Misuse of Private Information

How To Stop Disclosure And Protect Your Privacy

A threat to disclose private information, whether that involves personal communications, messages, intimate or sexual photographs or videos, details of a relationship, family matters, health information or other sensitive material, can cause serious distress and reputational harm and may, in some circumstances, amount to a misuse of private information.

The risk can be particularly serious where disclosure could affect your family life, relationships, employment, professional standing, business interests or reputation, or where information may be shared with colleagues, clients, employers, family members, the wider public or the press.

Where disclosure has been threatened or appears imminent, obtaining specialist legal advice at an early stage can be important. Once private information has been published or circulated, the resulting harm may be difficult or impossible to reverse.

The law of misuse of private information provides a means of challenging unjustified disclosure. Depending on the circumstances, it may be possible to obtain undertakings restricting disclosure or seek an injunction from the Court preventing private information from being disclosed or published.

Whiterose Blackmans Solicitors provides specialist advice on misuse of private information, threatened disclosure and urgent injunctive relief.

What Is Misuse Of Private Information?

Misuse of private information is a legal cause of action which protects information where an individual has a reasonable expectation of privacy.

The modern law developed through cases including Campbell v MGN Ltd [2004] UKHL 22 and involves consideration of the right to privacy under Article 8 and freedom of expression under Article 10 of the European Convention on Human Rights.

Information capable of attracting a reasonable expectation of privacy may include:

• intimate photographs or videos;
• private messages, emails and other personal communications;
• medical and health information;
• information about relationships and family life;
• financial information;
• information obtained through covert surveillance; and
• information obtained through unauthorised access to private accounts, devices or correspondence.

Whether information is legally private will depend on the particular facts and circumstances. Not every disclosure of personal, confidential or embarrassing information will amount to a misuse of private information.

The Legal Test For Misuse Of Private Information

There are two principal stages to determining whether there has been, or would be, a misuse of private information.

Is there a reasonable expectation of privacy?

The first question is whether the information attracts a reasonable expectation of privacy.
This is an objective assessment. The Court considers whether a reasonable person in the position of the individual concerned would expect the information to remain private.

Certain categories of information will ordinarily be highly private in nature, including intimate photographs and videos, private sexual communications, medical information and sensitive information concerning personal relationships or family life.

However, the assessment will depend on the circumstances, including:

• the nature of the information;
• how it was obtained;
• the circumstances in which it was originally shared;
• the purpose for which it is held; and
• the extent to which it is already in the public domain.

Is the disclosure justified?

If a reasonable expectation of privacy exists, the Court must then consider the competing rights involved.

Neither the right to privacy nor freedom of expression automatically takes priority. The Court considers the justification for interfering with each right and whether the proposed disclosure is proportionate in the circumstances.

Privacy law cannot therefore be assessed simply by asking whether information is embarrassing, damaging or unwanted.

For example, a proposed disclosure may concern alleged wrongdoing or another matter which it is argued should legitimately be communicated. The Court must consider the nature of the information, the circumstances and the justification for disclosure.

The Supreme Court considered the structure of this test in Bloomberg LP v ZXC [2022] UKSC 5

Acting before private information is disclosed

Where disclosure has been threatened but has not yet taken place, early intervention can be particularly important.

The first step will usually involve establishing what information is held, how it was obtained, what the other party intends to do with it and whether there is an imminent risk of disclosure.

Depending on the circumstances, legal intervention may include sending a formal letter before action.

This can put the other party on notice of the legal position and the potential consequences of disclosure and seek written assurances or formal undertakings concerning the future use of the information.

Undertakings may include agreements:

• not to disclose or publish the information;
• not to circulate it to specified individuals or organisations;
• not to make further use of the material;
• to restrict how information is retained; or
• where appropriate, to permanently delete information and confirm that no copies remain.

In some cases, satisfactory undertakings can resolve a dispute without the need for court proceedings.

Where undertakings are refused, or where the risk of disclosure is sufficiently urgent, it may be necessary to consider applying to the Court for an injunction.

Urgent privacy injunctions

An interim injunction can be sought to restrain the disclosure, publication or other misuse of private information while the underlying dispute is determined.

Applications for privacy injunctions require careful preparation and evidence establishing both the legal basis of the claim and the need for immediate protection.

In cases of exceptional urgency, it may be possible to apply to the Court without giving prior notice to the other party. Whether this is appropriate will depend on the circumstances of the case.

An interim injunction does not ordinarily determine the dispute permanently.

Where an injunction is granted without notice on an urgent and interim basis, the Court will normally list a further hearing at which the other party has an opportunity to respond and challenge the order.

Proceedings may therefore involve further hearings, additional evidence and potentially a final trial.

We will advise on the merits of seeking an injunction, the procedure involved, likely costs and the obligations associated with obtaining urgent injunctive relief.

Removal, deletion and restrictions on private information

Where private information has already been disclosed or is being retained by another party, legal remedies may extend beyond preventing an initial publication.

Depending on the circumstances, it may be appropriate to seek:

• removal of material;
• restrictions on further publication or circulation;
• restrictions on the future use of the information;
• delivery up of particular material; or
• deletion where appropriate.

Deletion is not an automatic entitlement.

There may be legitimate reasons why a limited copy of information needs to be retained, including for the purposes of existing or anticipated legal proceedings.

The question of retention should therefore be distinguished from unrestricted disclosure. In some circumstances, carefully defined restrictions on how information can be retained and used may provide appropriate protection while allowing necessary evidence to be preserved.

Compensation for misuse of private information

Where a claim succeeds, damages may be available for the invasion of privacy.

Compensation may take account of the distress caused by the misuse of private information and the individual’s loss of control over their private information.

In Gulati v MGN Ltd [2015] EWCA Civ 1291, the Court of Appeal recognised that compensation can extend beyond distress alone to the interference with privacy itself.

The amount of compensation will depend upon the circumstances, including:

• the nature and sensitivity of the information;
• the extent of the disclosure;
• the nature and duration of the intrusion; and
• the consequences for the individual concerned.

Confidentiality and privacy during court proceedings

Individuals considering privacy proceedings may understandably be concerned that bringing a claim could draw further attention to the information they are seeking to protect.

Open justice is the starting point for court proceedings. However, under CPR 39.2, the Court may protect an individual’s identity or hear all or part of proceedings in private where the relevant legal requirements are satisfied.

This may be appropriate, for example, where publicity would defeat the purpose of the hearing or damage the confidentiality which the proceedings are intended to protect.

These protections are not automatic.

Anonymity, a hearing in private and restrictions on reporting are distinct measures and each requires appropriate justification. An anonymised case may also still be reported.

These issues should therefore be considered carefully at an early stage when deciding how a privacy claim should be pursued.

Funding a misuse of private information claim

Misuse of private information claims are specialist litigation matters. The costs involved will depend on factors including:

• the complexity of the dispute;
• the nature and volume of the evidence;
• the urgency of the situation;
• the response of the other party;
• whether an injunction is required; and
• whether proceedings continue to further hearings or trial.

An initial case review and formal pre-action correspondence will ordinarily involve significantly lower costs than an urgent injunction application or contested court proceedings.

Privately funded legal advice

Our misuse of private information work is privately funded. We do not offer legal aid or act on a no win, no fee basis.

We will discuss the likely costs with you at an early stage so that you understand the potential financial commitment and can make an informed decision about proceeding.

Speak to our Specialist Solicitor

If you are concerned about the threatened or actual misuse of private information, Whiterose Blackmans Solicitors can advise on the legal options available.

Our advice can include pre-action correspondence, formal undertakings, urgent privacy injunctions, restrictions on the use or disclosure of private information and claims for compensation.

Where disclosure is threatened or imminent, obtaining advice at an early stage can be particularly important.

Contact Whiterose Blackmans Solicitors to discuss your circumstances and the options available.

This page provides general information about the law of England and Wales and is not a substitute for legal advice on the circumstances of a particular case.

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