The Claimants claimed damages for distress. They had suffered no pecuniary loss as a result of the alleged misuse of their private information.

The Claimants’ case alleged that under the law there existed a tort (i.e. actionable wrong) of wrongful interference with privacy that is separate and distinct from a breach of confidence. The characterisation of the claim was crucial is it had implications regarding jurisdiction.

The background was an earlier decision on another case¹ where the Court of Appeal had confirmed that breach of confidence is a breach of trust and not a tort.

The Court of Appeal decision

The case has now been considered by the Court of Appeal². The issues included:

(a)    whether wrongful interference with privacy was to be characterised as a tort separate and distinct from breach of confidence; and

(b)    whether there was a right to damages for distress where there is no pecuniary loss. The background was the inconsistency between the applicable UK law (Section 13(2) Data Protection Act 1998) which only provides for compensation for distress where there is also pecuniary loss and the EU Directive (95/46/EC) which makes no such restriction.

The Court of Appeal upheld the original decision and in doing so confirmed that there was a tort of wrongful interference with privacy.

Leave has been given for an appeal to the Supreme Court. However this leave is only in respect of the damages question. The question of the characterisation of wrongful interference with privacy as a tort is not the subject of appeal and thus seems to be concluded.

¹ Kitetechnology BV v Unicor GmbH Plastmaschinen [1995] FSR 765 at 777-778
² Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311

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The Facts of the case

The three Claimants were users of Apple Safari internet browsers. They alleged that the Defendant, Google Inc., misused their private information by tracking and collating information relating to their internet usage on the Apple Safari internet browser without their consent or knowledge.

In order to pursue a claim before the English courts, the Claimants needed permission to serve the claim on Google Inc., in California. The conditions under which a Defendant can be served out of the jurisdiction are laid down by law. These include claims made in tort where (a) damage was sustained within the jurisdiction of the English courts; or (b) the damage sustained resulted from an act committed within the jurisdiction.

The judge held that tort of misuse of private information is a tort within the meaning of this ground and that Claimants might serve their claim on Google Inc., in California.

Legal background – Confidentiality and privacy

The English courts have historically protected against the wrongful use of confidential (secret) information by means of an action for breach of confidence. The law imposes a ‘duty of confidence’ whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. This may arise in the context of a contract (e.g. under a confidentiality or nondisclosure agreement) but it may also arise when a party receives information in circumstances that imply confidence.

Where there is a breach of confidence in a contractual context the claim may be for breach of an express or implied term in the contract. Where there is no contractual tie the cause of action is the equitable jurisdiction to restrain (or if it cannot be restrained, to award compensation or an account of profits for) breach of confidence. A claim for breach of confidence is not a claim in tort.[2]

In parallel with confidentiality, the subject of privacy is now a fast developing area of the law. Partly this has been triggered by the enactment of Human Rights Act 1998 (incorporating the European Convention on Human Rights) and the Data Protection Act 1998. However under English law, unlike the United States of America, there is no over-arching, all-embracing cause of action for ‘invasion of privacy'[3].

Privacy is not the same as confidentiality. Information about an individual’s private life would not normally be called ‘confidential’. Rather the more natural description is that such information is private. The difference between confidentiality and privacy and the remedies for breach have been summarised as follows:

“As the law has developed breach of confidence, or misuse of confidential information, now covers two distinct causes of action, protecting two different interests: privacy, and secret (“confidential”) information. It is important to keep these two distinct. In some instances, information may qualify for protection both on grounds of privacy and confidentiality. In other instances, information may be in the public domain, and not qualify for protection as confidential, and yet qualify for protection on the grounds of privacy. Privacy can be invaded by further publication of information or photographs already disclosed to the public. Conversely, and obviously, a trade secret may be protected as confidential information even though no question of personal privacy is involved.”[4]

Comments

This latest case confirms that there is a tort of misuse of private information. This may have a number of possible implications:

• Substantive claim – This may provide a ground for making a claim that is an alternative to a claim based on breach of confidence e.g. if the subject matter is no longer secret.
• Damages – The damages that may be claimed for misuse of private information may be calculated on a basis that is different from damages for breach of confidence. Thus under English law damages for tort claims are generally aimed at restoring the innocent party to the position prior to the tortuous event whereas damages for breach of contract (here potentially a confidentiality agreement) are intended to place the innocent party in the same position as if the contract had been performed.
• Procedure – Characterisation of a claim as being a tort may bring it within the ambit of rules of procedure (as in Vidal Hall) or regulations that might be different from those applicable to claims for breach of confidence. For example the Rome II Regulation that deals with the choice of law applicable to tort and other noncontractual claims is different from the Rome I Regulation which deals with the choice of law applicable to contracts.

The Vidal Hall case has yet to go to trial and there may be further developments in this area.

[1] Vidal -Hall & Ors v Google Inc [2014] EWHC 13 (QB) (16 January 2014)
[2] Kitetechnology BV v Unicor GmbH Plastmaschinen [1995] FSR 765 at 777-778
[3] Wainwright v Home Office [2003] 3 WLR 1137

[4] OBG Ltd v Allan and Douglas v Hello! [2008] 1 AC 1 Lord Nicholls at paragraph [255]

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