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Articles | Thu 9th Jul, 2020
A few weeks ago, I wrote about the principles involved in assessing damages in cases involving breaches of data protection legislation. Now, I thought it might be useful to similarly consider the question of damages in the context of the tort of the misuse of private information (MPI). Below I try to explain the principles involved in determining general damages. Next week I will try to set some guidance on how aggravated and exemplary damages and pecuniary loss are dealt with in claims of MPI.
The decision in Vidal-Hall v Google Inc  EWCA Civ 311 is a helpful starting point for assessing the principles governing damages for MPI. The Court’s conclusion at  that MPI was an autonomous tort distinct from the equitable action for breach of confidence was recognised as having potentially “broader implications” for “remedies, limitation and vicarious liability”: . It has indeed been the case that a number of decisions since Vidal-Hall have both clarified and expanded the basis on which damages for MPI can be awarded. The analysis below focuses principally (though not exclusively) on these recent authorities and the principles that can be gleaned from them.
The current position is that general damages can be awarded for injury to feelings, loss of the right to control one’s own information, and injury to reputation. This expansion of the scope of general damages has only occurred in the last few years and is the driving force behind the recent trend towards higher awards.
Injury to feelings
In Gulati & Ors v MGN Limited  EWHC 1482 (Ch) (more of which below), Mann J at  set out a number of guiding principles to calculating general damages in MPI claims:
An unfortunate side-effect of Gulati & Ors v MGN Limited  EWHC 1482 is that judges rarely separate out the amount of award that it attributable to the injury to feelings and the amount attributable to the loss of the right to control one’s own data but instead award a global figure combining the two. Pre-Gulati authorities are in this respect helpful in that the quantum analysis focused principally on distress. In Campbell v MGN Ltd  UKHL 22, Naomi Campbell was awarded £2,500 for distress (along with £1,000 for aggravated damages) arising from articles and accompanying photographs showing her leaving a Narcotics Anonymous meeting. The articles concerned sensitive personal information about Ms Campbell’s physical and mental health and the court considered that she was entitled to privacy over those matters. In McKennitt v Ash  E.M.L.R 10 at , the claimant (a well-known folk musician) was awarded £5,000 after a previous colleague wrote a book containing personal and sensitive information detailing various sexual relationships, the claimant’s emotions regarding her deceased fiancé, and her general emotional vulnerability.
A more recent decision is Ali v Channel 5 Broadcasting Ltd  EWHC 298 (Ch), in which the claimants brought a claim for MPI in respect of a broadcast of their eviction that was viewed nearly 10 million times in 20 months. The trial judge awarded £10,000 and notably no submissions were made for any award other than injury to feelings (as recorded by Arnold J at ) and the claim for aggravated damages was rejected.
The parties cross-appealed:  EWCA Civ 1677. The claimant’s central submission on quantum was that the damages awarded did not reflect the scale and nature of the publication. Irwin LJ, giving the leading judgment, dismissed the appeal: despite the scale of the publication there was no comparison to be made to the damages awarded in Gulati [see below] as in that case the hacking involved deliberate illegality at  the Court noted:
“there is a real distinction between the awards for hacking and for any breach of privacy of this kind. Those responsible for hacking knew all along that what they were perpetrating was unlawful. In the instant case, the Defendant had taken careful steps to obtain expert legal advice on the propriety and legality of what they were doing, and there is no question of bad faith. It is submitted that should operate to reduce the award for distress, since the impact of deliberate illegality should be regarded as greater and more distressing”
The Court concluded that as there was nothing obviously wrong with the trial judge’s award, that the [trial] “judge was best placed to make the relevant assessment of impact” the quantum appeal was rejected . On this latter point, those practising in this area should note that an appeal judge will be reluctant to interfere with an award granted by a trial judge unless there is an obvious omission in their reasoning. As Arden LJ noted in Gulati: if “the challenge is to the size of the award, and the judge has as here heard the evidence of witnesses in assessing the effect of the respondents on the misuse of their private information, this Court should not intervene unless the award is so high as to be perverse”: .
A further interesting aspect of the above quotation from Irwin LJ is the suggestion that the award of compensation for the injury to feelings (nb not an award of aggravated or exemplary damages) can vary depending on the manner and motives that lie behind how the breach occurred. In the instant example that the deliberate unlawfulness of the hacking would justify a greater award as the bad faith behind it can be seen as more distressing. By analogy therefore would, all things being equal, a breach that resulted from profound and systematic negligence justify a higher award than one that originated through a clerical error? Arguably yes, assuming that the Claimant suggests that the degree of culpability created a greater feeling of upset.
A case in which the eggshell skull rule seemingly uplifted damages is Burrell v Clifford  EWHC 294 (Ch). The claimant in that case had been a long-time assistant to the Queen. The defendant, a famous publicist, disclosed personal information about the claimant that was obtained pursuant to a potential business relationship to a News of the World journalist. No publication resulted though the letter was circulated internally. Richard Spearman QC (sitting as a Deputy High Court Judge) considered that the information contained in the note was of a “relatively saccharine” nature. An award of £5,000 was made which included an uplift on the basis the claimant was an unusually emotional person who was distressed in circumstances where a more robust person would not have been: . In a similar vein is TLT & Ors v The Secretary of State for the Home Department  EWHC 2217 (QB). The breach in TLT related to the Home Office’s accidental disclosure of information relating to the family returns process. One of the claimants (‘PNB’) suffered from PTSD caused by the Sri Lankan army’s treatment of her. PNB was concerned that if she was forced to return to Sri Lanka she would be subject to further punishment as a result of the disclosure. Mitting J awarded PNB £6,000 whereas other claimants without PNB’s particular characteristics were awarded £3,000, and this was largely on the basis that PNB’s PTSD meant she was more likely to suffer serious distress.
Practitioners should note that the courts have emphasised the need for expert evidence where the claimant is alleging the misuse caused a clinical condition, such as depression or PTSD. In Reid v Price  EWHC 594 (QB), for example, Warby J held that “to compensate for psychiatric harm” he would “need much more detail of the symptoms, and a sound evidential basis, almost certainly including expert evidence, for attributing causation”: . This did not however prevent Warby J from finding that the claimant had suffered “a real loss of personal dignity and harm to his self-esteem” as a result of the repeated disclosure of photographs documenting his private sexual inclinations. The claimant was ultimately awarded £25,000 (a part of which was attributable to the defendant’s aggravating conduct and most likely the loss of the right to control his own information).
More recently, Julian Knowles J in Stanley v Tower Hamlets LBC  EWHC 1622 (QB) set aside a default judgment obtained by the Claimant partly on the grounds that no medical report had been served with the Particulars of Claim supporting the assertion that the Claimant had suffered “psychological distress” as a result of an admitted data breach.
Gulati: Damages for the infringement of the right itself
A seminal case on the scope of damages for the MPI tort is Gulati as affirmed by the Court of Appeal in  EWCA Civ 1291. Gulati involved a number of claimants who had been subject to phone hacking. The claimants sought compensation for injury to feelings, the loss of privacy or autonomy resulting from the hacking and the “damage or affront to dignity or standing”. The defendant submitted that the claimant could only claim damages for injury to feelings. Mann J held (and Arden LJ in the Court of Appeal agreed) that in an “appropriate case” damages can be sought not only for injury to feelings but also for loss of privacy or autonomy arising out of the infringement: .
Careful attention needs to be paid to the reasoning underlying Mann J’s decision. Mann J first articulated that the essence of the MPI tort is the protection of the values underpinning article 8:  and . It was then identified that the core value underpinning article 8 is not protecting injury to feelings from actionable publications, but rather “the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people” per Hoffman LJ at  in Campbell. Bringing those points together, Mann J reasoned that if the touchstone for damages in a misuse of information claim was injury to feelings, as the defendant submitted, then the tort would fail in its purpose of providing proper protection to the wider set of values underpinning article 8: [111-3]. An “appropriate case” for awarding additional damages will therefore be where there is a “sustained and serious infringement” of the right to privacy and autonomy, such that “the stated values ought themselves to be protectable with an award of damages”: . Mann J emphasized that extreme care must be taken to avoid double counting these damages and the damages awarded for injury to feelings: . After taking steps to protect against such double counting, the Court awarded a largely unprecedented level of damages to each claimant ranging from £72,500 to £260,250.
Both Mann J and Arden LJ were careful to distinguish the sort of damages for infringement described above from ‘vindicatory damages’, the use of which in civil cases was disapproved of by Lord Dyson at - in R (Lumba) v Secretary of Estate for the Home Department  UKSC 12. The damages awarded in Gulati to reflect the infringement were considered to be “truly compensatory” (as opposed to vindicatory) in that they compensate for the lost opportunity of controlling one’s own information which, though not measurable in money terms, can often be said to have a monetary value: [132, Mann J] and [45, Arden LJ].
There have been numerous subsequent cases where awarded damages have included damages for loss of the right to control the use of one’s own information. In Sir Cliff Richard v BBC and the Chief Constable of South Yorkshire Police  EWHC 1837 (Ch), Sir Cliff sought damages for MPI against the defendants following the broadcasting of a search of his home conducted in relation to a historic sexual abuse investigation. The general damages award of £210,000 (which included an aggravated damages award of £20,000) expressly included damages for the invasion of Sir Cliff’s privacy (or depriving him of the right to control the use of his private information): . Somewhat unhelpfully, Mann J did not set out the exact amount of damages attributable to the loss of the right to control one’s own information. This is unfortunately the approach taken in most of the case law: damages for distress and damages for the loss of the right will ordinarily be rolled into one award.
A further example is Bull v Desporte  EWHC 1650 (QB), where the claimant sought damages for copyright infringement and MPI in respect of a book published by the defendant which contained private information about the claimant. So far as the MPI claim was concerned, the claimant sought damages for injury to feelings and for the loss of privacy of autonomy caused by the MPI as well as aggravated damages. Knowles J considered that damages on both bases were justified and awarded £10,000 for general damages along with an additional £2,500 for aggravated damages. The decisive factors were that the publication had clearly caused the claimant distress and (drawing on Mann J’s discussion of the sorts of information that may attract higher awards at  in Gulati) the nature of the private information in the book entailed that there had been a serious invasion of the claimant’s privacy and autonomy. The main factor militating against a higher award was that the scale of the publication was limited (there were around 100 hardcopy sales).
In Reid, the claimant brought a claim for breach of confidence, breach of statutory duty under the DPA 1998 and MPI (a breach of contract claim was also pleaded but was held to add nothing of relevance: ) in relation to the repeated disclosure (up to 50 times) of information relating to his private sexual activity. Warby J took a general approach to damages, not differentiating between each cause of action, and awarded £25,000 (though there was a suggestion that he may have awarded more had the claim form not stated the limit of £25,000). Warby J clearly took into consideration his ability to award damages for the loss of the claimant’s right to control the use of his own information at , and it seems likely that this formed part of the general damages award. The determinative findings were: i) the defendant’s conduct “involved the deliberate exposure to a substantial number of individuals of moving and still images of the claimant’s sexual activity” ; ii) the claimant clearly found “it demeaning to have details of his sex life disclosed” and that in this way he has “suffered a real loss of personal dignity and harm to his self-esteem” ; and iii) the defendant’s conduct considerably aggravated the harm caused – she had acted maliciously, and sometimes even threateningly .
Damage to reputation
Early authorities on MPI (though often under its the moniker of ‘breach of confidence) were at pains to emphasize that damage to reputation was not a function of this cause of action. In Mosley v News Group Newspapers Ltd  EWHC 1777 (QB), Eady J asserted that injury to reputation is the territory of libel and defamation and not MPI (or what Eady J called “breach of confidence and/or the unauthorised disclosure of personal information) and that MPI was focused instead on personal dignity, autonomy and integrity: ,  and .
Over time, as the MPI tort has been developed by the courts this position has shifted. In Hannon v News Group Newspapers Ltd  EWHC 1580 (Ch), Mann J considered that there was no reason why damage to reputation should not be recoverable in the context of an MPI claim. A number of years later, in Sir Cliff Richard, Mann J permitted the claimant to obtain damages to reputation as part of his claim against the BBC for misuse of private information. Support for this decision was gleaned from Sumption LJ’s reasoning in Khuja v Times Newspapers Ltd  UKSC 49: “…although the ambit of the right to privacy is wider [than the rights protected by the law of defamation], it provides an alternative means of protecting reputation which is available even when the matters published are true”. General damages were awarded at £190,000 (not including aggravated damages), which included damage to reputation, the claimant’s loss of the right to use his own information, and damages for injury to feelings.
It has been said that the logic of the law requires that awards granted for MPI or libel should not be out of kilter with personal injuries compensation: see Arden LJ in Gulati at . More particularly, “the process of assessing damages for non-pecuniary loss… must not be carried out in disregard or ignorance of damages awarded in personal injury cases and that there should be some reasonable relationship between awards in both cases”: [61, Arden LJ in Gulati]. It should also be noted, however, that “taking account of personal injury compensation does not mean that the outcome in this field has to be exactly the same”: .
An example of this process in practice can be seen in the recent decision of Reid. There the claimant submitted that the breach would in principle have justified an award of £60,000 (the claim was in fact limited to £25,00 due to that being the stated limit on the claim form). Warby J considered this against the sort of personal injury that would justify an award of £60,000 (i.e., where a person loses sight in one eye) and held the loss suffered by the claimant as a result of the MPI was by substantially less serious. Warby J then, after considering that £25,000 was a suitable award, tested this figure against the sort of personal injury that would justify the same amount (i.e., moderately severe psychiatric harm or a neck injury leaving markedly impaired function) and considered this to be a reasonable comparison: .
Another feature of note in the Gulati litigation was Arden LJ’s rejection of the defendant’s submission that the levels of damages awarded in claims brought under section 8 of the HRA 1998 or Article 41 of the Convention for breach of Article 8 were a necessary barometer for the proportionality of damages awarded in an MPI claim. In an MPI claim, “the question of the measure of damages is more naturally a question for English domestic law”: . This aspect of the judgment seems counter-intuitive as the fundamental purpose of MPI is the same as claims brought under section 8 of the HRA 1998 or Article 41, namely the protection of convention rights. It is unclear therefore why damages awarded on the latter two bases should have no comparative weight. That nonetheless appears to be the present position.
As matters currently stand the tort of MPI is made out if a Claimant can demonstrate (i) a reasonable expectation of privacy relating to personal information and (ii) that that expectation is not outweighed by a countervailing interest. The information need not be published to the world at large, it does not need to be untrue and it does not need to have caused any pecuniary loss or great upset. These considerations have significantly extended the reach of the tort. Given the ever-increasing amount of information that is retained by the state and private companies the potential exposure to liability for MPI is significant and, to some, alarming. This area of law is developing rapidly and the Courts are trying to navigate a world where private data and information is arguably afforded a greater degree of protection than bodily integrity or personal reputation.
Next week I will be looking at how the Courts deal with aggravated and exemplary damages in MPI claims along with the issue of pecuniary loss.
 It is thought that this guidance applies to both damages for injury to feelings and damage for the loss of the right to control one’s own information.
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