EU Data Protection Regulation

Like the Leveson Inquiry, this became a moving target in the hinterland of this thesis. The Regulation began life on 25 January 2012 when the European Commission released a draft to replace Directive 95/46/EC, the foundation for current EU (and UK) data protection legislation.

When - and if - finally agreed the Regulation could have a significant and wide-ranging impact on businesses, imposing new compliance obligations with significant sanctions for non-compliance. On March 12, 2014, the European Parliament concluded the formal First Reading to confirm the compromise text of the draft Regulation approved by Parliament's LIBE Committee in October 2013.⁷⁸ The Council of Ministers has yet to finish its review of the Regulation, which must then be agreed with the Parliament later in 2014. The recent CJEU judgement of Google Spain, dealt with in Chapter 6, may have set the direction of travel for some of its eventual provisions.

was published on 29 November 2012:

http://webarchive.nationalarchives.gov.uk/20140122145147/http://www.official-documents.gov.uk/document/hc1213/hc07/0780/0780_i.pdf

77 http://www.theguardian.com/media/2014/may/28/press-regulator-ipso-board-ros-altmann-charles-wilson

78 Vote: 621 in favour of the Regulation, 10 against and with 22 abstentions.

CHAPTER 2

Breach of Confidence as a Celebrity Privacy Remedy

2.1 Introduction

Breach of confidence has jurisdictional origins and manifestations in contract, tort and property as well as equity. Many consider it is sui generis in nature.⁷⁹ Its association with such a broad spectrum of areas of legal activity helps to explain its durability, flexibility and utility from 18^th to the 21^st century. The traditional narrative that places Prince Albert v Strange⁸⁰ as the watershed case in this regime is, perhaps, too limited.⁸¹ It also ignores some of the irresolvable idiosyncrasies in the case. Although some key cases in Chancery were important developments, the primary mechanisms for protecting confidentiality were not simply the inventions of Chancery from before the Judicature Acts. In fact, the courts seem to have been willing to be pragmatic in the protection of confidential information by using “whatever mechanism was to hand”.⁸² As a classic celebrity case however and with all its faults – the ascribed celebrity of the Queen’s consort seeking the protection of the Queen’s own courts to protect the royal couple’s privacy - it is an example of circumstances that could occur as much now as then. There are many echoes which were replayed with only a slightly different factual matrix with another ascribed celebrity in the Prince of Wales’ Hong Kong Diaries case in 2006. It was also, as will be explored, a missed opportunity to define and develop more clearly a specific English law of

79 A full discussion can be found in Aplin, Bently, Johnson and Malynicz Gurry on Breach of Confidence: The Protection of Confidential Information Oxford 2012, 4.01 – 4.117.

80 Prince Albert v Strange (1849) 1 De G & SM 652.

81 Gurry 2.01 – 2.157.

82 Ibid 2.02

privacy. It was left to Warren and Brandeis in the US to pray elements of the Prince Albert case in aid as they formulated their common law synthesis.

This chapter concentrates on the celebrity privacy rights of all categories protected by breach of confidence, acknowledging that this regime has grown through the development of a broader case law encompassing commercial and trade secrets. There it still has a vital and active role. This chapter considers not only the protected interests but also the ways in which permitted interference with the rights has evolved. Then the civil elements of the remedies and enforcement issues are examined.

Issues relating to what would now be termed proportionality in the development of the regime will be considered because breach of confidence is the major area of this thesis to have faced the irresistible domestic impact and mutational effect of the HRA.⁸³ Issues of proportionality and the balancing exercise – when played out in the context of the new, post-Campbell⁸⁴ tort of misuse of private information – resulted in breach of confidence having two manifestations. The first is the “traditional” formulation, dealt with in this chapter, and which includes the “hybrid” breach of confidence action involving the kind of personal information that also contains within it a commercial value as in Douglas v Hello.⁸⁵ The second is where, as in Campbell, the claim is for misuse of private information and which forms the basis of the new tort explored in Chapter 3.

The true basis of that action relates to the protection of personal autonomy and dignity.⁸⁶ Whether, as a celebrity privacy remedy, breach of confidence has become something of a specialist adjunct will only become clear with the passage of time. Post HRA, the “traditional” breach of confidence has been

“utilized, colonized, hollowed [and] then discarded” in favour of the two-stage

83 Described as a “tectonic” shift by Raymond Wacks Privacy and Media Freedom Oxford 2013, 3.

84 Campbell v MGN [2004] UKHL 22.

85 Douglas v Hello (No 8) [2007] UKHL 1.

86 Campbell per Lord Nicholls [13 – 15] and Lord Hoffman [48 – 50].

test. Having initially used it as a “vehicle” the courts then shed its confines so that its classical elements are no longer structurally important.⁸⁷

2.2 Protected Rights

The nature of confidential information was aptly characterised by Lord Donaldson in the Spycatcher case as being like an ice cube:

Give it to the party who undertakes to keep it in his refrigerator and you still have an ice cube…. Give it to the party who has no refrigerator or who will not agree to keep it in one, and by the time of the trial, you just have a pool of water which neither party wants. It is the inherently perishable nature of confidential information which gives rise to unique problems.⁸⁸

The classic formulation of breach of confidence requires the following elements:

there must be information which is confidential, the claimant must be able to show that the defendant is under an obligation not to use or disclose the information and must also be able to show that either the proposed or actual use or disclosure of that information is in breach of the obligation of confidentiality. If the information becomes public then it cannot – any longer – be confidential. In these circumstances it will have lost its “quality of confidence”.⁸⁹ This area – when facts are in the public domain – will be examined in respect of the implicit fourth element of the action: the public interest defence. This requires consideration separately and in greater detail than the other elements described briefly above. It may be open to the discloser to justify the breach of confidence on the basis that, among other things, it is in the public interest.⁹⁰

87 Rebecca Moosavian Charting the journey from confidence to the new methodology EIPR 2012, 34 (5) 324 – 335, 335.

88 AG v Guardian Newspapers Ltd (Number 2) [1989] 2 FSR 27 [48].

89 “Something which is public property and public knowledge cannot per se provide any foundation for breach of confidence”: Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41 [47]. Meggary J’s approach was approved in AG v Observer Ltd [1990] 1 AC 109, 168 per Lord Griffiths and unanimously by the House of Lords in Douglas v Hello [2008] 1 AC 1, [307].

90 See Y Cripps The Public Interest Defence to the Actions for Breach of Confidence and The Law Commission’s Proposals on Disclosure in the Public Interest (1984) Oxford

Contemporary celebrity cases like Campbell and Douglas – which are dealt with later - confirm that breach of confidence⁹¹ remains a developing and flexible area of law “the boundaries of which are not immutable but may change to reflect changes in society, technology and business practice”⁹² and which can alter its “centre of gravity”⁹³ allowing it to protect informational privacy. As a consequence – in terms of the second element – being able to demonstrate that the recipient of the information understood that information was confidential or private may result in the court treating the recipient as being bound.⁹⁴

2.2.1 A celebrity cause of action par excellence or a convenient accommodation? Prince Albert v Strange.

The celebrity chronology of breach of confidence actions starts with Prince Albert v Strange because that was the cause of action on which the court issued and then confirmed the restraining injunction.⁹⁵ But it only got to that result by adopting a strained formulation within the litigation itself - and the Courts’

judgments in their various reported iterations - to steer the arguments through the copyright “reefs” which might have wrecked the action.⁹⁶ This case is a significant example of judicial ingenuity in accommodating the litigation and

Journal of Legal Studies 361. What is less clear is whether its absence is a substantive pre-requisite of the action or whether it operates as a defence.

91 The breach of confidence claim in Campbell was abandoned in the Court of Appeal because she accepted that she had presented herself in a “false light”, anticipating a successful defence on that issue on public interest grounds. In equitable terms, she had not come to the court “with clean hands”.

92 [2001] QB 967, 1011 [165] (CA) per Keene LJ.

93 [2004] 2 AC 457 (HL), 473 [51) per Lord Hoffman.

94 Gurry Ch 1 [1.03].

95 See also Gurry Ch 2 [2.05 – 2.09] and [2.39 – 2.57]; Jeremy Phillips Prince Albert and the Etchings [1984] 12 EIPR 344 - 349; D Tritter A Strange Case of Royalty: The Singular

"Copyright" Case of Prince Albert v Strange (1983) 4 JMLP 111 – 129,113 and Fiona R Burns Lord Cottenham and the Court of Chancery Journal of Legal History Vol 24 No. 2 (August 2003) 187 – 214, 195 (recording the comment by Sir John Rolt – a former Attorney General and Lord Justice in Chancery – that Lord Cottenham tended "to crush the facts of any case so as to fit any principle upon which he preferred to act".)

96 [1849] EWHC Ch J20 (08 February 1849); 41 ER 1171, 1 McN & G 2, [1849] EWHC Ch J20, (1849) 2 De Gex & Sim 652. D.Tritter A Strange Case of Royalty 112 observes: "The several reports of Prince Albert v Strange generally recite the same events, although with important differences, depending upon which affidavit is being summarised. To a present-day observer, Chancery’s idiosyncrasies make it impossible to say which, if any, of the recitations of the occurrences can be identified as incontrovertible fact…. From a modern viewpoint, findings of fact must seem the product of the most fragile laboratory of truth."

privacy needs of the royal couple. The Prince had sought an injunction to prevent Strange from publishing a catalogue that Strange had prepared, describing private etchings made by the Queen and the Prince “principally of subjects of private and domestic interest.” Strange did not know that, at the time he prepared the catalogue, the copies of the etchings he had seen had been obtained without the royal artists’ consent.

Although the case was decided on breach of confidence grounds, there is an underlying groundswell of copyright within it.⁹⁷ It was opened on behalf of the Prince – on the avowed basis that it did not turn upon the question of copyright – by Mr Sergeant Thomas Talfourd, a copyright expert who drafted the relevant Copyright Act.⁹⁸ Lord Cottenham, the Lord Chancellor, could not be seen to decide the case using pure copyright law because the law only applied to published works (and the Prince asserted that the etchings had not been published). There was a separate line of authority in Chancery restraining the use or publication of unpublished literary and artistic works as common law property.

In the Prince’s original affidavit in the Royal Archives sworn on the 20 October 1848 he states:

And I say that the impressions of the said etchings were intended to be for the private use of Her Majesty and myself only and that – although copies of some of such etchings have been given (occasionally and very rarely) to some of the

personal friends of Her Majesty one to one friend and one to another, yet I say (speaking positively for myself and to the best of my belief for her Majesty) that no such collection as that so advertised for exhibition as aforesaid was ever given away by us or either of us or by our or either of our permission.

It was not suggested that Strange’s catalogue itself breached the royal couple’s copyright: Strange was simply describing what he had seen.

97 Or more correctly, copyright denial.

98 Copyright Act 1842.

But it was not only Strange who had seen the works, a point which goes to the heart of any viable breach of confidence action.⁹⁹The Times on 7 September 1848 carried a detailed review of the etchings “about to be presented to the public”.¹⁰⁰

Although Counsel for the Prince contended that property in the drawings had been interfered with, he submitted that that interference was not essential to the argument mounted.¹⁰¹ Defence submissions focussed on this.¹⁰² The judgement for the Prince was clearly founded upon his having property in the sketches such that (somehow) any catalogue listing them thereby impaired the property.

But it was actually a breach of privacy that supplied the basis for the relief founded in breach of confidence.¹⁰³ The original Bill from Prince Albert used the terms ‘private’ and ‘privacy’ several times.¹⁰⁴ During the preliminary injunction hearing before Vice-Chancellor Knight Bruce the judge also used the word

‘privacy’ together with that of ‘property’: there had been ‘the abstraction of one of its most valuable quality, namely privacy’.¹⁰⁵ He added:

All the cases in which the court has interfered to protect unpublished letters or manuscripts … proceed upon that principle of protecting privacy¹⁰⁶ ….[and that] the defendant’s

99 The existence of The Times review – ahead of the initial injunctive proceedings - does not feature at any stage in the legal argument or decisions on this case. If Strange himself had written the review for the “Berkshire paper” it is odd that nothing to this effect was mentioned during the proceedings. I have been unable, so far, to locate the paper in question from which The Times printed this review.

100 As noted immediately above The Times on p. 5 credited the review to “a Berkshire paper”. The Prince’s affidavit, on which the original bill was filed and on which the Prince’s action was based, is dated six weeks later on 20 October 1848. The Times review described the works as dating back to 1840 and being signed by the royal couple.

101 2 De G & Sm 652 at 677 – 679.

102 1 Mac & G 25 at 33 – 35.

103 1 Mac & G 25 at 47.

104 The Prince’s Affidavit of 20 October 1848 was witnessed by S Anderson. It specifically states that the drawings and etchings were ‘principally subjects of private and domestic interest … For greater privacy, they (had been made) by means of a private press … The impressions had been placed in some of the private apartments of Her Majesty … Such etchings were private portraits.’

105 Prince Albert v Strange (1849) 1 De G & SM 652, at 670.

106 At 671.

conduct had been an intrusion – an unbecoming and unseemly intrusion … a sordid spying into the privacy of domestic life’.¹⁰⁷

When the matter came before Lord Cottenham, the Lord Chancellor, similar language was used:¹⁰⁸

In the present case, where privacy is the right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend on any legal right; and, to be effectual, it must be immediate.

Whatever the reason – the need to accommodate the royal couple with some kind of remedy which was more conveniently labelled breach of confidence to distract from the latent copyright issues - the case is a crucible that mixes all the major elements: the attributed celebrity of the royal family, an itinerant, disaffected journalist (the precursor of the modern paparazzo),¹⁰⁹ a profit-motivated publisher, a “burgeoning public avid for news”¹¹⁰ and the technologies that allowed mass speed printing and mass distribution of the product.¹¹¹ The court itself acknowledged that “the importance which has been

107 At 700.

108 Prince Albert v Strange [1849] EWHC Ch J20 (8 February 1849) 12, [5].

109 Jasper Tomsett Judge had made a career as a royal-watcher, filing news and gossip about the court, and publishing cheap pamphlets describing the stables and kitchens at Windsor and other such matters for tourists. He discovered that a cache of the

engravings had been given to a former employee of an occasionally out-sourced printer.

This former employee, Thomas Middleton, and Judge struck a deal: £5 for 60 of the prints. Judge then agreed with Strange to publish a critical catalogue of these etchings, to be sold to visitors to the exhibition planned for Strange's shop in Paternoster Row. Judge issued a number of press releases publicizing both pamphlet and exhibition.

110 Megan Richardson and Leslie Hitchens Celebrity privacy and the benefits of simple history (Chapter 10, 266) in Andrew T Kenyon and Megan Richardson New Dimensions in privacy law: international and comparative perspectives Cambridge University Press 2004.

111 It is possible that it was one of Judge’s press releases that was picked up and used verbatim in the “Berkshire paper” which was then reproduced in The Times of 7 September 1848. See also the pamphlet written by Judge and published by Strange in 1849 selling for half-a crown: “The Royal Etchings". A Statement of Facts Relating To The Origin, Object, and Progress of the Proceedings in Chancery, Instituted by Her Majesty &

the Prince Consort. An original of this is in LSE’s Women’s Library.

attached to this case arises entirely from the exalted station of the Plaintiff.”¹¹² These ingredients remain as constants in the contemporary privacy landscape.

Another key factor in the judgements was the fact that the plates from which the etchings had been made belonged to the Prince.¹¹³ Lord Cottenham LC noted:

the catalogue and the descriptive and other remarks therein contained, could not have been compiled or made, except by means of possession of the several impressions of the said etchings surreptitiously and improperly obtained….The

possession of the defendant….must have originated in breach of trust, confidence or contract….¹¹⁴

Thus, at the outset, this portion of the law of private information – with significant elements within the judgment that could have been used to fashion a law of privacy per se in English law – began its “celebrity” life. The formulation by the Lord Chancellor of an action founded on “trust, confidence or contract” which was binding on the defendant’s conscience stretches what might be regarded as truly “confidential” in a modern sense.¹¹⁵ What it does encapsulate, express and prevent as a corrective equitable thread, however, is what amounts to unconscionable conduct and any benefit that might be derived from such unfairness.

The privacy elements, articulated clearly in the case, were quickly picked up in the US. Just over 120 years ago Samuel Warren and Louis Brandeis wrote their seminal Harvard Law Review article.¹¹⁶ They argued that a new tort of privacy was not only necessary - given the pace of social and technological developments at the cusp of the twentieth century in US society - but that fundamental common law principles could be applied to create it. Until the HRA,

112 (1849) 2 De Gex & Smale 652; 64 E.R. 293; (1849) 1 Mac & G 25, 41 ER 1171, CA.

113 Ibid: [the law] “shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known”.

114 (1849) 1 Mac & G 25, 41 ER 1171, 1178 - 1179.

115 Tugenhat and Christie The Law of Privacy and the Media 2^nd Edn Oxford 2011 165 (footnote 11) in Chapter 4.

116 Samuel D Warren and Louis D Brandeis The Right to Privacy (1890) 4 Harvard LR 193.

this creative process to define and develop a nominate tort in respect of privacy was avoided in England and Wales.¹¹⁷

Despite having ventured into this area of private matters, the potential lay dormant in English law for nearly 100 years until the middle of the next century.¹¹⁸

Despite having ventured into this area of private matters, the potential lay dormant in English law for nearly 100 years until the middle of the next century.¹¹⁸