Privacy Concerns in respect of Breach of Privacy
This article from Taylor Hampton Solicitors discusses aspects of Breach of Privacy.
The normal and proper response to the humiliation of a breach of privacy is always the same: shut it down. However, it is not always readily clear to a victim right away that someone has stolen and/or is misusing your private information.
How long do I have to sue?
Under the Limitation Act 1980, privacy claims have the same limitation period as other torts (six years) compared to other media-related claims such as libel and defamation (one year). This time usually runs from when the breach of privacy occurred. However, it is to be expected that someone who has disseminated your most private information does not necessarily do it straight in front of you; the court understands it will not always be immediately obvious to you that you have been wronged.
You need to establish what information is out there, where it came from, who is responsible, and how they got it, before you even come to issuing a claim. You then face the challenge of establishing that the material exposed is something which you would afford you a ‘reasonable expectation of privacy’, pursuant to Article 8 ECHR, to the extent that it outweighs the Defendant’s right to freedom of expression under Article 10 ECHR.
But imagine how difficult this would be if your private information was (1) stolen by a major international news corporation (2) from a place you never thought they could look and (3) using technological manipulation no one had any idea was possible.
The s32 exemption
This is a question that exists at the heart of the enduring phone hacking scandal– the Mobile Telephone Voicemail Interception Litigation (MTVIL for short). It is well established that the information gleaned by the tabloid press (most famously, by The News of the World, which was shut down as a result of the scandal) was occasionally, and in some circumstances, almost routinely sourced by journalists or private investigators listening to voicemail messages, often of the most intimate and personal nature, or by instructing private investigators to gather their victim’s private information unlawfully on their behalf.
To complicate matters further, it is also well-established that evidence of the wrongdoing was actively.
Fortunately, the Limitation Act 1980 deals with this eventuality with provisions under s32, which allows the court discretion to extend the 6 year limitation period where there has been ‘fraud, concealment or mistake’ and the victim did not know (and could not have known) of the Defendant’s wrongdoing. Essentially, in circumstances where the Defendant has hidden or misled the Claimant, limitation will run from the time the Claimant gained knowledge of the unlawful acts. This was discussed in C v MGN [1997] 1 WLR 131 as information which establishes a prima facie case, and Buxton LJ in The Kriti Palm [2006] EWCA Civ 1601 ruled that an assessment of a claim would readily establish whether the claim could have been brought without the knowledge of the concealed information.
Therefore, for the purposes of limitation, a cause of action runs from when a Claimant knew, or should have known, that they may have a claim. The way this has been dealt with in the phone hacking litigation is to determine two key tests – when the Claimant knew they had a claim (actual knowledge: a subjective test) and when the Claimant ought to have found out (constructive knowledge: an objective test). The Gemalto case [2022] 3 WLR 1141 addressed the issue in the context of ‘when the Claimant knew or could with reasonable diligence have known’ (in this case, that the Claimant realised a cartel was secretly carrying out anti-competitive conduct).
This two stage test was also applied in the case of OT Computers [2021] EWCA Civ 501, where it was noted that in order for a Claimant to take ‘reasonably diligent steps’, they must be put on notice – there must be a trigger for them to start investigating.
What this means for privacy law
Mr Justice Fancourt, in his judgment of December 2023 in Duke of Sussex and Others v MGN looked at when the claimants could reasonably have been triggered to begin their investigations into a claim. He rejected the Claimants’ argument that it was not common knowledge that the press had engaged in phone hacking (or that one had been a victim), and in a situation where Claimants suspected misuse of their private information, they might (wrongly) accuse friends or family members of selling their private information to the press.
The Judge applied the second limb of the test outlined in Gemalto – the constructive test – and considered when they ought to have known, and held that Claimants ought to have taken a close interest in the phone hacking scandal as it was unfolding from 2011 onwards. He highlighted the need for Claimants to be ‘reasonably attentive’ and not ‘sitting back and doing nothing’.
Limitation therefore runs from when a Claimant knew that they had a worthwhile claim, or could have discovered that they did, had they taken steps to investigate it, with an onus on Claimants to remain ‘as attentive as is reasonable’.
In the claim of Fiona Wightman v MGN, who was, incidentally, represented by this firm, the trigger fell around October 2014, when it would have been publicly known that the wave of litigation that was to culminate in 2015 with the decision in Gulati v MGN, was underway. Ms Wightman was the former partner of well-known comedian Paul Whitehouse, and in the period around October 2014 was having, in the words of the judge, ‘a very difficult year’ and leading a ‘hectic, busy and exhausting life’. Notwithstanding from all the above, this did not detract, he reasoned, ‘from a normal standard of attentiveness’. He ruled that her claim was statute barred.
How this affects Claimants
What this means is that Claimants who experience a breach of privacy have a serious responsibility to be attentive to a potential claim – it is not just about not ‘dithering’ – a Claimant need to attentive to the possibility of a claim, and make the effort to research the wrongs done against them. This is where obtaining expert advice is so crucial. If you suspect you are a victim of a breach of privacy, seek expert advice as soon as possible. Taylor Hampton is a specialist media law firm, and if you require advice, please get in touch.
For more information
For more information please see our Privacy Section on our services page or contact on [email protected] 00442074275970