(F) RECEIPT OF PRIVATE INFORMATION
English law does not yet recognize a tort of invasion of privacy.[1] Equity has, however, protected confidential relationships for many years in the form of the action for breach of confidence.[2] Recently this action has been characterized as a tort,[3] although its equitable foundations[4] remain significant in determining the nature of the claim and the remedies which are awarded, so it is considered in Chapter 19 with the other equitable wrongs.[5] Account of profits is available for breach of the duty of confidence, even though the action does not involve interference with property rights, but rather is a claim founded on unconscionability.[6]
It appears that a distinct tort has emerged, however, which is derived from the action of breach of confidence but does not depend on the identification of an obligation of confidence.[7] This arises where information has been acquired or received and the acquirer or recipient knows or ought to know that there is an expectation of privacy.[8] This is appropriately called the tort of misuse of private information,[9] for which the remedy of account of profits might be available in the exercise of the court’s discretion.
- [1] Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457.
- [2] See p 514, below. 132 Walsh v Shanahan [2013] EWCA Civ 411, [55] (Rimer LJ).
- [3] 133 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, 438 (Deane J); Stephens v
- [4] Avery [1988] Ch 449, 455 (Sir Nicolas Browne-Wilkinson V-C).
- [5] See p 516, below.
- [6] See Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, 438 (Deane J).See also Vestergaard Fradsen A/S v Bestnet Europe Ltd [2013] UKSC 31, [2013] 1 WLR 1556, [22] (LordNeuberger).
- [7] A v B plc [2003] QB 195; Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] AC 457.
- [8] Primary Group (UK) Ltd v Royal Bank of Scotland plc [2014] EWHC Ch 1082, [223] (Arnold J).
- [9] Walsh v Shanahan [2013] EWCA Civ 411. See C Hunt, ‘Rethinking Surreptitious Takings in the Law ofConfidence’ (2012) IPQ 66.
