Dear all,

 

I don’t know that it should have too much a chilling effect. There are literally hundreds of cases on the balance between articles 8 and 10 in the context of misuse of private information now; I cannot believe that there will be a great deal of uncertainty in the usual case as to when a court will say this is a  wrong or not by now. However much we might disagree philosophically, the law seems reasonably settled to me.

 

The real issue is whether we want exemplary damages in these cases. Purely from a doctrinal point of view it has always struck me as more than a little puzzling that breach of confidence is an equitable wrong (and punitive damages  do not form part of equity’s remedial arsenal), but that we talk of the tort of misuse of private information. How a common law tort is supposed to develop from an equitable wrong is beyond me – whatever your views on substantive fusion that’s more than a little peculiar. So we should probably start from the position that exemplary damages are unavailable and then wonder whether we should introduce them. If we had them for privacy actions, I would imagine that there would be very few cases in which they were awarded; you are simply not going to have exemplary damages awarded against you for making a misjudgment on the art8/10 balance, but you will if you publish in full recognition that you’re invading their privacy so you can sell a few more papers.

 

But if Hugh Tomlinson is concerned that compensatory damages might be low and commercial benefits high, and the quantum of exemplary damages is often a bit random – as I suspect it is – the answer is surely disgorgement damages or account of profits (take your pick on the name) which is tailored for exactly that problem, and of course we find account of profits is a remedy for breach of confidence.

 

 

Duncan