Misuse of Private Information

Misuse of private information: protecting your privacy rights

Your doctor, employer, school or college plus businesses, websites, apps, governments and individuals, among others, routinely use and sometimes misuse your private information. In an increasingly digital world where personal data flows freely, understanding your rights regarding misuse of private information and knowing when to take action has never been more important. Our experienced media litigation team specialises in privacy law and can help protect your private and family life from unlawful intrusion and wrongful disclosure.

What kind of personal information is private?

The Human Rights Act 1998 protects your right to respect for your family and private life, as well as providing protection to your home life and your correspondence. These rights stem from the European Convention on Human Rights and have been developed through extensive case law in the English courts.

These broad privacy rights have been interpreted by the courts over the years to protect many items of information of a personal nature, including:

• Information about your health and medical treatment
• Information about your relationships and sexuality, including sexual activity
• Photographs of you or your children
• Information about criminal investigations or other investigations into you or your conduct
• Your HR and employee records
• Your banking and financial details, including insurance premiums
• Your letters, emails, texts, voicemails and other private communications
• Information about sexual abuse or other sensitive personal matters
• Confidential information shared in professional relationships

When they're considering whether your private information has been misused, the Court will ask whether you have a reasonable expectation of privacy or whether the use of your private information would give substantial offence to an ordinary person or a reasonable person with ordinary sensibilities placed in similar circumstances.

Understanding private information misuse

What kind of behaviour constitutes misusing private information? If someone publishes or reveals private information about you, this may well constitute misuse. This might be a publication by a newspaper, a website, or through wrongful publication on social media, but it might also include the leaking of private information to a smaller, restricted group by an individual or organisation.

Misuse can arise when someone looks at your private documents or correspondence, even though they don't have permission to do so. The same is true if they obtain and store private information about you without consent. Cases involving wrongful disclosure have included situations where information enters the public domain without authorisation, causing significant hurt feelings and damage to human autonomy and dignity.

As well as protecting your private information under common law privacy claims, the Human Rights Act 1998 can protect one's private life from intrusion by others. Additionally, the Data Protection Act provides statutory protection, and data protection claims can be brought for breaches of statutory duty regarding how organisations handle your personal information.

The Court's assessment

The Court will look at all the circumstances of the situation to establish whether your reasonable expectation of privacy was justified. The factors that it will take into account include:

• Who you are and your public profile
• Whether you are a particularly private person
• What it was you were doing that you say is private
• If you were at home or in public
• What sort of intrusion into your privacy you are complaining about
• Why someone intruded into your private life
• Whether there was any consent to disclosure
• The circumstances in which information came into the hands of the misuser
• The impact of the misuse on you

The balancing exercise: privacy vs free speech

A publisher or defendant may try to defend a private information claim against them by arguing that they, too, have rights protected by the Human Rights Act. In particular, they may cite Article 10, the right to freedom of expression, which protects their right to disseminate your private information in a democratic society. They might claim a public interest justification or argue that there is general interest in the information.

In this circumstance, the Court must conduct a balancing exercise. The Court examines the facts of the case and then balances the competing rights, weighing the comparative importance of privacy against freedom of expression to decide which is stronger in the specific circumstances.

In several privacy cases, the Supreme Court held that there is no assumption that one right automatically trumps another. Each case requires an intense focus on all the circumstances to determine where the balance lies. At an early stage, courts may need to prevent publication through injunctive relief if the claimant's private information requires protection, while in other circumstances, a claim fails if public interest outweighs privacy.

What can I do if my personal information has been misused?

Our experienced media litigation team can help you to protect your private as well as your home life and correspondence. We have a strong track record in obtaining excellent results for our clients in privacy claims and data protection claims.

Our first step is to take your detailed instructions and to discuss the options available to you. We'll provide further guidance on the strength of your case and whether you can reasonably expect privacy in your specific circumstances. 

If appropriate, we'll then write to your opponent to set out the legal basis for your objections to their use of your private information. We'll also set out what they need to do to rectify the situation, including removing offending material. If they don't respond, or if there's a threatened publication, we can then represent you and take the matter all the way to court.

Legal remedies available

If Court action is appropriate, the primary remedies available from the Court for the misuse of private information are damages and injunctive relief. Also known as an injunction, this is a legal remedy from the court that requires the defendant to stop misusing your personal information, primarily by ceasing the publication of your private information.

If the misuse has already occurred, substantial damages recoverable can be available to compensate you. You can be compensated for:

• The infringement of the right itself
• Any distress or hurt feelings you might suffer
• Damage to your dignity or standing
• Any financial losses resulting from the conduct

In some cases involving particularly serious invasions of privacy, damages can be significant, reflecting the court's recognition of the fundamental importance of protecting private life in accordance with human rights principles.

Take action to protect your privacy

Don't let misuse of private information go unchallenged. Contact our specialist team today for expert guidance on protecting your privacy rights and pursuing remedies for wrongful disclosure or publication of your personal information.

To discuss your legal requirements, please email us or contact our team on 020 8858 6971.