depend on a data protection breach.

Digital platforms and businesses should therefore avoid assuming that compliance with one legal framework necessarily resolves all privacy obligations. Depending on the facts, the same conduct may raise separate questions under data protection law, confidentiality, contract and the tort of misuse of private information.

12. Misuse of Private Information and Defamation

The distinction between misuse of private information and defamation is fundamental.

Defamation protects reputation against statements that satisfy the relevant requirements, including serious harm under section 1 of the Defamation Act 2013. Truth is a complete defence where the statutory conditions are met. The law is concerned with the defamatory meaning of the publication and the resulting reputational harm.

Misuse of private information protects private life against unjustified disclosure or use of information in which the claimant has a reasonable expectation of privacy. The information may be true. The issue is not whether the claimant has been falsely portrayed, but whether the publication unjustifiably intrudes into protected private life.

Consider a newspaper publishing accurate details of an individual’s medical treatment. If the information is genuinely private and the publication is not justified by freedom of expression or another relevant interest, a misuse-of-private-information claim may be available. A defamation claim would not ordinarily succeed merely because the information is embarrassing or damaging if the published statement is true.

Conversely, a false allegation of professional dishonesty may give rise to a defamation claim even if the allegation does not disclose private information. A statement can also raise both issues. For example, a publication may disclose private medical information while making false allegations about the person’s conduct. In such a case, the legal requirements for each cause of action must be considered separately.

The remedies may also differ. Damages for misuse of private information may address the loss of privacy and the distress caused by the intrusion. Defamation damages principally address reputational injury and the need for vindication. The Supreme Court in ZXC emphasised that misuse of private information is a distinct tort with different constituent elements and purposes.

13. Publication by Digital Platforms and Search Services

Digital technology has created new circumstances in which personal information may be collected, processed, indexed, linked or disseminated. A platform may not originate the information but may contribute to its accessibility or use. The legal position depends on the nature of the activity, the role of the defendant and the cause of action relied upon.

In Vidal-Hall v Google Inc [2015] EWCA Civ 311, the Court of Appeal considered claims arising from the alleged use of information about users’ internet activity. The case is important in the development of the relationship between misuse of private information and data protection. The Court of Appeal recognised misuse of private information as a tort for relevant legal purposes and addressed issues concerning damages for distress under the data protection legislation then in force.

The decision should be understood in its statutory and procedural context, including the data protection framework applicable at the time. The present data protection regime has since developed, so the case should not be used as a substitute for examining current legislation.

The broader point is that privacy concerns are not confined to newspapers publishing personal stories. Information about browsing behaviour, location, online activity and personal preferences may raise questions about private life, depending on the circumstances and the applicable legal framework.

A defendant’s role is important. The person who collects information, the organisation that processes it, the platform that makes it searchable and the publisher that discloses it may have different responsibilities. Liability is not automatic merely because a defendant participates in a digital system, but digital intermediaries cannot assume that the use of technology removes all privacy obligations.

The law must address the actual conduct and legal duties involved. Depending on the facts, a claimant may need to consider misuse of private information, data protection, breach of confidence or another cause of action.

14. Remedies for Misuse of Private Information

Where a claimant establishes misuse of private information, the court may grant remedies appropriate to the nature of the infringement and the circumstances of the case. The principal remedies may include damages, an injunction and, in suitable circumstances, other relief directed towards preventing or remedying the misuse.

14.1 Damages

Damages may compensate for the consequences of the misuse, including distress and the loss of control over private information, where recognised by the applicable legal principles. The assessment depends on the nature of the information, the extent of publication, the seriousness of the intrusion and the consequences for the claimant.

The amount is not determined by a universal tariff. A limited disclosure of moderately sensitive information may be assessed differently from widespread publication of highly intimate material. The court must consider the facts and the purpose of the remedy.

Damages in a misuse-of-private-information claim should not simply be calculated as if the case were defamation. The two torts protect different interests. The Supreme Court in ZXC noted the distinction between reputational damage in defamation and the privacy interest protected by misuse of private information.

14.2 Injunctions

An injunction may prevent publication or further use of private information where the legal requirements are satisfied. Interim injunctions are particularly important where disclosure has not yet occurred and publication could cause harm that would be difficult to reverse.

Courts approach prior restraint carefully because an injunction may interfere with Article 10 freedom of expression. The court must consider the evidence, the claimant’s privacy interest, the proposed publication and any public-interest justification.

Section 12 of the Human Rights Act 1998 contains special provisions relevant to relief that affects freedom of expression. Among other things, the court must have particular regard to the importance of the Convention right to freedom of expression and must apply the statutory conditions governing interim relief in relevant proceedings.

An injunction is not automatic simply because information is private. The court must consider whether the proposed interference with publication is justified and whether the statutory and procedural requirements have been met.

14.3 Removal, correction and other practical relief

In some cases, the practical objective may be to remove material from a website, prevent further circulation or restrict access to particular information. The availability of relief depends on the legal basis, the defendant’s role and the circumstances.

An apology or correction may be relevant in resolving a dispute, but privacy cases differ from defamation cases because the principal concern may be the disclosure itself rather than an inaccurate allegation. A correction may not undo the intrusion if the private information has already been widely disseminated.

The appropriate remedy therefore depends on the nature of the misuse. A claimant may seek to prevent future publication, obtain compensation for an intrusion that has already occurred or pursue another remedy available under the relevant legal framework.

15. Defences and Justifications: Why Privacy Is Not Absolute

Misuse of private information does not operate as an absolute prohibition on publishing private facts. The central balancing exercise recognises that there may be circumstances in which disclosure is justified despite a reasonable expectation of privacy.

Freedom of expression is the most important competing interest in many cases. A publisher may argue that the information contributes to a matter of public interest, exposes wrongdoing, informs public debate or concerns the performance of public responsibilities. The court must examine the specific justification rather than accept a broad assertion that the public is interested.

Consent may also be relevant. If a claimant has freely and clearly authorised publication of the information in question, the claim may be affected. However, consent to one use or disclosure does not necessarily authorise materially different uses or unrestricted redistribution. The scope of any consent must be examined in context.

Prior disclosure may matter, but it is not necessarily decisive. Information already widely available to the public may attract a reduced expectation of privacy, depending on the circumstances. Yet a new publication may still reveal additional details, amplify information to a different audience or revive material in a manner that raises separate concerns.

The public interest must be distinguished from the commercial value of a story. The fact that a publication may sell newspapers, generate clicks or attract attention does not itself establish that disclosure is justified. Commercial motivation is not necessarily incompatible with public-interest journalism, but it cannot replace the legal assessment of the information and the competing rights.

The court also considers proportionality. Even where publication of some information is justified, the disclosure of additional intimate details may be unnecessary or excessive. The reasoning in Campbell demonstrates that the public interest in reporting one aspect of a story does not automatically justify publishing every associated detail.

16. Practical Examples

The following examples illustrate the principles of misuse of private information. They are simplified illustrations and do not determine the outcome of any actual dispute.

Example one: Medical treatment. A newspaper obtains details of a person’s medical treatment and publishes them without consent. The information concerns health, a subject that commonly attracts privacy protection. The court would consider whether the claimant had a reasonable expectation of privacy and whether publication was justified by a sufficient public-interest reason. The truth of the information would not, by itself, defeat the claim.

Example two: A child photographed in public. A photographer takes and publishes a photograph of a child engaged in ordinary family activities in a public place. The fact that the photograph was taken in public would not automatically defeat a claim. The child’s age, the circumstances, the purpose of the photography, the scale of publication and the competing rights would all be relevant.

Example three: A person under criminal investigation. A media organisation publishes details of a confidential criminal investigation before the individual has been charged. Under ZXC, the legitimate starting point is that a person under investigation generally has a reasonable expectation of privacy in information relating to the investigation before charge. The result nevertheless depends on all the circumstances, including the public interest in disclosure.

Example four: A public official. A journalist publishes information about a public official’s private communications that reveal possible misuse of public funds. The information may be private, but the publication may contribute to a matter of public interest. The court would consider the importance of the information, the reliability and circumstances of its acquisition, the extent of the disclosure and whether publication was proportionate.

Example five: A celebrity’s private relationship. A magazine publishes intimate details of a celebrity’s relationship. The celebrity’s public profile does not automatically remove the expectation of privacy. Unless the publication is justified by a relevant public-interest consideration or another legal basis, the disclosure may constitute misuse of private information.

Example six: Online browsing information. A digital service collects and uses information about an individual’s online activities. Depending on the nature of the information and how it is processed, the conduct may raise data protection issues and potentially questions about misuse of private information. The applicable legal framework depends on the facts and the role of each organisation involved.

Example seven: A private message shared publicly. A person receives a private message and publishes it online. The fact that the recipient possesses the message does not necessarily give them an unrestricted right to publish it. The nature of the message, the relationship between the parties, the circumstances of receipt and any public-interest justification may be relevant.

These examples demonstrate that privacy law is not determined solely by whether information is true, whether a person is famous or whether an event took place in public. The legal assessment depends on the nature of the information, the reasonable expectation of privacy and the balance between the competing rights.

17. The Continuing Development of Privacy Protection

Misuse of private information continues to develop as courts address new forms of publication and new ways of obtaining and using personal information. The foundational principles remain recognisable, but their application changes as social expectations, communication technologies and the practical consequences of disclosure evolve.

Digital publication has made information more persistent and easier to redistribute. A photograph or personal detail may be copied across platforms, indexed by search engines and preserved long after the original publisher removes it. The impact of disclosure may therefore extend beyond the audience originally intended by the publisher.

At the same time, the internet has expanded the ability of individuals to communicate information, criticise powerful institutions and participate in public debate. Privacy law must not be applied in a manner that unnecessarily restricts legitimate expression or allows individuals to suppress reporting simply because it is unwelcome.

The central task remains one of principled balancing. Courts must identify the private interest that deserves protection, assess the contribution made by the proposed publication to a matter of public interest and determine whether the interference with either right is proportionate.

The cases from Campbell to ZXC demonstrate the movement from a narrow focus on confidential relationships towards a more developed protection of private information. The tort now recognises that privacy can be violated through the publication of accurate information, that photographs can reveal protected aspects of life and that a person under investigation may retain a reasonable expectation of privacy before being charged.

Yet the tort remains specific rather than universal. It does not create an unlimited right to control information about oneself, nor does it replace the distinct rules governing defamation, confidentiality, data protection or other legal wrongs. Its continuing development depends on careful attention to the particular information, the circumstances of publication and the legal rights at stake.

Key Takeaways

• Misuse of private information is a distinct tort in the law of England and Wales that protects private information against unjustified disclosure or use.
• The tort developed from breach of confidence, particularly as the limitations of the traditional confidential-relationship model became apparent.
• The Human Rights Act 1998 and the Convention rights protected by Articles 8 and 10 have been central to the modern development of privacy law.
• Campbell v MGN Ltd [2004] UKHL 22 is a foundational authority recognising the modern form of the tort and the need to balance privacy with freedom of expression.
• The first stage of the test asks whether the claimant had a reasonable expectation of privacy in the information concerned.
• The second stage balances the claimant’s privacy interest against the defendant’s freedom of expression, taking account of the circumstances and proportionality.
• Public figures do not automatically lose their privacy rights, and the publication of one aspect of private life does not necessarily justify disclosure of every related detail.
• Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 confirms that photographs taken in public may still raise privacy issues, particularly where children are involved.
• Bloomberg LP v ZXC [2022] UKSC 5 establishes that a person under criminal investigation generally has a reasonable expectation of privacy in information relating to that investigation before charge, subject to a fact-specific assessment.
• The tort does not require the information to be false. True information may still be protected where disclosure is unjustified.
• Misuse of private information differs from defamation, which primarily protects reputation against qualifying defamatory statements.
• Breach of confidence and data protection law are separate legal frameworks, although the same conduct may raise issues under more than one.
• Remedies may include damages and injunctions, but courts must consider the relevant legal requirements and the effect of relief on freedom of expression.
• The tort is not a general remedy for every unwanted intrusion or distressing experience; the claimant must establish the elements of the relevant cause of action.

Frequently Asked Questions

1. What is misuse of private information in English law?

Misuse of private information is a tort that protects information in which a person has a reasonable expectation of privacy against unjustified disclosure or use. The court first determines whether the information attracts a reasonable expectation of privacy and, if it does, balances the claimant’s privacy interest against the defendant’s freedom of expression.

2. Is there a general tort of invasion of privacy in England and Wales?

English law does not recognise an unlimited, all-purpose tort covering every possible invasion of privacy. Instead, the modern tort of misuse of private information protects private information in defined circumstances. Other legal doctrines may address different forms of intrusion, including breach of confidence, trespass, harassment or data protection breaches.

3. What did Campbell v MGN Ltd establish?

Campbell v MGN Ltd [2004] UKHL 22 was a foundational decision in the development of the modern tort. It recognised that private information could be protected beyond the traditional confines of breach of confidence and established the importance of balancing Article 8 privacy rights against Article 10 freedom of expression.

4. What is a reasonable expectation of privacy?

It is an objective assessment of whether, in the circumstances, the claimant could reasonably expect the information to remain private. The court considers the nature of the information, the claimant’s circumstances, the place and activity concerned, the manner in which the information was obtained and other relevant factors.

5. Does a public figure have a right to privacy?

Yes. Public figures retain privacy rights. Their public position, previous disclosures and the relevance of the information to matters of public interest may affect the balance, but fame does not automatically remove protection for medical information, intimate relationships or other private matters.

6. Can publishing true information amount to misuse of private information?

Yes. Unlike defamation, the tort is not principally concerned with whether the information is false. Accurate information about health, family life, personal relationships or other private matters may be protected if the claimant had a reasonable expectation of privacy and publication is not justified by the competing rights and interests.

7. Can photographs taken in public violate privacy?

They can, depending on the circumstances. Murray v Big Pictures (UK) Ltd illustrates that a photograph taken in a public place is not automatically outside privacy protection. The claimant’s circumstances, the purpose of the photography, the nature of the activity and the scale and purpose of publication may all matter.

8. What protection does ZXC v Bloomberg provide?

Bloomberg LP v ZXC [2022] UKSC 5 confirms that the legitimate starting point is that a person under criminal investigation generally has a reasonable expectation of privacy in information relating to that investigation before being charged. The Supreme Court made clear that this is not an absolute rule and that the facts of each case remain important.

9. Is misuse of private information the same as breach of confidence?

No. The doctrines overlap but protect distinct interests. Breach of confidence concerns information subject to an obligation of confidence. Misuse of private information focuses on the claimant’s reasonable expectation of privacy and the justification for disclosure. Information may be private without being confidential in the traditional sense.

10. How does misuse of private information differ from defamation?

Defamation protects reputation against qualifying defamatory statements and requires serious harm under the Defamation Act 2013. Misuse of private information protects private life against unjustified disclosure. A statement may be true and non-defamatory but still disclose private information unlawfully.

11. Does publication always become lawful once information is in the public domain?

Not necessarily. Prior disclosure may affect the reasonable expectation of privacy and the balance of rights, but the effect depends on what was disclosed, how widely it became available and whether the later publication reveals additional information or changes the circumstances of disclosure.

12. What remedies are available?

Depending on the circumstances, the court may award damages or grant an injunction to prevent further disclosure or use. The availability and scope of relief depend on the evidence, the nature of the intrusion, the applicable legal requirements and the need to respect freedom of expression.

13. Can misuse of private information apply to digital data?

Potentially, yes. Digital information may reveal private aspects of a person’s life, but the legal analysis depends on the type of information, the way it was collected or used and the role of the defendant. Data protection law may also apply, but it is a distinct legal framework.

14. Does the tort protect every unwanted disclosure?

No. The claimant must establish a reasonable expectation of privacy and show that the disclosure was not justified by the applicable balance of rights. Information may be lawfully published where a sufficient public-interest justification outweighs the privacy interest.

Conclusion

The development of misuse of private information represents a major transformation in the law of England and Wales. English law moved from a fragmented system, in which privacy protection depended heavily on established doctrines such as breach of confidence, towards a distinct tort capable of addressing unjustified disclosure of personal information even where no traditional confidential relationship exists.

The Human Rights Act 1998 provided an important framework for this development by requiring the legal system to take account of the rights to respect for private life and freedom of expression. The decision in Campbell v MGN Ltd established the modern approach, while Murray v Big Pictures and Bloomberg v ZXC demonstrated how the principles apply to photographs of children and information concerning criminal investigations.

The tort does not create an absolute right to secrecy. It requires courts to determine whether the claimant had a reasonable expectation of privacy and, if so, whether publication is justified by the competing rights and interests. Truth alone does not remove protection, just as public curiosity alone does not necessarily justify disclosure.

The distinction between private information and confidential information, between privacy and reputation, and between public interest and public curiosity remains essential. These distinctions allow the law to protect personal autonomy without suppressing legitimate journalism, public accountability or the exchange of ideas.

In an age when personal information can be recorded, searched, copied and distributed on an unprecedented scale, misuse of private information provides an important legal mechanism for protecting the conditions in which private life can exist. Its continuing development will depend on maintaining a principled balance: respecting the individual’s legitimate claim to privacy while preserving the freedom to publish information that genuinely serves the public interest.