Overlooked - Liberty

94 Overlooked: Surveillance and personal privacy in modern Britain
quality of information, and can be defeated if a defendant can show that the information is false,
trivial or in the public domain 186 . This may not be the case with privacy. Further, the existing cause
of action for breach of confidence has been destabilised by the judicial contrivance of rendering
obsolete the requirement for there to be a relationship between claimant and defendant.
Loss of the Relationship
The decisions in cases such as Venables constituted a dramatic remodelling of the traditional
requirement for a relationship of trust to subsist between a claimant and a defendant in an action
for breach of confidence. Subsequent decisions on invasions of privacy were often made without
the need to grapple with its substance as a legal concept because the facts could either fit neatly
into the breach of confidence action, or be shoehorned into it, in that information was usually
imparted in circumstances imposing an obligation of confidence. In Campbell it could not be said
that all of the information concerned was imparted in such circumstances, and the increasingly
inconvenient requirement for a relationship was unpicked to impose an obligation in respect of
private information where an individual can reasonably expect their privacy to be respected. This
appears to stitch too closely together the first and second limbs of the traditional breach of
confidence test: the quality of the information now gives rise to a climate, rather than potentially
preceding a relationship, of privacy.
This loss of the requirement for a relationship is concerning for the future of breach of confidence
actions. Confidence requires an engagement that gives rise to a relationship of trust and mutuality.
The right to privacy subsists without the need for a relationship; it is a concept that functions at a
more primary level. It is the basis upon which individuals control their level of engagement with the
world. Without the need for a relationship just what, one might ask, is said to have been violated by
a breach of confidence If there is no longer a need for a relationship, the law of confidence might
lose its value in its traditional area of protection, for example in the area of trade secrets. In some
cases it seemed that the focus had shifted almost entirely to the quality of the information itself, with
scant recognition of one the tenets on which traditional breach of confidence was based. However,
in two recent Court of Appeal decisions referred to above, McKennitt v Ash and Prince of Wales v
Associated Newspapers Limited, the court emphasised that, where a case does involve a traditional
relationship of trust and confidence, this will be important both in identifying the information in
respect of which the claimant may have a reasonable expectation of privacy and in the balancing
exercise where it will point in favour of giving the Article 8 right precedence over the Article 10 right.
Informational Privacy
That the protection of privacy against media intrusion has developed under the doctrine of
confidentiality goes some way to explaining why the protection afforded by the courts often fastens
on the disclosure of private material. Often in privacy claims against the media, there is great furore
surrounding the information that has been revealed, in minute detail, to the public. This can overlook
the fact that, with invasions of privacy, it is often the surreptitious way in which the material has been
obtained, along with the feeling of being spied upon, that causes the real distress to the
complainant. It is the invasion itself that is the nucleus of the harm.
This becomes all the more apparent in situations where there is an invasion of privacy but, in fact,
no information is divulged. Consider the Wainwrights, who each suffered a gross invasion of privacy,
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But there may be qualifications to the public domain defence; see page 96, below.