University of Melbourne Law School Research Series
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
University of Melbourne Law School Research Series |
|
Last Updated: 17 September 2018
Varieties of Damages for Breach of Privacy
Jason NE Varuhas*
I. Introduction
This chapter interrogates which types of damages are and ought to be available for the action of misuse of private information in English law, and which types of damages are not and ought not to be available. The chapter first considers compensatory damages, arguing that a vindicatory model does and ought to characterise the approach to compensatory damages. According to this approach, damages are available as of right for the wrongful invasion of privacy in itself, as well as for proven consequential losses. The chapter then examines non- compensatory damages. The courts are yet to authoritatively determine the availability of such damages for breach of privacy, and the principles governing their award. The chapter argues that exemplary damages ought to be available but that disgorgement and ‘vindicatory damages’ ought to be rejected. Reasonable fee or user damages should not be recognised. Lastly, the chapter considers damages in lieu of an injunction, arguing that these damages are equivalent to a fee for the loss of a liberty to enforce primary rights. Such damages ought very rarely to be awarded in the place of an injunction in a case of ongoing, unjustified invasion of privacy.
All in all, the remedial approach to breaches of privacy ought to, and increasingly does follow that which has characterised vindicatory torts such as trespass to land, false imprisonment and battery. These actions have long performed a constitutional role in protecting those interests fundamental to English civil society.
II. Compensatory Damages
This section will first sketch the outlines of a 'vindicatory' model of compensatory damages that has long pertained within, and indeed is a defining feature of the English law of torts. The section then advances a normative claim that this model of compensatory damages ought to be adopted within the action for misuse of private information, and an allied expository claim that the law of privacy, as it has evolved, has embraced the vindicatory model. The law is thus on the right course.
A preliminary point requires to be made. I consider that only limited insight can be gained from debating whether the action for misuse of private information is or is not 'a tort'. This is because there are many torts, they perform different functions and they may have radically different characteristics from one another, including – importantly for present purposes – quite different approaches to causation and damages. Of greater value is to identify
the normative concerns that underpin creation of the primary privacy rights, and a remedial model which gives effect to and carries forward these concerns at the remedial stage. This will ensure that, as a practical matter, remedies help the law to achieve its normative ends, rather than stymieing fulfilment of those goals. As a matter of principle, connecting rights and remedies ensures that the field of privacy is coherent. As Lord Reed observed in AIB, ‘the loss resulting from a breach of duty has to be measured according to legal rules, and different rules apply to the breach of different obligations’, these rules in turn reflecting the distinctive ‘nature’ and ‘rationale’ of the obligations breached.1
A. Preliminaries: Factual and Normative Losses2
Let us begin our examination of compensatory damages by distinguishing two different types of compensatory damages.
The first type of compensatory damages is damages for material or factual loss. Such damages compensate for the negative physical, emotional, psychological or economic effects actually suffered by the claimant in consequence of a wrong, such as costs of repairing a machine, pain and suffering or distress. These types of loss are subjective in the sense that whether they are suffered and their extent will vary from one claimant to the next, according to the actual consequences they experience as a result of the wrong. Recovery of this type of loss is at least subject to ordinary ‘but for’ analysis and to remoteness rules, albeit those rules may vary from one type of wrong to the other. This type of material or factual loss is recoverable across the law of torts, although specific heads of damage vary across different actions.
The second type of compensatory damages is radically different in nature, and the availability of these damages is, within the law of torts, in general limited to those torts, like
* I am grateful to participants at the International Workshop on Remedies for Breach of Privacy, Melbourne Law School, 12–13 December 2016 for comments on an earlier draft of this chapter and for two days of stimulating discussion on the law of remedies for breach of privacy. An earlier draft of this chapter was also presented at a ‘Judges and the Academy’ seminar held at the Supreme Court of Victoria on 17 February 2017. I am grateful to participants for their very helpful comments, and in particular to fellow panellist, Hon Marcia Neave, and to Hon Chris Maxwell, President of the Victoria Court of Appeal.
1 AIB Group Plc v Mark Redler & Co Solicitors [2014] 3 WLR 1367, [92]. See also, to similar effect, Lord Reed’s judgment in Morris-Garner v One Step (Support) Ltd [2018] UKSC 20, [31] et seq. Please note that Morris- Garner was handed down by the Supreme Court as this chapter was being finalised. I have done my best to incorporate reference to the case where appropriate.
2 See further JNE Varuhas, Damages and Human Rights (Oxford, Hart Publishing, 2016) chs 2–3; JNE Varuhas, ‘The Concept of “Vindication” in the Law of Torts: Rights, Interests and Damages’ (2014) 34 OJLS 253.
trespass to land, battery, false imprisonment and defamation, which are actionable per se and constituted to afford strong protection from outside interference to basic interests. Within these torts a claimant may recover damages for the injury to those of his or her interests directly protected by the tort. So traditionally one recovers in false imprisonment for the damage to one’s interest in liberty inherent in the wrongful imprisonment under the head of loss of liberty. In battery one may recover for the damage to one’s interest in physical integrity inherent in unwanted physical contact, whether or not the battery caused the claimant any injury, distress or medical expenses. One may recover in defamation for the damage to one’s interest in one’s reputation, regardless of whether the libel causes any distress or loss of income. In trespass to land the landowner recovers damages for the wrongful interference with his or her interest in exclusive possession of land, notwithstanding whether the wrong left the landowner no worse off.
Unlike damages for factual losses, which correspond with real-world effects, these damages compensate for a damage that is constructed by and only exists on the plane of the law. In this way they are akin to expectation damages in the law of contract; there is no such thing as an expectation loss outside of the law, but without construction of this head promises would be rendered hollow. I refer to these types of damages as ‘normative damages’. In constructing these heads of damage the law is seeking an end or a goal – that is to give effect to the policies which underpin creation of the primary rights. As we shall see, torts such as false imprisonment and trespass are characterised by a primary function of affording strong protection to basic interests from outside interference, and vindicating these interests, in the sense of affirming and reinforcing their importance within a hierarchy of legally protected interests and that they ought to be respected. The law, by responding to every wrongful infringement with a substantial award of damages for the interference with the interest in itself, and regardless of the happenstance of whether factual losses are suffered, affords strong protection to the interest, which is the very object of the law’s protection, and sends a signal that these are interests of the utmost importance, which ought to be maintained inviolate.
For normative damages factual causation is irrelevant. Normative damage is inherent in the wrongful interference. This is often captured in the idea of a presumption of damage within torts actionable per se. In the leading authority of Ratcliffe, the Court observed that the law ‘implies’ general damage ‘in every breach of contract and every infringement of an absolute right’; ‘In all such cases the law presumes that some damage will flow in the ordinary
course of things from the mere invasion of the plaintiff’s rights’.3 In contrast within torts actionable only upon proof of loss, ‘it is the damage done that is the wrong; and the expression “special damage,” when used of this damage denotes the actual and temporal loss which has, in fact, occurred’.4 Similarly in Forster, Stephenson LJ observed, ‘[w]hereas damage is presumed in trespass and libel, it is not presumed in negligence and has to be proved’.5
Thus, if someone camps on my land for two weeks without my consent, I may recover substantial damages in trespass regardless of the fact that I would not have leased the land but for the trespasser’s use, and regardless of the fact that I myself, for whatever reason, could not and would not have made use of the land. So I am left no worse off in any material sense but I still recover.6 Similarly in conversion, I can recover against you for converting my airplanes, even though it was inevitable that if you had not converted them someone else would have.7 So your conversion leaves me materially no worse off as I would not have had the planes anyway. Nonetheless, I can recover substantial damages. In defamation the claimant ‘gets damages because he was injured in his reputation, that is simply because he was publically defamed’.8 In respect of battery it has been said at the highest level that the ‘most trifling and transient physical assault’ will give the claimant an action ‘sounding in damages (and if appropriate aggravated or exemplary damages)’.9 There is no appeal here to but for counterfactual analysis; one gets damages simply because one’s basic interests were wrongfully interfered with. Similarly, if one is falsely imprisoned it ought not to matter that one could have been lawfully imprisoned in exactly the same way in any case, albeit this orthodoxy has come under threat in recent times.10
How do we explain this approach to factual causation? Why does it not matter that, for example, the claimant would have suffered an interference in any case? To answer this we need to go back to the nature of torts such as defamation or battery as being torts concerned with protecting interests from outside interference. The law’s starting assumption in these actions is
3 Ratcliffe v Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524, 528 (emphasis in original).
4 ibid.
5 Forster v Outred & Co [1982] 1 WLR 86, 94.
6 Varuhas, Damages and Human Rights (n 2) 55–59; Varuhas, ‘Concept of Vindication’ (n 2) 284–89.
7 Kuwait Airways Corp v Iraqi Airways Co [2002] UKHL 19; [2002] 2 AC 883.
8 Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, 150.
9 Watkins v Secretary of State for the Home Department [2006] 2 AC 395, [68].
10 Compare Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 (especially the speech of Lord du Parcq) and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245. See Varuhas, Damages and Human Rights (n 2) 61–67.
that the position each person ought to be in is one in which his or her basic interests are inviolate and maintained in pristine form. Wherever there is an interference with those interests that cannot be justified, the law takes the view that the claimant has been subject to an interference to which he or she ought not to have been subjected. Normative damages redress the imbalance between the position the claimant is entitled to be in – one in which the claimant’s interests are in pristine form – and the claimant’s position given the wrongful interference, where his or her interests are subject to an encumbrance to which they ought not to have been subject. This approach is most explicit in conversion, where the courts assess damages by reference to ‘the owner’s position had he retained his goods’ – that is, the position the owner ought to have been in – as opposed to the position the owner actually would have been in but for the defendant’s wrongful actions.11 Thus, ‘there may be no actual loss’ but ‘the law takes the view as a matter of policy that the claimants ... are entitled to substantial compensation for the mere invasion of their rights’;12 in such circumstances, ‘damages do not necessarily depend upon precisely what would have occurred but for the wrong’.13
As Lord Hoffmann said in Kuwait Airways, ‘causal requirements follow from the nature of the tort’.14 How we frame the damages inquiry depends on the normative concerns of the law, and in vindicatory, protective torts the counterfactual is constructed in such a way as to give maximal protection to basic interests.
Remoteness is irrelevant for normative damage. A head of damage that responds to the wrongful interference in itself can never be too remote from the wrongful interference.
B. Connecting Rights and Remedies
Within the law of torts, normative damages have been confined to a set of torts which I refer to as vindicatory torts and which protect those rights that Blackstone described as absolute rights, and which – within the common law system – have been regarded as constitutional in nature. The paradigm vindicatory torts are trespassory torts, such as trespass to land, false
11 Kuwait (n 7) [80]–[83].
12 Devenish Nutrition Ltd v Sanofi-Aventis SA [2009] Ch 390, [36].
13 Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323; [2003] EMLR 25, [26].
14 Kuwait (n 7) [127]–[129].
imprisonment and battery. However, other torts in this category include defamation, conversion and nuisance by interference.
The reason normative damages have traditionally been confined to these torts lies in their primary functions. These torts are concerned to protect the most fundamental of human and proprietary interests from outside interference, creating zones of protection, and to vindicate the importance of these interests in the sense of affirming and reinforcing their importance and that they ought to be maintained inviolate. Normative damages give direct effect to these protective and vindicatory policies at the remedies stage. In this light it is unsurprising that newer contexts in which such damages have been recognised or contemplated include anti-discrimination torts and human rights damages actions, these fields similarly being underpinned by a policy of strong protection and vindication of basic interests.15
We see the primary protective and vindicatory concerns of these actions in their core features. They are all actionable per se; loss is not the gist of the action. That an individual may prove a wrong and access remedies for a mere interference with interests, even if it leaves him or her no worse off, attests to and reinforces the fundamental importance of the interests as well as their inherent value independent of harm, while affording those interests strong protection. Thus in false imprisonment it has been said that ‘[w]hen the liberty of the subject is at stake questions as to the damage sustained become of little importance’.16 Of defamation, Lord Hoffmann explained that reputation is a part of a person’s ‘personality, the “immortal part” of himself and it is right that he should be entitled to vindicate his reputation and receive compensation for a slur upon it without proof of financial loss’.17 Lord Goff in Re F recalled the fundamental principle that every person’s body is inviolate, and that one is protected not only against injury but also against any physical molestation.18
Within these torts liability is not fault-based but strict or relatively strict.19 The focus is
firmly on the claimant’s interests and whether they were interfered with. Such strict approach to liability signals the importance of the protected interests, and that it is inexcusable to trespass upon these interests whether one is acting benevolently, reasonably or innocently. Liability is
15 eg, in Australia under anti-discrimination law (Wotton v State of Queensland (No 5) [2016] FCA 1457, [1619]– [1629]) and in New Zealand for breach of the New Zealand Bill of Rights Act 1990 (Dunlea v Attorney-General [2000] NZCA 84; [2000] 3 NZLR 136).
16 John Lewis v Tims [1952] AC 676, 680.
17 Jameel v The Wall Street Journal Europe Sprl [2006] UKHL 44; [2007] 1 AC 359, [91]. But note the Defamation Act 2013, s 1 and certain procedural restrictions: Tamiz v Google Inc [2013] EWCA Civ 68, [48]–[52].
18 In re F [1991] UKHL 1; [1990] 2 AC 1, 72.
19 See further Varuhas, Damages and Human Rights (n 2) ch 2.
strictest in trespass to land, where voluntarily walking onto another’s land is sufficient to generate liability, whether the defendant knew it was someone else’s land or not. In defamation the defendant may be liable even if he or she had no reason to know the material published was defamatory, his or her belief as to the truth of the statement was reasonably held or the defamation was the product of an innocent mistake. Liability is less strict in battery and false imprisonment, but still relatively strict. Intention to cause harm is not required, nor necessarily an intention to, for example, touch in the knowledge that the claimant did not consent. However, in battery an intention to touch is required, or at least reckless touching. In false imprisonment it may be that only an intention to do the act that causes the imprisonment is required, albeit other authorities suggest an intention to imprison or recklessness is necessary. Either way, it does not matter that the claimant did not know that he or she was imprisoned and would have had no occasion to leave the place of confinement, while blameless, good faith or benevolent acts or acts based on a genuine misunderstanding may generate liability.20
If the claimant proves an interference with his or her protected interests, the onus is on the defendant to justify his or her act. Whereas it is relatively easy for the claimant to make out a prima facie case, the defendant may face an uphill task; this reflects the importance placed on the protected interests – the cards are stacked in the claimant’s favour, as the law’s preference is for basic interests to be maintained inviolate. Defences protect only the most important of countervailing interests and will be construed narrowly. Something of great importance is required to justify interference with fundamental interests.
Thus the basic features of these torts reflect and give effect to the underlying normative concerns of these actions – to afford strong protection to fundamental interests and to affirm and reinforce their importance and the fact that they ought to be maintained inviolate and respected.
The action for misuse of private information – or perhaps more appropriately, the action for breach of privacy21 – as it has evolved over time, shares the basic features of these vindicatory
20 See eg R v Governor of Brockhill Prison, ex parte Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19.
21 See the discussion below in this section regarding the expanding scope of the action to encompass protection of privacy interests beyond those in information.
torts. That protection of privacy belongs to the genus of vindicatory, rights-based actions has likewise been recognised explicitly in comparative jurisprudence.22
Actionable Per Se. Such claims are actionable per se. It is not a prerequisite for bringing a claim for misuse of private information that one is able to demonstrate actionable or special damage, as is the case for loss-based actions such as negligence or misfeasance in public office. For example, in AAA the claimant, a child, did not even know the relevant photos were taken. The child suffered no physical injury to person or property, nor any financial losses, in consequence of the breach of privacy.23 Indeed there was no evidence of distress before the court. Yet a claim was successfully brought and damages awarded. Similarly, two of the child claimants in the case of Weller successfully bought privacy claims and recovered damages, despite apparently suffering no distress or other actual loss.24 In Imerman it was held that simply accessing or retaining private information could be wrongful in itself.25 In similar vein, in Gulati, it was confirmed that phone hacking constituted an actionable breach of privacy, regardless of whether the claimant was aware of the phone hacking and whether the information garnered was ever published (see, eg, Yentob’s case).26 Again, claims were actionable regardless of the fact there was no physical injury to person or property or special losses: wrongful interference with privacy is the gist of the action, not the suffering of loss. This is also made clear by the fact that causation is not a formal element of the privacy cause of action, as it is for torts for which loss is the gist of the action, such as negligence. That causation is a core feature of such actions follows from the fact that proof of loss is also a core element; if loss is a core element then one must also show that it was the defendant who caused that loss.
It has been suggested that the impact of the defendant’s actions on the claimant is a factor relevant to whether an expectation of privacy arises.27 However, it has not been suggested that a serious impact on the claimant is a prerequisite to an expectation of privacy. And more generally the proposition that whether an expectation exists in the first place depends on an ex post facto analysis of the impacts of the defendant’s actions on the claimant seems a
22 eg, C v Holland [2012] NZHC 2155; [2012] 3 NZLR 672, [75]; Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1, [2], [42].
23 AAA v Associated Newspapers Ltd [2012] EWHC 2103; [2013] EMLR 2; Weller v Associated Newspapers Ltd [2013] EWHC 2694; [2014] EMLR 7 (QB), [2016] 1 WLR 1541 (CA).
24 Weller (QB) (n 23) [189]–[197]; Weller (CA) (n 23) [64]–[65].
25 Imerman v Tchenguiz [2010] EWCA Civ 908; [2011] 2 WLR 592, [68].
26 Gulati v MGN Ltd [2015] EWHC 1482; [2016] FSR 12 (Ch), [2016] 2 WLR 1217 (CA).
27 eg, Murray v Express Newspapers [2009] Ch 481, [36]; Weller (CA) (n 23) [36]–[38].
dubious proposition: how can determination whether a right existed or not depend on events subsequent to the conduct giving rise to the (putative) wrong? Such proposition also seems out of step with the dicta in Campbell that it is not a necessary precondition for a privacy claim that disclosure of the relevant information would be ‘highly offensive’; indeed the information in Campbell itself was held to be obviously private absent any inquiry into whether disclosure would be highly offensive or had had any actual impact on Campbell.28 In any case, the ‘highly offensive’ test – which barely features in the post-Campbell jurisprudence – does not implicate an inquiry into whether the claimant in fact was offended or suffered mental distress. Rather the court asks, as one indicium of whether the claimant had a reasonable expectation of privacy in the relevant material, whether a reasonable person in the claimant’s position would likely be highly offended by disclosure of the relevant information.29 As such, as Lord Nicholls said in Campbell, if relevant, questions over actual degree of harm or impact more properly go to questions of proportionality, and thus defences, than to the existence of an expectation of privacy in the first place.30
It is right that the privacy action is and ought to be actionable per se: privacy is a dignitary interest of such importance that one ought to be able to bring a claim in respect of a wrongful interference regardless of whether the interference leaves one worse off. This is one reason why breach of confidence would not be an appropriate vehicle for the protection of privacy. Albeit the condition is contested, and has arguably been so watered down that it is
28 It is important to record that the high threshold of ‘highly offensive’ derives from the United States, where the tests governing the privacy torts have been heavily influenced by the a priori weight given to free expression. The context is very different in the UK, where – following jurisprudence of the European Court of Human Rights (ECtHR) – free expression and privacy are, ceteris paribus, accorded equal normative weight (Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457, [12], [55]). To adopt a ‘highly offensive’ test would afford privacy insufficient protection and strike the law’s balance systematically in favour of free expression. See further JNE Varuhas and NA Moreham, ‘Remedies for Breach of Privacy’, ch 1 of this book, in relation to the importance of local context in analysing the law of privacy.
29 Similarly one might ask how certain conduct would make a reasonable person in the claimant’s position feel in determining whether a reasonable expectation of privacy should be recognised: eg Campbell (n 28) [99]; Murray (n 27) [35]. This differs from inquiring into actual subsequent effects on a given claimant, as such an inquiry can only be answered retrospectively whereas an objective inquiry can be answered prospectively. Further, the objective inquiry controls for overly-sensitive reactions of particular claimants. Of course, it may be that the actual impact on a given claimant carries evidential weight in determining how a reasonable person would be impacted by the disclosure.
30 Campbell (n 28) [22].
meaningless,31 it is the case, as a matter of principle, that the suffering of detriment is a precondition for such a claim.32
Strictness of Liability. Albeit the principles are still being worked out, liability for misuse of private information seems to be towards the stricter end of the spectrum, in common with other vindicatory actions. However, this is not immediately obvious. The reason is because every such claim begins with an inquiry into whether a reasonable expectation of privacy exists, and this inquiry can implicate a range of considerations, including the type of information obtained by the defendant, the place in which the defendant’s challenged conduct occurred, characteristics of the claimant, such as whether he or she is a child, and actions taken by the claimant, such as steps taken to keep out prying eyes. This indicates that there may be significant hurdles over which a claimant may have to leap before establishing a prima facie breach of his or her legal right. This stands in contrast to, for example, a claim in trespass to land, where as soon as the claimant can show that the defendant entered the claimant’s land through a not involuntary act, the defendant is prima facie liable.
However, this difference does not necessarily demonstrate that liability in misuse of private information is not strict, or at least relatively strict. The reason is that the inquiry into whether there is a reasonable expectation of privacy in the relevant information is an inquiry into whether the claimant had a right that that information be maintained as private. In other words, the reasonable expectation inquiry is an inquiry into whether the claimant had a privacy right in the first place, and the scope and extent of that right. Once the court concludes that there was a reasonable expectation of privacy then the defendant may be liable for acting inconsistently with that expectation, even if there was no malice or disclosure was the result of a simple error; the defendant did not grasp that the information was sensitive; the defendant acted out of a genuine concern for the claimant’s best interests and/or in good faith;33 the claimant had no idea his or her privacy interests were being interfered with;34 the defendant simply repeated known facts;35 or the defendant strove to ensure that the claimant’s privacy was protected but failed (eg digitalising someone’s face in an image but not doing it well
31 See the suggestion in Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109, 270 (and see 281–
82) that a loss of friends may suffice to fulfil this requirement.
32 Coco v AN Clark (Engineers) Ltd [1968] FSR 415, 421.
33 eg, Campbell (n 28) [166] (‘the motives of the respondents in publishing the information, which they claim to have done to give a sympathetic treatment to the subject do not constitute a defence, if the publication ... revealed confidential material’).
34 As may be the case with phone hacking (Gulati (n 26)) or covert photos of a young child (AAA (n 23)).
35 PJS v News Group Newspapers Ltd [2016] UKSC 26; [2016] AC 1081, [26], [32]; JIH v NGN Ltd [2011] EMLR 9, [59].
enough). In this way a ‘misuse’ of private information does not necessarily connote a blameworthy act (in the same way that the concept of ‘wilful default’ in equity does not necessarily connote blame, despite first appearances).
The case law is not entirely clear on the mens rea element required - the law is still in a developmental phase - though the law of privacy in this regard does not appear to be any less strict than the approach taken in other vindicatory actions.
It is clear that there is no need for the claimant to prove that the defendant intended to inflict loss or harm upon the claimant through the disclosure of information or other invasion of privacy, in common with other vindicatory actions. It also seems relatively clear that a defendant may be liable even if they did not intend a disclosure. In the case of TLT, the Court held disclosure of private information by mere error or carelessness to be wrongful.36 In that case the Home Office, by mistake and unintentionally, uploaded private information concerning applicants for asylum and leave to remain to the UK Border Agency website. Claims for misuse of private information were proven and substantial damages awarded. Lord Mance’s statements of principle in PJS reinforce this approach: ‘any ... disclosure’ of sexual information ‘will on the face of it constitute the tort of invasion of privacy’.37 Such strict approach is consonant with a protective conception of the privacy action: what matters is the fact of invasion of basic interests, not whether the defendant can really be said to be to blame. Where basic rights are at stake the onus ought to be on the defendant to organise his or her conduct and take steps so as to avoid trespassing upon those rights, especially where he or she controls sensitive information relating to the claimant.
Some cases suggest that the defendant’s knowledge is relevant, specifically whether the defendant knew the information accessed or disclosed was private or not. For example, in Imerman a key step in the Court’s reasoning in finding that the defendant had breached the claimant’s privacy by accessing the claimant’s electronic documents, was that the defendant knew that the claimant reasonably expected his documents to be private.38 However, even if knowledge is an element, it would seem from the emergent jurisprudence that the law will not typically insist on actual knowledge.39 To insist on subjective knowledge would seriously weaken the protection of privacy (as well as raise potentially serious difficulties of proof for
36 TLT v Secretary of State for the Home Department [2016] EWHC 2217.
37 PJS (n 35) [32]
38 Imerman (n 25) [68].
39 See, eg, Campbell (n 28) [134].
the claimant). Thus, many important categories of private information, such as medical, financial and sexual information, are in general considered to be ‘obviously’ private – as was clearly established in Campbell – so that any claim in respect of such information would not depend on what the defendant actually knew. Thus, if knowledge is indeed an element of the action then in this class of case the defendant shall be fixed with knowledge, and if the defendant discloses he or she shall be liable, even if the disclosure was the result of simple error.40 As such, liability in these cases is very strict, as is apt where interests in highly sensitive information are at stake, and consonant with the approach in other vindicatory actions: the focus is on maintaining the claimant’s basic interests inviolate, not on the defendant’s blameworthiness.
Further, it would seem that even outside categories of case in which the information is ‘obviously’ private, the courts may find liability where the defendant did not subjectively believe or recognise that the information was private, on the basis that the court nonetheless considers there was, following an all-things-considered analysis, a reasonable expectation of privacy in the information disclosed by the defendant. It may be that knowledge is an element in such cases, but that the courts readily fix the defendant with constructive knowledge – that is, where a reasonable expectation of privacy is held to arise, then the defendant will be assumed to have recognised the private quality of the information (albeit it is then difficult to distinguish such cases from the ‘obvious’ category of cases, the only difference being that in the ‘obvious’ cases no detailed multi-factor inquiry into the existence of a reasonable expectation of privacy is conducted). It is worth noting, however, that such approach does not necessarily render the defendant’s actual knowledge irrelevant. What the defendant knew, and especially whether he or she knew that the claimant would not consent to the capture of the relevant information, may be one factor (among many) that goes to whether there was a reasonable expectation of privacy in the information in the first place. Thus, if the defendant subjectively knew the claimant would not consent to the taking of given photos, this may make it more likely that a court will conclude that the claimant had a reasonable expectation of privacy in the photos.41 Importantly, such approach is conceptually distinct from requiring, as a prerequisite to liability, that the claimant prove that the defendant subjectively recognised the private quality of the information.
40 See TLT (n 36).
41 Murray (n 27) [57]; Weller (CA) (n 23) [35], [63].
Thus, even if knowledge is an independent element – which is not entirely clear from the jurisprudence – it will often be assumed, and certainly where sensitive information is at stake. In combination with a strict approach to disclosure of information, overall the liability criteria for breach of privacy are relatively strict, in common with other protective, vindicatory actions constituted to protect basic interests.
Defences. Once the claimant has established a reasonable expectation of privacy and a breach of that expectation, the onus lies on the defendant to justify his or her act. In this way the basic structure of the privacy action matches that for the vindicatory torts; any interference calls for justification given the importance of the claimant’s interests, and if the defendant has no good reason for his or her actions then he or she shall be liable. Only the most important concerns will be sufficient to justify an invasion of privacy, such as prevention and investigation of crime or national security. Commercial interests of newspapers, for example, do not carry much currency.42 Consonant with the approach in human rights law, which has inspired the privacy action, justifications will be construed narrowly. Further, public interest justifications will be subject to the strict conditions of the proportionality test;43 for example, even if the defendant can show that the interference with the claimant’s privacy was genuinely motivated by a legitimate public interest in protecting national security, the defendant will need to show in addition that the interference was the least necessary to safeguard that public interest and that there was more general proportionality between means and ends. Again in common with human rights law, where purported justifications advanced by the defendant are premised on factual claims, evidence will be required to substantiate those claims, and the defendant’s failure to establish relevant facts will lead to the defence failing.44 Another justification often raised, especially in cases of press intrusion, is preservation of the basic rights of another, specifically freedom of expression. Of course even assertion of another fundamental right, freedom of expression, is insufficient in itself. In general there will need to be a real public interest in giving publicity to the private information before a disclosure can be justified. And for information of a particularly personal nature, such as medical information, financial information, information about sexual activity or information about a child,45 it would seem that only an exceptionally strong real and legitimate public interest in release of the information
42 McKennitt v Ash [2008] QB 73, [66]. Albeit they may be relevant: eg Campbell (n 28) [77], [143].
43 eg, Campbell (n 28) [138]–[141].
44 See, eg, Goodwin v News Groups Newspapers [2011] EWHC 1437; [2011] EMLR 27, [134], [135], [137], [139].
45 PJS (n 35) [36]; AAA (n 23); Weller (n 23).
could justify accessing or disclosure of such information.46 For example, in PJS it was observed that ‘there is not, without more, any public interest in a legal sense in the disclosure or publication of purely private sexual encounters, even though they involve adultery or more than one person at the same time’.47 And even if it is legitimate to disclose such sensitive information, because there is a real public interest, it will only be justifiable to publish the least information necessary so as to satisfy the public interests at stake; for example, even where publication of the fact of a sexual affair is in principle justified, publication of the salacious details of the affair or the identity of the other party to the affair may well not be.48
From breach of confidence to a vindicatory action. Other features of the jurisprudence reinforce the protectionist concern that underpins the recognition of privacy rights. In particular whereas breach of confidence was the original vehicle for developing the action for misuse of private information, as the jurisprudence has evolved the courts have gradually uncoupled the action from breach of confidence, and in doing so recalibrated features of the action to more closely resemble those of vindicatory torts. This process is of some importance, as it goes to proper classification of the action, but also because core features of the equitable action for breach of confidence, which have now been shed, would otherwise operate to impede full protection of privacy.
As the courts have emphasised, the privacy claim affords wider protection than the classic action for breach of confidence, in that information that is in the public domain may still remain private whereas confidence in it may be lost.49 Importantly, as the courts have again emphasised, the privacy action is not, unlike breach of confidence, concerned only with maintaining secrets, while confidence has more generally developed principally in a commercial context – that of trade secrets – which in turn has fundamentally shaped its character. The concern within the privacy action is a wider one, which encompasses protection of individual dignity and autonomy from interference, something against which breach of confidence is not set up to protect given its narrower focus on information and its disclosure;50
46 In this regard early statements, made at a time when the law of privacy was in its developmental phase, that countervailing rights of publishers will very often be expected to prevail, were too broad and have been superseded by subsequent developments: Campbell (n 28) [137].
47 PJS (n 35) [32].
48 See Goodwin (n 44); Campbell (n 28) [60].
49 OBG Ltd v Allan [2007] UKHL 21; [2008] 1 AC 1, [255] (noting also that, eg, a trade secret may be confidential but not private);
PJS (n 35) [25], [57].
50 CTB v NGN Ltd [2011] EWHC 1326, [23]; [2011] EWHC 1334, [3]; PJS (n 35).
‘the concepts of confidence and privacy are not the same and protect different interests’.51 This recognition as the jurisprudence has matured also reinforces that the privacy claim increasingly resembles the vindicatory torts, in that the concern is to protect basic interests from outside interference:
What a concept of privacy does ... is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives.52
Furthermore, obligations of confidence have often depended on a pre-existing relationship, whereas privacy, as a recognised human right, is of such importance that its protection ought not to depend on whether such a relationship can be demonstrated; to inquire into the existence of a relationship would ‘distort[]’ outcomes,53 while the damage done by giving publicity to intimate facts may be no less because information has been sourced in the absence of a pre- existing relationship.54 On the other hand, to continue to stretch breach of confidence so as afford sufficient protection to privacy will be to introduce incoherence into that action and warp its application in traditional fields, including trade secrets and employment.55
As long as the privacy action remained hitched to breach of confidence it could not evolve to protect types of privacy other than informational privacy. But in order to comply fully with the European Convention on Human Rights (ECHR), it seems inevitable that the action will have to evolve to embrace all types of privacy protected by Article 8, these types of privacy going well beyond informational privacy.56 Indeed, the courts have routinely observed that the action has absorbed Article 8;57 and it follows naturally from this that courts have explicitly begun to hold that intrusion upon privacy, absent any misuse of information, is actionable under the domestic privacy action. In Goodwin, Tugendhat J explicitly recognised
51 Vidal-Hall v Google Inc [2015] EWCA Civ 311; [2015] 3 WLR 409, [21]; OBG (n 49) [255] (‘two distinct causes of action, protecting two different interests: privacy, and secret (“confidential”) information’). See also Hosking (n 22) [48], [246].
52 Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] QB 967, [126].
53 McKennitt (n 42) [8], [15]; Campbell (n 28) [12]–[14].
54 Hosking (n 22) [109].
55 ibid [46], [49].
56 Campbell (n 28) [15] (‘An individual’s privacy can be invaded in ways not involving publication of information. Strip searches are an example. The extent to which the common law as developed thus far in this country protects of forms of invasion of privacy is not a matter arising in this case’). Cf Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406.
57 eg, Imerman (n 25) [65]; A v B Plc [2002] EWCA Civ 337; [2003] QB 195, [4]; McKennitt (n 42) [11]; Campbell (n 28) [17].
that ‘[t]he right to respect for private life embraces more than one concept’, ruling in that case that while the relevant disclosure would not constitute a misuse of private information, it would constitute wrongful intrusion upon private life more generally.58 In Imerman it was held that merely accessing or retaining information may be wrongful.59 This was reinforced by the decision in Gulati, which held that accessing phone messages was in itself wrongful, notwithstanding whether the information obtained was disclosed.60 However, in Imerman, the Court nonetheless maintained that the privacy action remained of the confidence ‘genus’.61 But as the breadth of protection invariably expands to ensure compliance with Article 8, the conceptual integrity of this categorisation will be stretched to breaking point, or the categorisation will simply be rendered meaningless.62 As such, it is unsurprising that since the decision in Imerman in 2011, the overwhelming trend has been for courts to classify the action as a tort.63
Lastly, whereas in breach of confidence the focus is upon the obligations of confidence owed by the defendant and considerations of conscience, within a vindicatory action the focus is upon the interests of the claimant and their protection from outside interference. As Lord Hoffmann said in Campbell, the focus is not on duties of good faith applicable to confidential information but on protection of human autonomy and dignity; thus the starting point is whether the claimant had a right to privacy in relevant information rather than an inquiry into whether the defendant ought to be held to have owed duties of confidence or the character of the defendant’s conduct.64 It follows from this, for example, that while actual knowledge has been an important aspect of the law of confidence (especially in cases outside those involving a pre-existing relationship) – as it marks the engagement of the defendant’s conscience and justifies imposition of equitable duties – the defendant’s actual state of mind is likely to be of less prominence within the developing law of privacy, which seeks to mark out a zone of protection within which basic interests ought to be maintained inviolate, regardless of
58 Goodwin (n 44) [85] et seq. And see also PJS (n 35) [58]–[60].
59 Imerman (n 25).
60 Gulati (n 26).
61 Imerman (n 25) [67].
62 As Gault P and Blanchard J observed in the New Zealand Court of Appeal decision in Hosking, as long as protection of privacy is tied to breach of confidence, ‘the United Kingdom courts will increasingly have difficulty reconciling decisions with Human Rights Act obligations’ (Hosking (n 22) [40]).
63 eg, Vidal-Hall (n 51); Burrell v Clifford [2016] EWHC 294; [2017] EMLR 2, [149]. And see Campbell (n 28) [14]; McKennitt (n
42) [8].
64 Hosking (n 22) [2], [42], [246].
considerations of conscience. The logic of this proposition is evidenced by a ready willingness to impute knowledge in the developing law of privacy, and the less prominent role of knowledge within privacy cases more generally.65
Thus the trajectory of legal development suggests the action is one concerned to protect and vindicate basic interests. This is reinforced by judicial statements to this effect. The courts have emphasised that ‘[p]rivacy is a fundamental right’66 and that it ‘lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual’.67 The law of privacy is concerned ‘to protect such matters as personal dignity, autonomy and integrity’.68 Privacy is a recognised human right, and the emergence of the action for misuse of private information was a direct response to the requirement in human rights law that respect for privacy requires that privacy interests be protected from interference by private parties.69 Vindication or the reinforcement of the importance of the interest in the face of interference has similarly been emphasised by courts, especially – as we shall see – in determinations as to remedies.70
C. Compensatory Damages for Breach of Privacy
There are thus strong similarities between the privacy action and longer-established vindicatory torts. In this regard the emergence of the privacy action might be accurately explained as an updating of the vindicatory torts, the new cause of action emerging so as to protect an interest that society today recognises as being of fundamental importance. Given that vindicatory torts and the action for misuse of private information protect similarly basic interests and perform similar functions, as evidenced by their very similar legal structures, there is a powerful argument that the approach to damages ought to analogous. Such a vindicatory approach to damages would give effect to the action’s underlying policies at the remedial stage.
65 See discussion at nn 38 et seq above. Of course there are increasingly indications that in at least some classes of case, an objective approach may be taken within breach of confidence itself. See the discussion in B McDonald, ‘Privacy Claims: Transformation, Fault, and the Public Interest Defence’ in A Dyson et al (eds), Defences in Tort (Oxford, Hart Publishing, 2015) 297–303.
66 Gulati (CA) (n 26) [46].
67 Campbell (n 28) [12].
68 Mosley v NGN Ltd [2008] EWHC 1777; [2008] EMLR 20, [214].
69 eg, Von Hannover v Germany [2005] ECHR 555; (2006) 43 EHRR 7.
70 Mosley (n 68) [216]–[217].
It is therefore unsurprising that the damages jurisprudence has over time come to embrace an approach to compensatory damages identical to the vindicatory approach within torts actionable per se. We can trace the seeds of this approach back to Lord Hoffmann’s speech in Campbell: ‘An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate’.71 In other words, the claimant suffers damage by the fact of interference with an interest that ought to be maintained inviolate. In the 2008 decision of Mosley, Eady J invoked an idea of vindication similar to that elaborated herein.72 He indicated that damages could be awarded for the interference in itself, arguing that to award only nominal damages for an interference with so basic a right would be inadequate. Put another way, damages ought to be awarded for the interference with the right in itself, in part so as to reflect and reinforce the importance of the right. The idea that quantum is a symbolic marker of the importance of the protected interest is arguably evidenced in the more general and deliberate uplift in damages awarded for breach of privacy, which can be traced through the case law and which has brought sums more into line with other vindicatory actions such as defamation. In the 2011 decision of Cooper, Tugendhat J awarded £30,000 for a breach of privacy, this sum not apparently including any portion for consequential loss; he said that the sum would have been £40,000 if distress had been taken into account (distress had been compensated by a separate award for defamation).73 In AAA,
£15,000 was awarded to a very young child who had been covertly photographed. The child had no appreciation of the breach, and thus could not be said to have suffered any consequential losses such as distress. The award could only therefore be for the privacy interference in itself, and this is reinforced by the Judge’s express statements that the award should reflect that the claimant’s rights were breached ‘and serve as notice, both as to the present and the future as to how seriously the court regards infringement of a child’s rights’.74 Put another way, the award for the wrong in itself vindicates the right, in the sense of reinforcing and affirming that privacy rights ought to be respected and maintained inviolate. In Weller, awards were made to three children, whose pictures had been published by a newspaper in breach of their privacy.75 Two
71 Campbell (n 28) [75], quoting R v Broadcasting Standards Commission, ex parte BBC [2000] EWCA 59; [2001] QB 885, 900.
72 Mosley (n 68) [216]–[217].
73 Cooper v Turrell [2011] EWHC 3269, [107] (QB).
74 AAA (n 23) [127]. See similarly Burrell (n 63) [163].
75 Weller (QB) (n 23) [189]–[197]. Appeal dismissed: Weller (CA) (n 23).
of the children received substantial awards of £2,500 each, despite not having suffered any distress – in contrast to the third child, whose award was explicitly uplifted as he had experienced feelings of embarrassment – suggesting the awards were for the breach of privacy in itself. This is further reinforced by the ‘objective’ nature of the factors that guided the Court in setting awards, which go more to assessing the seriousness of the wrong rather than gauging actual losses suffered. These included the degree of intrusion, what the photos showed, the extent of publication and how long the article was online.
The explicit embrace of the vindicatory model came in Justice Mann’s magisterial judgment in Gulati, upheld by the Court of Appeal (permission to appeal to the Supreme Court refused). Justice Mann held that damages may be awarded to ‘reflect infringements of the right itself’, regardless of the suffering of consequential loss: ‘The absence of distress does not mean that there was any less an invasion of privacy ... If there was an invasion of a right then prima facie there ought to be a remedy.’76 Mann J employs similar reasoning to that of Eady J in Mosley, saying that a failure to afford damages simply because distress was not suffered would render the rights ‘illusory’, at least to a significant degree.77 He makes a point of the utmost importance when he says:78
The tort is not a right to be prevented from upset in a particular way. It is a right to have one’s privacy respected. Misappropriating (misuing) private information without causing ‘upset’ is still a wrong. I fail to see why it should not, of itself, attract damages. Otherwise the right becomes empty.
The law of privacy is first and foremost constituted to protect the interest in privacy. It is therefore damages for damage to that interest that ought to be the first head of loss recognised by the law. It would make little sense for the law to afford compensation for consequential losses parasitic on the wrong, but not damage to the interest that is the very object of the law’s protection. If the law’s principal concern was to prevent consequential loss then consequential loss would be a prerequisite to bringing the claim, as it is in negligence. The right would not be a right in respect of privacy but a right not to be caused harm through interference with privacy. That is not the law: the action is actionable per se.
76 Gulati (Ch) (n 26) [115].
77 ibid [113].
Justice Mann explicitly stated that such damages are compensatory in nature, confirming the normative loss thesis. These normative damages are, as in vindicatory torts, to be assessed objectively, with quantum varying with the seriousness or extent of the interference with privacy and not with the subjective effects suffered by the claimant, which is the province of consequential loss. This helps to explain why it was defensible as a matter of principle for Mann J to adopt a tariff of £10,000 per year for serious violations by phone hacking (the approach makes sense as a matter of practice as it will facilitate settlements). Ceteris paribus, every victim of phone hacking suffers a basic level of interference with his or her privacy interest of the same extent or seriousness. The extent of the interference can of course be aggravated, so that the seriousness of the interference may be worse in one case relative to others; for example, where the information accessed is highly sensitive medical information, damages will rise significantly above the tariff, in contrast to a case where the phone messages contained fairly anodyne information.79 One might respond that this is unfair on the defendant, who may have no idea in advance what type of information he or she will find. But this is the wrong perspective: damages compensate for the degree of interference with the claimant’s privacy interests, and it is simply the case that they suffer a greater infringement when a defendant accesses information that is highly sensitive. Furthermore, it hardly lies in the mouth of someone who engages in phone hacking to complain.
Thus, quantum is assessed objectively. In cases of false imprisonment, damages for the interference with liberty in itself vary according to, inter alia, the duration of the imprisonment and the extent of the confinement. In trespass to land, user damages, for the interference with the interest in exclusive possession of land, are assessed according to, inter alia, the duration of the use and amount of land used. These considerations are indicia of the extent or seriousness of the violation. Damages for normative damage to privacy interests will vary according to similar considerations; as the Court put it in the post-Gulati case of Burrell, damages for normative damage respond to the ‘degree of intrusion’.80 I suggest that such damages should vary according to considerations similar to those that go to the existence of an expectation of privacy in the first place:81
Where the violation entails the taking of information, the nature of that information will be material: ceteris paribus damages should be higher where the violation entails unauthorised taking of intimate pictures versus unauthorised accessing of the claimant’s order history on the
79 ibid [229].
80 Burrell (n 63) [162].
81 Varuhas, Damages and Human Rights (n 2) 132.
Star Wars online store. Extent of publication will be relevant: if the defendant publishes the information in a national newspaper, the interference shall be far more serious than if they publish it to no one. Location may be pertinent: installing a camera in the claimant’s family home, and recording them, is likely to entail a far more serious interference with privacy, than recording someone on a public street. Duration shall also bear on quantum: ceteris paribus, damages should be higher where the defendant bugs my house for four months relative to where they bug my house for two weeks. The more times a violation is repeated – for example if there have been multiple instances of wrongful accessing of private information – the greater the award should be.
Mann J took an approach on all fours with this. In setting quantum he considered, for example, the nature of the information accessed, whether it was disclosed, and the length, degree and frequency of the interferences by hacking. In other cases the extent of the disclosure has also been considered as one factor indicating a more or less serious breach, as well as how long the information was made available.82 In Burrell, Spearman QC, sitting as a Deputy Judge of the High Court, explicitly stated that those factors relevant to determining the existence of an expectation of privacy could be relevant to damages.83
In setting quantum of damages for both normative damage and consequential non- pecuniary loss courts have, ‘while making all due allowances for the different facts of each particular case’, also sought guidance from past awards made for breach of privacy so as to ‘strive for a measure of consistency’.84 For example in assessing normative damage in a given case the court will compare the seriousness of violations in past cases with the case before them so that the awards across the different cases broadly cohere with one another. In looking to past cases it is however important to bear in mind Mann J’s observation in Gulati that awards for breach of privacy have increased over time, as earlier awards were acknowledged to be too low, so that awards made early in the development of the privacy action may not be a safe guide as to quantum today.85 Courts have also, in assessing damages for breach of privacy, considered scales applied in the context of other fields of tortious liability, including defamation, personal injury and anti-discrimination law, where detailed guidance and
82 Burrell (n 63) [138] (‘the extent of the misuse should be a relevant factor when assessing compensation for the wrong itself – because disclosure to the world at large involves a greater loss of control than a disclosure to, for example, a small number of journalists’); Weller (QB) (n 23) [196].
83 Burrell (n 63) [139].
84 See ibid [162].
85 Gulati (Ch) (n 26) [184](i). Note also that while the Simmons v Castle [2012] EWCA Civ 1039; [2013] 1 WLR 1239 10% uplift was not applied in Gulati, it seems from the reasoning therein that the uplift may apply to awards for non-pecuniary loss in future privacy cases: see Gulati (Ch) (n 26) [160]-[166].
guidelines as to quantum have been developed.86 Albeit in Gulati Justice Mann advised caution in reading across scales from other fields, as there is a risk of passing over the distinctive nature of the privacy action.87 For example awards for non-pecuniary loss in anti-discrimination torts do not include a component for normative damage for the interference in itself, awards being limited to factual losses such as distress.88 However, Mann J did not consider scales in other liability contexts to be irrelevant: while the approach to quantum in other fields cannot be transposed directly into privacy cases, awards made in other contexts such as personal injury can provide ‘a sort of sanity check on amounts which are proposed’.89 A similar approach has been adopted in other areas such as defamation; courts will consider (or instruct juries to take notice of) the levels of awards in personal injury cases in quantifying general damages, so as to facilitate coherence and consistency across the law, though there is no exact relationship or precise correlation between awards made in each field.90
In contrast to the objective approach to normative damages, consequential factual losses depend on the subjective effects of the wrong on the individual claimant: ‘A thinner-skinned individual may be caused more upset, and therefore receive more compensation, than a thicker- skinned individual’.91 These losses have to be proven, and factual causation established. In contrast to the position in respect of normative damage, which is inherent in and inseparable from a violation, rules of remoteness will likely apply to limit recovery of consequential losses for breach of privacy. The question is what the approach to remoteness ought to be. Within actions for which loss is the gist, such as negligence, recovery is in general limited to those losses that are reasonably foreseeable. However, it is strongly arguable that such a limit does not apply for those torts actionable per se that protect basic interests. Rather, the preponderance of authority indicates that the defendant shall be liable for all factual losses that are a direct and natural consequence of his or her wrongful actions; this test clearly applies where the wrong is
86 Mosley (n 68) [212]-[231]; Cooper (n 73) [102]-[107]; WXY v Gewanter [2013] EWHC 589, [25] et seq; TLT
(n 36) [11].
87 Gulati (Ch) (n 26) [185]-[202].
88 Ibid [189]-[190].
89 Ibid [202]. This approach was echoed by the Court of Appeal: Gulati (CA) (n 26) [60] et seq.
90 John v MGN Ltd [1997] QB 586, 612-616; Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 WLR 1015, [25]; Gulati (CA) (n 26) [61]-
[62].
91 Gulati (Ch) (n 26) [229](viii); Burrell (n 63) [140], [159].
intentional and arguably holds as a more general proposition in the context of certain vindicatory actions.92 The courts have so far not given detailed consideration to the remoteness rules that apply to the emergent privacy action. However, given the evolving nature of the privacy action courts are likely to follow the approach taken within other vindicatory actions, such as the torts actionable per se. Such approach has been applied by analogy to newer actions also constituted to protect basic interests, such as statutory anti-discrimination torts.93 This approach to remoteness furthers the protective aims of vindicatory actions by holding a defendant liable for all losses flowing directly from the wrong, whether those consequences were reasonably foreseeable or not. That courts have regularly awarded damages for various types of factual loss for breach of privacy without any inquiry into or mention of reasonable foreseeability in itself strongly suggests the absence of such a limit. The vast majority of awards for consequential loss have been for distress, but awards have also for example been made for recognised psychiatric illness.94 One would expect damages for consequential pecuniary losses to be recoverable on an analogy with other vindicatory actions; in contrast to non-pecuniary losses, which are ‘at large’, economic losses would need to be specifically pleaded. Aggravated damages are available for breach of privacy, in common with other vindicatory actions, and have been regularly awarded where the defendant’s conduct is such as to injure the claimant’s proper feelings of dignity and pride, including the defendant’s conduct of proceedings.95
It is worth noting that in Burrell, Spearman DHCJ indicated his concern that the application of the egg-shell skull rule in regard to non-pecuniary loss may result in claimant A, who is unusually sensitive, receiving a higher award for an objectively less serious infringement of privacy than claimant B, who is not unusually sensitive but suffers a more serious infringement.96 That there could be such disparity would seem unlikely (as Spearman DHCJ appears to acknowledge) given that awards for mere distress – which would comprise the majority of A’s award – are typically modest, whereas one would expect claimant B to
92 Varuhas, Damages and Human Rights (n 2) 72; J Edelman, McGregor on Damages, 20th edn (London, Sweet
& Maxwell, 2018) [8 -012]-[8-013], [8-050], [8-062]. See Harnett v Bond [1925] AC 669, 681-682; Kuwait (n 7)
[99]-[104]; Quinn v Leathem [1901] AC 495, 537; Jones v Ruth [2012] 1 WLR 1495, especially [32]; Essa v Laing
[2004] EWCA Civ 2; [2004] ICR 746, especially [38]-[39], [48] et seq.
93 Essa ibid.
94 See, eg, TLT (n 36).
95 See, eg, Campbell (n 28); Gulati (Ch) (n 26). Albeit a separate award of aggravated damages was not made in Burrell, interestingly Spearman DHCJ considered the fact that the breach had occurred in the context of a relationship of trust was a factor that would aggravate distress: (n 63) [160].
96 Burrell (n 63) [142].
receive a significant award for a serious invasion of his privacy, whether or not he suffers distress, as the awards in cases of serious violation, such as Gulati, indicate. Indeed, the outcome in Burrell itself illustrates this point. A relatively modest award of £5,000 was made for an objectively less serious invasion of privacy but which caused significant distress to the claimant, who was particularly sensitive; as was noted in the decision, this was well below the
£10,000 starting-point set by Mann J for serious cases of phone hacking, and far below any of the awards made in Gulati, which involved objectively very serious and sustained invasions of privacy. In any case, even if the type of disparity identified by Spearman DHCJ did arise, this simply follows from a compensatory approach: one receives damages in proportion to one’s losses, otherwise one will be undercompensated. But perhaps what we ought to take from Spearman DHCJ’s judgment is a reinforcement of the point made in section II.C.i above, that it is the fundamental interest in privacy which the action is principally constituted to protect, rather than insulation from mere upset, and it is right that awards for the interference itself ought to be afforded primacy at the remedies stage, through awards on a higher scale than will be applied to consequential mental distress.
Importantly, in all of the major damages decisions discussed, damages followed as of course from the wrongful interference. There was no suggestion that awards were, for example, discretionary. There was no suggestion that, as some hangover of the action’s origins in breach of confidence, equitable bars to relief applied. Rather, damages appear to be available as of right. This is the correct approach, especially for normative damages. Normative damage is a reflex of the wrong. If an individual suffers a trespass to land, that person ipso facto suffers damage to his or her interest in exclusive possession of land. If an individual is the subject of defamation, that person ipso facto is injured in his or her reputation. Similarly, if an individual suffers a wrongful invasion of privacy that person ipso facto suffers damage to his or her privacy interests and ought to be compensated for that loss. This has been the general approach to damages for breach of basic interests in English law. It is difficult to see a basis for deviating from such approach specifically in the case of privacy. Indeed to do so would be to suggest that privacy is an interest of lesser importance, contrary to judicial statements reiterating its fundamental importance; rather than vindicating the normative importance of privacy interests, this would be to treat privacy rights as second-class rights. Furthermore, it would cut down protection of the right, again contrary to the policy of strong protection that pervades this field.
Even in equity, where it is an available remedy, equitable compensation is generally awarded as of course where a claimant proves loss suffered pursuant to an equitable wrong (such as breach of a fiduciary duty of skill and care), albeit equitable bars are potentially applicable in theory at least.
It is worth observing that the law’s vindicatory policy in this area is also evident in the approach to other remedies. For example, in PJS the Supreme Court maintained an injunction restraining disclosure of private information even though the information was widely available. It is specifically where privacy has been egregiously violated that the courts ought to send a strong message that privacy is a right of fundamental importance and which ought to be respected. As Lord Neuberger said, ‘The courts exist to protect legal rights, even when their protection is difficult or unpopular in some quarters.’97 Consideration of the view of the minority Justice, Lord Toulson, sheds further light on the vindicatory dimensions of the majority’s decision. Lord Toulson, in dissent, would have discharged the injunction on the basis that ‘Once [the information] has become readily available to anyone who wants to know it, it has lost the essence of confidentiality. The court must live in the world as it is and not as it would like it to be.’98 If Lord Toulson’s judgment is based on an acceptance of facts as they are, one might say the majority judgments are based in a commitment to a normative view of how things ought to be. Whereas Lord Toulson’s approach was to face up to the fact that PJS’s privacy had been and was going to continue to be seriously infringed on a large scale, the majority’s approach is consonant with a view that maintains that these are the very circumstances in which, despite the practical limits of the court’s powers, the court can at least send the signal that these are rights of the utmost importance, which ought to be maintained inviolate and for which individuals ought to be able to enlist the aid of the courts.
D. Irrelevance of Strasbourg Practice under Article 41 ECHR
In the Gulati case in the Court of Appeal, Lord Pannick QC, for the defendant, argued that the approach to damages for misuse of private information ought to follow that of the ECtHR in
97 PJS (n 35) [71].
98 ibid [86].
making awards of just satisfaction under Article 41 of the Convention. This submission, if accepted, would have several key implications.99 Awards would be set at scales far lower than domestic tort scales. Awards could be denied in the discretion of the court even where loss had been suffered, 100 a finding of violation being just satisfaction.101 Normative damages would be unavailable, as the ECtHR only awards compensation for consequential losses such as distress. Further, as discussed below, the ECtHR does not award aggravated and exemplary damages.
The Court of Appeal rejected this argument and upheld Mann J’s approach in full. With respect, the Court was right to do so. Elsewhere I have argued in detail why the ECtHR’s approach to just satisfaction is inappropriate for transposition into domestic law.102 Only a brief summary of those arguments is possible here. First, the Article 41 jurisdiction is that of a supranational court that performs a secondary, subsidiary and supervisory role in monitoring member states’ compliance with an international treaty. The jurisprudence of such a court is not a model and is not intended as a model for the remedial practices of domestic courts, which have primary responsibility for remedying rights violations. Rather, remedial practices in domestic law are governed by Article 13, the right to an effective remedy. In contrast, Article 41 is not an article directed to or binding on member states; it is directed inwards to the ECtHR’s own subsidiary remedial jurisdiction. Mann J in Gulati recognised this point, and rejected an approach that focused solely on consequential loss as one that would fail to provide an effective remedy in all cases: ‘a regime in which damages were confined to damages for distress would render the rights (to a degree) “illusory” (to use the word used by the ECtHR) and would, to a degree, fail to provide an effective remedy [as required by Article 13]’.103 Furthermore the ECtHR has itself, in laying down the requirements of Article 13, articulated
99 See further JNE Varuhas, ‘Damages under the Human Rights Act’ in Edelman (n 92) pt V.
100 Notably, discretionary factors applied under the HRA to deny damages have not affected claimants’ entitlement to damages for the action of misuse of private information. For example, under the HRA, disproportion between the costs of litigation and the amount that could be awarded in damages has been a basis for denying awards. However, in Burrell, a privacy claim at common law rather than under the HRA, such factor was held to be irrelevant to the claimant’s ‘entitlement to compensation’ ((n 63) [158]).
101 Albeit a de minimus rule has been recognised within the action for misuse of private information, it would seem the threshold is exceptionally low and easily passed (TLT (n 36) [15]), whereas the ECtHR, and domestic courts under the HRA, have been willing to deny money awards in their discretion for relatively substantial losses on the basis that the loss is not considered ‘sufficiently serious’.
102 Varuhas, Damages and Human Rights (n 2) ch 5.
103 Gulati (Ch) (n 26) [113].
an approach for domestic courts to follow that envisions something akin to damages for normative loss:104
[T]he Court is of the opinion that the domestic courts, as the custodians of individual rights and freedoms, should have felt it their duty to mark their disapproval of the State’s wrongful conduct to the extent of awarding an adequate and sufficient quantum of damages to the applicant, taking into account the fundamental importance of the right of which they had found a breach in the present case, even if they considered that breach to have been an inadvertent rather than an intended consequence of the State’s conduct. As a corollary this would have conveyed the message that the State may not set individual rights and freedoms at nought or circumvent them with impunity.
Second, the ECtHR has itself said that domestic courts are free to and ought to follow their own remedial traditions.105 Thus there is no imperative from Strasbourg that domestic courts follow the Article 41 jurisprudence.
Third, the Strasbourg jurisprudence is riddled with problems: the jurisprudence under Article 41 is characterised by parsimonious and opaque reasoning, and a lack of coherence, consistency, principle and predictability. Under the HRA, where this jurisprudence has been followed domestically, lower court judgments are replete with statements that the court has been unable to divine any tariff or meaningful principles or guidance from the ECtHR jurisprudence. As a result, the domestic case law on damages under the HRA has come to be characterised by many of the problems associated with the supranational jurisprudence.106
In addition to these points, the direction in section 8(4) of the HRA for domestic courts to have regard to the principles applied under Article 41 (to the extent any can be discerned) only applies to damages under the HRA; there is no such requirement to have regard to Article 41 jurisprudence applicable to the action for misuse of private information, which is an action sourced at common law.107 As Arden LJ said in Gulati:
English law has only recently recognised a civil wrong for intrusions of privacy. Initially the law of confidence was expanded by reference to the values to be found in articles 8 and 10 of the Convention. However, an action for breach of confidence did not completely coincide with a right of action for pursuing private information in violation of article 8 ... The court, when
104 Shilbergs v Russia App no 20075/03 (ECtHR First Section, 17 December 2009) [78].
105 Scordino v Italy (No 1) [2006] ECHR 276; (2007) 45 EHRR 7, [188]–[189].
106 See Varuhas, Damages and Human Rights (n 2) ch 5; Varuhas (n 99).
107 In any case, even under the HRA recent lower-court decisions have, notwithstanding s 8(4), indicated a move towards domestic tort principles: Alseran v Ministry of Defence [2017] EWHC 3289, [871] et seq (QB).
making an award for misuse of private information is not proceeding under either section 8 of the Human Rights Act 1998 or article 41 of the Convention.108
The new action may have been inspired by the European Convention jurisprudence under Article 8 but the action is one for breach of duties sourced at common law. As such, the remedial approach must be one that coheres with the approach to damages for similar types of actions in English law, and quantum must be matched to domestic conditions: ‘national courts are intrinsically better able to assess the adequacy of an award in their jurisdiction than an international body ... the conditions of the tort are governed by English law and not the Convention’.109 In subsequent privacy cases courts have cross-checked awards for losses such as mental distress and recognised psychiatric illness against domestic tort comparators in the personal injury context, and stated: ‘damages are to be assessed under English domestic law and not the approach adopted by the Strasbourg court’.110
III. Non-Compensatory Damages
A. Exemplary Damages
On a vindicatory model of remedies, exemplary damages ought to be available for misuse of private information. In Mosley, Eady J ruled them out.111 But in PJS, both Lord Mance and Lord Toulson suggested that Eady J’s decision may not be the last word on the matter.112 Lord Toulson observed that such damages might play a useful role in ‘deter[ring] flagrant breaches of privacy and provid[ing] adequate protection for the person concerned’.113
For some actions, such as the loss-based torts of negligence and misfeasance in public office, exemplary damages have traditionally not been available in principle. As a practical matter, such damages have never been awarded for negligence in England, and the House of Lords observed that exemplary damages will very rarely be available for misfeasance in public
108 Gulati (CA) (n 26) [88]–[89].
109 ibid [89].
110 TLT (n 36) [19] and see [11]. See also text to nn 86-90 above.
111 Mosley (n 68) [172]–[197].
112 PJS (n 35) [42], [92].
113 ibid [92].
office.114 In contrast, for vindicatory actions, exemplary damages have long been available and regularly awarded in cases of egregious wrongdoing. Their availability for such actions reflects the vindicatory and protective functions of these actions. The ‘micro’ goal of exemplary damages is punishment, such damages responding to and sanctioning outrageous wrongdoing. However, on a ‘macro’ level such damages give effect to the law’s vindicatory and protective purposes. First, that significant awards may be made against defendants who egregiously interfere with very basic interests serves to enhance protection of those interests against such conduct. Second, that the civil law takes the exceptional step of punishing such interferences, and in so doing marking the law’s ‘vigorous disapproval’115 of such conduct, signals the importance of the protected interests and reinforces that they must be afforded the utmost respect. Third, that such damages have traditionally been available, and indeed played a significant role for vindicatory actions, but have traditionally not been available for other actions reinforces the importance the law attaches to those interests protected by vindicatory actions.
In principle such awards ought to be available for the privacy action, as that action is informed by the same vindicatory and protective policies that underpin other vindicatory actions for which exemplary damages have long been a recognised remedy. Such awards would afford enhanced protection and a strong reinforcement of the importance of the protected interests and that they ought to be maintained inviolate in the face of an egregious violation, sending a signal that the law will not tolerate such disregard for the most basic of interests. As we shall see below in section III.B.i, such damages can play a particularly important role in cases where the defendant deliberately breaches the claimant’s privacy so as to make a profit. One of Eady J’s reasons for ruling out exemplary damages in Mosley was that it was questionable whether the privacy action is a tort. This issue has now been resolved in the case law in favour of the view that the action is a tort,116 while, as discussed in section II above, the key to making decisions as to remedies is to consider whether particular remedies are consonant with the policies underlying creation of the primary rights. Another core reason given by Eady J for ruling out exemplary damages was that this would be inconsistent with the Article 41 jurisprudence of the ECtHR, which does not recognise exemplary damages.117 With respect,
114 Watkins (n 9) [26], [32], [81].
115 Rowlands v Chief Constable of Merseyside [2007] 1 WLR 1065, [42].
116 Vidal-Hall (n 51).
this argument is not persuasive. First, the action for misuse of private information is a creation of domestic law. It has been informed by Strasbourg jurisprudence but it has been woven into domestic legal traditions. It would be inconsistent for compensatory damages to be approached on the basis of domestic legal thinking, as they have been, but for exemplary damages to be ruled out on the basis of Strasbourg jurisprudence. Similarly, that the Strasbourg jurisprudence does not recognise aggravated damages has not prevented those damages becoming a core aspect of the damages jurisprudence for breach of privacy. Second, as we saw in section II.D, the Article 41 jurisprudence is not a remedial model intended for adoption by domestic courts. As Starmer has argued, the Strasbourg Court’s reluctance to award exemplary damages ‘is in keeping with its role as an international supervisory body’ – ‘domestic courts have a different role’.118 There are further reasons linked to this that explain why the Strasbourg Court has not embraced such damages but which are irrelevant to the domestic context; for example, the Court is cautious not to threaten its own legitimacy by making huge awards against member states and risking a significant political backlash. Third, as already noted, it is Article 13 that governs member states’ remedial responsibilities – not Article 41. Under Article 13, the Strasbourg Court has made clear that domestic courts are free to develop remedial jurisprudence according to domestic traditions, and exemplary damages have long been an important aspect of the English law of damages. The one important limit that Strasbourg jurisprudence does impose on exemplary damages is that quantum should not be so large as to constitute a disproportionate interference with freedom of expression.119 But this recognition that exemplary damages should not be disproportionate in itself involves an acceptance by the Strasbourg court that it is permissible for domestic courts to award exemplary damages. This tells against Eady J’s view that adoption of exemplary damages at all would be disproportionate and at odds with the Convention framework.120
B. Gain-Based Relief
Let us first consider a truly gain-based remedy, an account of profits, and then go on to consider reasonable fee damages, which restitution theorists claim are restitutionary, but which are properly analysed as compensatory for normative damage.
118 K Starmer, European Human Rights Law (London, LAG, 1999) [2.46]–[2.47].
119 Tolstoy Miloslavsky v UK [1995] ECHR 25; (1995) 20 EHRR 442; Steel and Morris v UK [2005] ECHR 103; (2005) 41 EHRR 22.
120 Mosley (n 68) [197].
In PJS, Lord Mance left open the question of whether an account of profits is available for the action for misuse of private information.121 In my view such an award should not be available, or if it is to be made available, it ought to be available only exceptionally.122 Such awards have been made in equity specifically in the context of pre-existing legal relationships. For example, such awards are available for breach of fiduciary duties. It makes sense that awards are available in the context of a fiduciary relationship. The fiduciary is required to act for the principal’s interests, so the law holds that if the fiduciary deviates from this course, abusing his or her position to make a personal profit, the fiduciary ought to be required to put the beneficiary or the fund in a position as if the fiduciary had acted as he or she ought to have acted. If the fiduciary had acted as he or she ought to have, the monies ought to have been earned for the beneficiary’s benefit. Of course such awards may be made for breach of confidence too, and breach of confidence is perhaps more analogous to the action for misuse of private information than a claim that a fiduciary breached the no-conflict rule. However, breach of confidence, at least traditionally, is also commonly based in a pre-existing relationship of confidence, and often one arising in the context of a fiduciary relationship.123 For example where an employee or agent misuses the relevant information, such as trade secrets, for his or her own, rather than the principal’s, purposes.124 Again, logically one can understand why profits made by such misuse should be disgorged to the principal.
Some seek to sever the link between account of profits and equity, and argue that an account of profits – now, reframed in common law terms, ‘disgorgement damages’ – ought to be available for a more diverse range of wrongs, often arguing that there is no reason why the remedy should not be more widely available or could not play a useful role in other fields.125 However, a weakness of such arguments is that they often ignore or place too little weight on the distinctiveness of different types of obligations and different doctrinal contexts. That compensation is the general remedy for vindicatory torts follows from the nature of the obligations, which are quite different from those in fiduciary relationships or relationships of
121 PJS (n 35) [41].
122 See also K Barnett, ‘Gain-Based Relief for Breach of Privacy’, ch 8 in this book.
123 See also Turner’s discussion of the nature of facilitative institutions: PG Turner, ‘Privacy Remedies Viewed Through an Equitable Lens’, ch 11 in this book.
124 Imerman (n 25) [54].
125 See, eg, A Burrows, ‘We Do This at Common Law But That at Equity’ (2002) 22 OJLS 1; Attorney-General v Blake [2000] UKHL 45; [2001] 1 AC 268, 283–84. See also J Edelman, Gain-Based Damages (Oxford, Hart Publishing, 2011).
confidence. The obligation in vindicatory torts is a negative one of non-interference with basic interests, and this applies regardless of any pre-existing relationship, being an obligation imposed by law. It is consonant with a concern for non-interference that awards compensate for the extent of a wrongful interference, and it is consonant with a concern to protect and vindicate the claimant’s interests that damages respond directly to the invasion of those interests. An account of profits could potentially go beyond this, resulting in an award well beyond one required to compensate for the interference. In this way it invites the windfall objection: an award beyond that required to restore the claimant’s rights is a windfall gain for the claimant.
The common premise for arguments for an account is that compensatory damages may not be available or adequate on certain facts, for example where no loss is suffered in a case of a serious wrong. These were the circumstances in the case of Blake, where the House of Lords recognised that an account could be ordered exceptionally for breach of contract.126 But the problem for this argument is that on a vindicatory approach to remedies, it is wholly unlikely that there would ever be a case where compensatory damages (in combination with other remedies) would be inadequate or unavailable, given that such damages are granted as of course for normative damage, regardless of whether the claimant incurred any consequential, material losses. Even in contract the profit-based remedy recognised in Blake is effectively a dead letter, and even on amenable facts the courts have shied away from making such an award.127
These arguments suggest that an account of profits, if it were to be available for vindicatory torts, should be an exceptional remedy, limited to cases where other remedies would be unavailable or inadequate. In other words, it would have a gap-filling role (albeit it is wholly unlikely, or indeed impossible, that a gap could arise). Thus in contract the remedy is available exceptionally and where other remedies are inadequate.128 In tort such an award has not – outside the intellectual property context – been recognised, although the courts have suggested that if it were to be available, it would be so only exceptionally, in cases not involving use of property.129
126 Blake ibid.
127 eg, Experience Hendrix (n 13).
128 Blake (n 125) 285–86.
129 Forsyth-Grant v Allen [2008] EWCA Civ 505, [31], [33]; Devenish (n 12) [88]; Lawrence v Fen Tigers Ltd
[2014] UKSC 13; [2014] AC 822, [131], [248].
However, as has been observed many times, there is a lack of clarity over when a case will be exceptional, which in turn reflects a lack of clarity over the rationale for an account of profits outside of its traditional context of equity. The most common rationale given is that of deterrence. But this rationale is deeply problematic. First, if deterrence is to be the rationale we would need to know whether such awards in fact deter, yet there is little evidence on this, and in any case courts are not well placed to judge when such awards are necessary to alter incentives. Second, because the argument is an instrumentalist one, we would need to know that the benefits of making such remedies available would outweigh any costs. Third, this rationale is completely removed from any doctrinal context, and there is little sensitivity to the discrete normative concerns of distinct fields of law such as contract or vindicatory torts. Protagonists of the wider availability of disgorgement typically offer deterrence as a general justification across torts and contract.
If a rationale is to be identified for the exceptional availability of such relief for misuse of private information, it must lie in the field’s normative concerns and not rest on questionable speculations as to behavioural effects. Elsewhere I have suggested that one possible rationale, in the context of vindicatory actions, is that such awards could afford added protection and serve to strongly vindicate the importance of protected interests and that they ought to be respected, in exceptional circumstances where such added protection and vindication is warranted, and the factual circumstances make stripping profits a rational way of achieving these objectives.130 On this rationale, one exceptional circumstance where such remedy might potentially be made available for vindicatory actions is where fundamental interests are particularly vulnerable to wrongful interference because there are acute financial incentives to commit the wrong, the claimant is a member of a class particularly vulnerable to exploitation and the defendant acted on those incentives thus earning a profit.
However, albeit this rationale might be a principled and defensible one, the practical reality is that such awards are unlikely to be necessary because we already have an established remedy to offer enhanced vindication and protection in such situations: that is, exemplary damages in the second category of Rookes.131 Furthermore, exemplary damages have many advantages over the remedy of an account of profits as a tool for affording heightened protection and vindication in the case of a profit-driven wrongdoer.
130 Varuhas, Damages and Human Rights (n 2) 120–21.
131 Rookes v Barnard [1964] UKHL 1; [1964] AC 1129, 1226–27.
Lord Devlin in Rookes explained that exemplary damages may be available in the following circumstances:132
Where a defendant with a cynical disregard for a plaintiff’s rights has calculated that money to be made out of his wrongdoing will probably exceed the damages at risk, it is necessary for the law to show that it cannot be broken with impunity.
Exemplary damages in this category have several advantages over the remedy of an account of profits. First, these damages can be awarded in response to a cynical profit-motivated wrong even though the defendant does not end up making a profit or makes a very small profit. This is because quantum is not necessarily hitched to the amount of profit in fact made. Second, an account will only offer added protection where the gain sought and made is financial. However, the conception of gain for the purposes of the second category of Rookes is wider than financial profits: ‘This category is not confined to moneymaking in the strict sense.’133 Third, the claimant who suffers a cynical, profit-driven wrong can recover both compensatory and exemplary damages, whereas a claimant would need to elect between compensatory and disgorgement damages. Fourth, gain can be very difficult to calculate, and causation can be hard to prove, especially if profits derived from the wrong are intermingled with other profits. Fifth, in calculating profits a court would make an allowance for the defendant’s skill and expenses, whereas no such discount need be made from exemplary damages.
In addition to exemplary damages other forms of relief may also be utilised to address gains. An injunction may issue to prevent a defendant from using private information to continue to make a profit from distribution of that information. The court could order the defendant to deliver up the information, thus preventing its use.134 In Spelman, Tugendhat J also contemplated the making of an order akin to that made in Blake, preventing the defendant from receiving money in relation to the relevant information.135
Thus, all in all, disgorgement damages do not add anything to orthodox remedies available for vindicatory actions, and they ought not to be available. If they are to be made available,
132 ibid 1226–27.
133 ibid 1227.
134 See the discussion of the line of confidence cases in Imerman, which demonstrate that delivery-up has been an important remedy in this area: (n 25) [54] et seq.
135 Spelman v Express Newspapers [2012] EWHC 355, [118] (QB).
they ought to be an exceptional remedy, and the criteria for their award should be formulated by reference to the normative concerns underpinning creation of privacy rights.
Where a defendant uses the claimant’s land without the claimant’s consent the defendant shall be liable in trespass for user damages, calculated according to the market rate for the use of the land. For nearly their entire history these damages were conceptualised by the courts as compensatory. However, more recently restitution theorists have preyed on the characterisation of such damages as loss-based. They have argued that these damages cannot be compensatory because they are available whether or not the claimant would have, or even could have, leased out his or her land to another person but for the trespass. On this premise they argue that a gain- based analysis – such damages reverse a transfer of value from the claimant to the defendant – should be preferred. It is correct that ‘but for’ analysis does not apply to such damages. But it does not follow from this that they must be characterised as gain-based.136 Rather, the absence of ‘but for’ analysis shows that such damages are not factual damages but normative damages for the wrongful interference with exclusive possession and use of land in and of itself. The courts have explained them as such. In the leading authority of Morris-Garner Lord Reed, giving the lead judgment in the Supreme Court, said that user damages provide compensation for the loss of the right to control use of one’s property that goes with proprietary rights of exclusive possession, this ability to control use of one’s land being conceptualised as a valuable asset in itself; such losses are conceptually distinct from financial losses of a ‘conventional kind’ such as the cost of repair.137 Lord Sumption, in the same case, said the availability of user damages follows from the nature of the right infringed: the law treats the ‘exclusive dominion’ conferred by property rights as having an independent pecuniary value – one might say, a normative value constructed by the law – which is assessed according to the user measure where those rights, and thus one’s interest in exclusive possession, are infringed.138 Morris- Garner built on earlier authority to similar effect. The Privy Council had previously observed that damages are ‘readily awarded at common law for the invasion of rights to tangible moveable or immoveable property’, and acknowledged the availability of ‘compensatory
136 See further Varuhas, ‘Concept of Vindication’ (n 2) 284–89.
137 Morris-Garner (n 1) [25]-[30], [66], [79], [95](1).
138 Ibid [110].
damages which exceed the actual financial loss caused to the claimant by an actionable breach of duty’.139 In trespass loss has a wider meaning than simply being left materially worse off:140
It is an established principle concerning the assessment of damages that a person who has wrongfully used another’s property without causing the latter any pecuniary loss may still be liable to that other for more than nominal damages. In general, he is liable to pay, as damages, a reasonable sum for the wrongful use he has made of the other’s property. The law has reached this conclusion by giving to the concept of loss or damage in such a case a wider meaning than merely financial loss calculated by comparing the property owner’s financial position after the wrongdoing with what it would have been had the wrongdoing never occurred. Furthermore, in such a case it is no answer for the wrongdoer to show that the property owner would probably not have used the property himself had the wrongdoer not done so. In The Mediana [1900] AC 11 , 117, Earl of Halsbury LC made the famous observation that a defendant who had deprived the plaintiff of one of the chairs in his room for 12 months could not diminish the damages by showing that the plaintiff did not usually sit upon that chair or that there were plenty of other chairs in the room.
This modern authority follows on from the line of wayleave cases decided in the latter part of the nineteenth century, and which explicitly conceptualise user damages as compensatory – and explicitly reject gain-based analysis.141 In Morris-Garner Lord Reed, in his leading judgment, authoritatively reasserted this orthodoxy: ‘The courts did not ... adopt a benefits- based approach, but conceived of awards as compensating for loss.’142
In the important High Court of Australia case of Plenty it was held, as a more general proposition applicable beyond user cases, that substantial damages follow a wrongful interference with land whether or not that interference causes material loss:143
True it is that the entry itself caused no damage to the appellant’s land. But the purpose of the action for trespass to land is not merely to compensate the plaintiff for the damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land ... The appellant is entitled to have his right to property vindicated by a substantial award of damages.
139 Pell Frischmann Engineering Ltd v Bow Valley Iran Ltd [2011] 1 WLR 2370, [46], [48].
140 Stoke-on-Trent City Council v W & J Wass Ltd [1988] 1 WLR 1406, 1416. The passage was quoted with approval in Morris-Garner (n 1) [29], [110].
141 Varuhas, Damages and Human Rights (n 2) 55–59.
142 Morris-Garner (n 1) [79].
143 Plenty v Dillon (1991) 171 CLR 635, 654–55.
Such approach reflects the ‘policy of the law’, which is ‘to protect the possession of property and the privacy and security of the occupier’.144 As Arden LJ says in Devenish, ‘there may be no actual loss’ but ‘the law takes the view as a matter of policy that the claimants if they prove their claims are entitled to substantial compensation for the mere invasion of their rights’.145 As the analysis in Morris-Garner shows, this policy aim is effectuated by the law conceptualising exclusive possession and use of land as a thing of value in itself, with the corollary that its infringement involves the suffering of a compensable detriment.
If loss-based explanations are open we need not have recourse to heterodox gain-based analysis.146 Furthermore, the normative damages thesis provides an explanation that coheres with the nature of the cause of action. The concern of trespass is to protect and vindicate the protected interests. It therefore makes sense that the focus of damages would be upon the extent of the interference with those protected interests, rather than on the defendant’s gain.147 There are further problems with gain-based accounts, albeit they cannot be explored here given space constraints.148
Should reasonable fee damages be available for the action for misuse of private information? For example, a reasonable fee could conceivably be applied to assess the normative loss suffered by a claimant where a defendant newspaper makes use of the claimant’s personal information without the claimant’s permission, for instance by publishing the claimant’s private photographs. The fee might be assessed on the basis of the market fee that could have been charged by the claimant for use of those photos. In my view the courts should be reluctant to apply such a measure. Reasonable fee measures are usually applied to assess normative loss where the interests interfered with are proprietary in nature, as we routinely value property interests in market terms. However, where damage is to interests such as those in liberty and physical integrity, not typically measured in market terms, a reasonable fee is not applied. This must partly be because it is unnatural to describe imprisoning someone
144 ibid 647.
145 Devenish (n 12) [36].
146 A point also made by Lord Reed in Morris-Garner (n 1) [66].
147 Contrast unjust enrichment claims, such as a claim for money had and received, where restitution is the logical remedy given that the ‘not-wrong’ (to borrow from Birks) is that the defendant was unjustly enriched at the claimant’s expense: enrichment is the very gist of the action, so that restitution (reversal of a gain) is the apt remedial response.
148 See Varuhas, ‘Concept of Vindication’ (n 2) 284–89.
as involving a use of that person’s liberty.149 But more fundamentally it would be inappropriate to assess damage inherent in being deprived of one’s liberty or pictured at a personal moment according to market value, given that this involves treating basic dignitary interests as interests in tradeable commodities. In this regard it must be recalled that the interest in the photos protected by the privacy action is the claimant’s privacy interest in the photos, not, for example, their intellectual property interests or their commercial interests in confidentiality.150
C. Vindicatory Damages
‘Vindicatory damages’ are a novel head of damages awarded for violations of constitutional or human rights in some jurisdictions. The principles governing such awards ‘are not greatly developed’.151 However, some broad principles are discernible. Such damages are generally awarded only where compensatory damages are considered insufficient to vindicate the right, and an additional award is necessary to mark the sense of public outrage at the violation, the importance of the right and gravity of the violation, and to deter future violations.152 In terms of assessment it has been suggested that awards are ‘conventional’, ‘[a]llowance must be made for the importance of the right and the gravity of the breach’, account taken of the possible deterrence effects of the award153 and quantum no more than necessary to recognise the wrong but not derisory.154
Going by their name, one might expect such damages to be available for vindicatory actions such as the action for misuse of private information. Indeed, in Jones v Tsige the Ontario Court of Appeal recognised a type of ‘symbolic’ award, designed to ‘mark the wrong’ and ‘vindicate rights or symbolize recognition of their infringement’, within cases of breach of privacy by intrusion upon seclusion.155 Nevertheless, the exact conceptual nature of such
149 Though this has not prevented Kantian torts theorists from attempting to explain false imprisonment on the basis of ‘use’: eg A Ripstein, Private Wrongs (Cambridge, MA, Harvard UP, 2016) ch 2. The idea is perplexing.
150 See Lord Hoffmann’s discussion in OBG (n 49) [118]–[124] differentiating the privacy claim from interference with commercial interests. See also Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; [2006] QB 125, [246].
151 Lumba (n 10) [177].
152 Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15; [2006] 1 AC 328, [19]; Subiah v Attorney-General of Trinidad and Tobago [2008] UKPC 47, [11].
153 Lumba (n 10) [178]–[180].
154 Ibid [180].
155 Jones v Tsige 2012 ONCA 32, [75], [87]–[90]. Contrast the approach in Jane Doe 464533 2016 ONSC 541, in the context of the misuse of private information tort, where damages were approached on an orthodox compensatory basis, on an analogy with sexual assault cases.
awards is not clear,156 and such awards must be understood in the light of the distinctive ‘functionalist’ approach to damages for non-pecuniary damage and loss that prevails in Canada (and which does not characterise English law).157 However, notwithstanding the approach in Ontario, in the English case of Lumba the UK Supreme Court held, in the context of a false imprisonment claim, that vindicatory damages are not generally available in tort. With one caveat, the Court was, with respect, right to do so. Two interrelated reasons given by the majority for rejecting such awards are particularly convincing: the purpose of vindication is met by established remedies,158 and vindicatory damages perform similar functions to exemplary damages.159
We have seen that damages are generally available across vindicatory torts for damage to the protected interest, which are proportionate to the seriousness of the interference and take account of the normative importance of the interest. This means no additional award is necessary to address the seriousness/extent of the interference. It is also of the utmost importance to observe here that vindicatory damages are super-compensatory in nature whereas normative damages are compensatory in nature, compensating for the interference with protected interests. Mann J articulated this distinction in Gulati: ‘Damages awarded to reflect the infringement [of the right in itself] are not vindicatory in the sense of Lumba. They are truly compensatory.’160 The Court of Appeal agreed.161
The only remaining functions that a ‘vindicatory’ award could perform would be to express public outrage at the manner of the interference, or deterrence. Indeed, in those constitutional cases where an award has been made, it has been in response to the outrageous
156 Oddly, the factors identified in Jones ((n 155) [87]) as being relevant to assessment of such awards include factors that would be relevant to damages for the wrong in itself (eg the nature and incidence of the wrong), damages for consequential loss (eg effect on the plaintiff’s health and financial position, and any distress suffered), and aggravated and punitive damages (eg conduct of the defendant). As such the award recognised in Jones is not easily classified and does not appear coherent, seemingly being a fusion of conceptually different types of award. It is also unclear why such awards should be capped at C$20,000 for intrusion upon seclusion, as indicated in Jones, when much higher awards are available for other torts and indeed for the public disclosure tort.
157 Though there are questions over the extent to which Canadian law continues to adhere to the functionalist approach: J Berryman, ‘Non-Pecuniary Damages for Personal Injury: A Reflection on the Canadian Experience’ in E Quill and RJ Friel (eds), Damages and Compensation Culture Comparative Perspectives (Oxford, Hart Publishing, 2016).
158 Lumba (n 10) [101], [236], [237].
159 ibid [100], [233], [255].
160 Gulati (Ch) (n 26) [132].
161 Gulati (CA) (n 26) [48]. Similarly the Court of Appeal in Shaw v Kovacs [2017] EWCA Civ 1028 seems to have, with respect, correctly distinguished vindicatory damages from compensatory damages for the infringement of a right (albeit such damages were refused in that case, in the very different context of negligence).
manner of the violation.162 The making of such awards for the privacy action would serve to attest to and reinforce the importance of the protected interests, and therefore give effect to the law’s vindicatory function. However, given that exemplary damages would be available on a vindicatory remedial model, respond to and express outrage at the manner of the violation by punishing the defendant, reinforce the normative importance of protected interests and may theoretically deter future interferences, vindicatory damages are otiose.163 The degree of overlap is recognised in the Caribbean cases on vindicatory damages. Vindicatory and exemplary awards cannot be recovered concurrently for the same wrong; where a vindicatory award is made, ‘the purpose of exemplary damages has largely been achieved’ given the element of deterrence ‘[t]hat a substantial award carries’.164 The overlap was evident in Lumba, where those aspects of the case that convinced the minority that a vindicatory award was warranted were the same features that came close to convincing other Justices to make an exemplary award.165
Thus it is unnecessary to recognise this novel head of damages. However, one important caveat ought to be entered. If the Supreme Court, for example, overrules Gulati and holds that normative damages are not available and only consequential loss is recoverable for breach of privacy, there would be a strong argument for recognising vindicatory damages to fill the gap left by the absence of normative damages, especially in a case where no consequential loss was suffered and thus no damages otherwise payable. The possibility that Gulati might be overruled is not fanciful, given that in Lumba itself the Supreme Court, with respect, mislaid the orthodoxy that substantial damages ought to follow breach of a fundamental right in the context of the paradigm vindicatory tort of false imprisonment.166 However, overall it would be nonsensical to deviate from the orthodox approach to damages for vindicatory actions by rejecting the availability of normative damages, only to have to then again deviate from
162 Merson v Cartwright [2005] UKPC 38; Ramanoop (n 152); see also Graham v Police Service Commission
[2011] UKPC 46, [17].
163 One might argue that vindicatory damages would be more freely available than exemplary damages, which are limited by the Rookes categories. However, vindicatory damages have been developed within constitutional claims against public actors. This category of case roughly maps onto the first category in Rookes; Lumba itself involved claims against officials.
164 Takitota v Attorney-General of The Bahamas [2009] UKPC 11, [15]; Webster v Attorney-General of Trinidad
& Tobago [2011] UKPC 22, [16]; Lumba (n 10) [233]; Ramanoop (n 152) [19].
165 Compare Lumba (n 10) [176], [194] with [165]–[168].
166 For a critique of that judgment and an explanation for why this misturning in the law of damages occurred, see Varuhas, Damages and Human Rights (n 2) 61–67.
orthodoxy to correct for the original departure by recognising the novel head of vindicatory damages.
Furthermore, vindicatory damages are far from a perfect substitute for normative damages. First, such damages are exceptional and discretionary. Second, in most cases where they have been awarded, especially in the Caribbean cases, vindicatory damages have served as a surrogate form of exemplary damages; they do not perform the same function as normative damages, which are available as of course and specifically respond to the damage to the claimant's interests.
Third, very modest awards of vindicatory damages have been contemplated outside of cases of egregious wrongdoing (the exemplary damages type of case), for example where compensatory damages were not available but it was thought important to mark the wrong with an award. Used in this way, are vindicatory damages a substitute for normative damages? No. First, in these cases vindicatory damages remain an exceptional and discretionary remedy. Second, quantum in such cases is exceptionally modest. For example in Lumba, minority Justices would have awarded sums of between £500 and £1,000 in vindicatory damages to mark a two-year period of false imprisonment. If orthodox principles had been followed, a compensatory award for two years of false imprisonment would have been in the tens of thousands of pounds: £500 is a poor substitute. Despite their name, such awards do not vindicate basic interests; they achieve the inverse. Such a measly award trivialises an important interest long afforded strong protection at common law through routine imposition of damages liability. Lords Brown and Rodger, who would have maintained that substantial damages ought to follow wrongful imprisonment, said that to do otherwise would ‘devalue the whole concept of false imprisonment’.167 There is, with respect, inconsonance between Lord Hope’s statements in Lumba that the breach was ‘deplorable’, ‘the right is a valuable one’, vindicatory awards should register the ‘gravity of the breach of the fundamental right’, any award should not be ‘nominal’ or ‘derisory’, and his conclusion that an award of vindicatory damages on the facts should be ‘modest’ and ‘substantially lower’ than £1,000.168 Also problematic is the suggestion that such paltry awards could encourage ‘all concerned to avoid anything like it happening again’.169 If anything is likely to affect a defendant’s behaviour it is unlikely to be such a small sum, especially in a case like Lumba, where there were powerful political
167 Lumba (n 10) [343].
168 ibid [176], [178], [180].
169 ibid [217].
incentives to commit the wrong (those falsely imprisoned were foreign national prisoners) and the evidence tended to suggest that the defendant officials had maintained their course of conduct despite a full appreciation of liability risks.170
IV. Damages in Lieu of an Injunction
Another form of damages that may possibly be awarded in a claim for breach of privacy is damages in lieu of an injunction. Here I am going to consider specifically a situation where (i) there is an ongoing breach of privacy or pattern of breaches; and (ii) a court has jurisdiction to grant an injunction and there are no discretionary bars to granting the injunction. In such a case, albeit the court could and would ordinarily grant an injunction, the court may nonetheless grant damages in substitution of the injunction under the Lord Cairns’ Act jurisdiction. In this section I argue such damages should very rarely be awarded in a case of breach of privacy: the claimant should have an injunction as of course to restrain an ongoing wrong. To understand why this is, it is important to first consider the nature of damages in lieu. Their nature has not always been clear, and clarity has been further muddied by attempts by restitution theorists to explain such damages as gain-based. At this point it will suffice to record Millett LJ’s view that restitutionary explanations are ‘puzzling’, and that courts consistently have analysed such damages as compensatory, including the Supreme Court in its recent decision in Morris- Garner.171 It is to be hoped that in this area at least we may avoid the instability and commercial uncertainty that has been generated in other fields, such as user damages, by restitutionary theories.
Cases concerning damages in lieu have often involved situations where an injunction is sought by the claimant to enforce a restrictive covenant, or to restrain a continuing nuisance or trespass. The defendant argues that damages should be awarded in lieu of the injunction so that the defendant can continue with his or her wrongful activity, albeit for a price. What do damages address in such situations?
The practical effect of granting damages in lieu of an injunction is that the claimant will not be able to enjoy his or her rights, as the courts will refuse to coerce the defendant to discontinue the infringement.172 Thus it has sometimes been said that damages represent
170 ibid [154]–[164].
171 Jaggard v Sawyer [1995] 1 WLR 269, 291; Morris-Garner (n 1).
compensation for an appropriation of the claimant’s rights. In a case of nuisance this would be the claimant’s right against the defendant that the defendant shall not interfere with the enjoyment value of the claimant’s property, or in trespass the right of the claimant against the defendant that the defendant shall not interfere with the claimant’s interest in exclusive possession of land. However, while it is true that the award of damages and concomitant refusal to grant an injunction broadly have similar effects for the claimant as if his or her primary rights had been appropriated, damages do not as a matter of principle involve the defendant in appropriating the claimant’s primary rights.173 For example, in trespass the claimant remains the owner of the land, continues to have a right in exclusive possession and can sue others who trespass – there is, for example, no transfer of title to the defendant, nor is the defendant granted some sort of proprietary interest such as an easement, which the defendant can then sue upon against others. This is why I consider that it is also inaccurate to refer to damages in lieu as ‘release fee’ damages – the defendant is never released from his or her primary duties to the claimant.
All of this is not to say that the practical consequences of refusing an injunction and granting damages in lieu should not be taken seriously – below I argue that these practical effects ought to weigh heavily in our consideration of how freely the courts ought to award damages in substitution of an injunction. Nonetheless, as a matter of principle it is not correct to say that such damages involve an appropriation of the claimant’s primary rights. Thus in Anchor Brewhouse Scott J said, ‘Whether or not an injunction was granted, the defendant’s use of the right of way would, after the judgment as well as before, represent trespass unless and until he were granted a right of way.’174 Millett LJ echoed this analysis in Jaggard:175
[T]he court could not by an award of damages put the defendant in the position of a person entitled to an easement; whether or not an injunction were granted, the defendant’s conduct would still constitute a trespass ... This reasoning strikes at the very heart of the statutory jurisdiction; it is in marked contrast to the attitude of the many judges who from the very first have recognised that, while the Act does not enable the court to license future wrongs, this may be the practical result of withholding injunctive relief ... Thereafter the defendant may have no right to act in the manner complained of, but he cannot be prevented from doing so.
173 See Morris-Garner (n 1) [69] (‘The claimant does not literally lose the right in question’).
174 Anchor Brewhouse Developments Ltd v Berkley House (Docklands Developments) Ltd (1987) 38 BLR 97, 101.
175 Jaggard (n 171) 285–86.
In this light, the more accurate explanation of what the claimant is being forced to give up – what the claimant has lost – is the liberty to enforce his or her primary rights against the defendant. As a result of the court’s refusal to grant the injunction and its decision to grant damages instead, the defendant shall, into the future, be immunised from suit – any claim would be struck out176 – and the claimant shall be disabled from bringing a claim against the defendant in respect of the subject matter of the damages award. Such damages are often drawn together with and analysed alongside other types of damages relating to proprietary interests and which have proven challenging to explain, such as user damages for trespass. However, damages in lieu are different in nature, in that they do not compensate for a one-off intrusion upon a protected interest (and are awarded in a unique statutory jurisdiction, which is equitable in nature).177 Rather they compensate for the loss of the liberty to enforce a primary right into the future.
The different nature of such damages in turn explains why they are calculated differently from user damages. In trespass, user damages are assessed according to parameters that measure the seriousness or extent of the defendant’s interference with the claimant’s interests, such as duration of use and amount of land used. However, there are no such parameters when assessing damages for the loss of the liberty to enforce a primary right. Furthermore, while there is a rental market for land, by reference to which interests in possession and use can be valued, there is no such market for trading in liberties to enforce primary rights. As such, the courts resort to a different measure: a hypothetical bargain between the claimant and the defendant for the ‘purchase’ of the claimant’s liberty to enforce.178 Put another way, damages are akin to the ‘price of [the claimant] waiving their rights’ to sue.179 Thus such damages have commonly been referred to as ‘negotiating damages’.180 Having said this, within any hypothetical negotiation, what the claimant may reasonably have demanded for waiver of the right to sue will naturally be informed by the value of what the claimant is
176 Ibid 280–81.
177 See Morris-Garner (n 1) [46]-[47], [55]-[56], [62], [71]; cf K Barker, ‘“Damages Without Loss”: Can Hohfeld
Help?’ (2014) 34 OJLS 631.
178 Albeit, as noted in Morris-Garner (n 1) [63], [95](5), while negotiating damages are the common measure applied in property tort cases, they may not be the invariable measure for damages under the Lord Cairns’ Act jurisdiction; it is ultimately for the court to judge the most appropriate method of quantification in the circumstances.
179 Jaggard (n 171) 289. And see ibid [69].
180 Lunn Poly Ltd v Liverpool & Lancashire Properties Ltd [2006] EWCA Civ 430; [2006] 2 EGLR 29, [22]. And see now Morris-Garner
(n 1) [3] et passim, the Supreme Court endorsing this terminology.
giving up through not being able to protect his or her primary rights.181 This explains why Brightman J in Wrotham Park took into account, in setting damages in lieu, the profits the defendant would make from use of the land in breach of the restrictive covenant.182 Contrary to the claims of restitution theorists, it is obvious that Brightman J’s consideration of the profits the defendant could make through use did not suggest damages were a form of disgorgement damages. As Bingham LJ said in Jaggard, Brightman J
paid attention to the profits earned by the defendants, as it seems to me, not to strip the defendants of their unjust gains, but because of the obvious relationship between the profits earned by the defendants and the sum which the defendants would reasonably have been willing to pay to secure release from the covenant.183
Millett LJ echoed this view:
It is plain from his judgment ... that Brightman J’s approach was compensatory, not restitutionary ... He did not award the plaintiff the profit which the defendant had made by the breach, but the amount which he judged the plaintiff might have obtained as the price of giving its consent.184
Kennedy LJ agreed with Bingham LJ. In the more recent case of Force India, Arnold J, distilling from the authorities the principles applicable to assessment of ‘negotiating damages’, could not have been clearer when he said ‘The overriding principle is that the damages are compensatory’.185 That these damages are compensatory has now been authoritatively confirmed by the Supreme Court, consonant with the statements of principle in Jaggard: such damages compensate for ‘what is lost by the withholding of’ an injunction.186
Thus damages in lieu of an injunction compensate for the loss of the liberty to sue, not the loss of primary rights as such. Nonetheless, as noted above, it is significant that the practical effect of a grant of damages in lieu is that the claimant is unable to enjoy his or her primary rights and must endure an ongoing wrong. The courts have taken these effects seriously, and
181 See Morris-Garner (n 1) [95](4).
182 Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798, 815–16.
183 Jaggard (n 171) 281–82.
184 ibid 291.
185 Force India Formula One Team Ltd v 1 Malaysia Racing Team SDN BHD [2012] EWHC 616, [386](i) (appeal dismissed [2013] EWCA Civ 780).
186 Morris-Garner (n 1) eg [44], [58]-[61], [95](3)-(4), [114].
generally injunctions have been granted as of course for ongoing nuisances and trespasses. The courts have been reluctant to allow a defendant to effectively buy his or her way out of complying with legal duties: ‘the Court has always protested against the notion that it ought to allow a wrong to continue simply because the wrongdoer is able and willing to pay for the injury he may inflict’.187 Lord Kingsdown in Imperial Gas Light said that for an ongoing wrong an injunction should issue ‘as of course’, unless there ‘is something special in the case’.188 In Shelfer it was observed that ‘very exceptional circumstances’189 would be required before damages were given in lieu, and the working rule enunciated by AL Smith LJ in that case indicates that this will only be where it is oppressive to the defendant to grant the injunction.190 There is another reason why courts should be reluctant to grant damages in lieu. The court’s refusal to grant an injunction de facto – albeit not de jure – effects a redistribution of proprietary rights. Damages in lieu may not grant a defendant a right of way over the claimant’s land as a matter of law, but as a matter of fact the practical effects are not dissimilar. Courts are not well placed institutionally, and they lack constitutional legitimacy to effect such redistributions. Allocation of rights ought first and foremost to be for the political branches of government. Furthermore, there is a de jure redistribution of sorts in that the claimant loses a legal liberty to sue.
If the courts have been reluctant to allow ongoing nuisances or trespasses to continue, which involve interferences with proprietary interests (recall nuisance is a tort against land), they should be even more reluctant to allow an ongoing interference with dignitary interests such as liberty, physical integrity or privacy to continue for a fee. The idea of being disabled from enforcing one’s basic personal or privacy rights is unpalatable in a liberal democracy. This was recognised by Lord Mance in Fen Tigers. Albeit the Supreme Court in that case suggested (in my view wrongly, with respect), at least in cases of private nuisance, that the criteria for granting damages in lieu need not be as strict as AL Smith LJ’s working rule suggested,191 Lord Mance observed that ‘the right to enjoy one’s home without disturbance is one which I believe many, indeed most, people value for reasons largely if not entirely
187 Shelfer v City of London Electric Lighting Co [1894] UKLawRpCh 212; [1895] 1 Ch 287, 315–16.
188 Imperial Gas Light and Coke Company v Broadbent [1859] EngR 915; (1859) 7 HL Cas 600, 612.
189 Shelfer (n 187) 316.
190 ibid 322–23; and see Jaggard (n 171) 287–88.
191 The Court did, however, maintain that ‘the prima facie position is that an injunction should be granted’ (Fen Tigers (n 129) [101], [121]).
independent of money’.192 This suggests where the subject matter of the claimed injunction is something other than land or goods, which can be valued in market terms, the courts should be even slower to grant damages in lieu than they typically would be, as damages are an even less satisfactory remedy for an ongoing interference with dignitary interests. This point was echoed specifically in the context of privacy in PJS, again by Lord Mance.193 One may analogise here with the great writ of habeas corpus, itself a type of specific relief constituted to address ongoing interferences with a basic interest. The writ issues as of right where it is proven that a person is being deprived of liberty without lawful justification.
V. Conclusion
Given the protective and vindicatory policies that underpin creation of privacy rights, damages for both normative and factual losses ought to be available, and clearly are available following Gulati. Compensatory damages should not follow the ECtHR’s approach to money awards under Article 41 of the Convention.
Exemplary damages ought to be available. But care must be taken to ensure that quantum is not so high as to constitute a disproportionate interference with freedom of expression. An account of profits is an unnecessary remedy in the light of the availability of normative damages, coupled with exemplary damages in the second category of Rookes; exemplary damages in the second category also have many advantages over the remedy of an account of profits. However, if an account of profits were to be made available, the remedy ought to be exceptional, and the criteria for its award should follow the normative concerns that underpin creation of the primary rights in privacy. Reasonable fee or user damages are one way of measuring normative damage in property torts. They are not restitutionary. They ought not to be available for breach of privacy, as it would be inapt to treat dignitary interests as if they were interests in tradeable commodities. The novel head of vindicatory damages ought not to be available. Such damages add nothing to established remedies.
Damages in lieu of an injunction compensate for the loss of the legal liberty to enforce a primary right. They are not restitutionary. Where a privacy claimant proves an ongoing
192 ibid [168], and see also [127], [247].
193 PJS (n 35) [41].
wrong, an injunction should be granted as of course to restrain that wrong. A court should be extremely reluctant to refuse a final injunction and grant damages in substitution.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/UMelbLRS/2018/7.html
