Date: Wed, 14 May 2008 13:55

From: Anthony de Garr Robinson

Subject: Breach of Privacy a tort now?

There are some other English cases which confusingly treat breach of confidence claims as tort claims, usually as an aside and/or in relation to remedies. See, for example, Winn LJ in Seager v Copydex (No. 2) [1969] 1 WLR at 815B.

Anthony de Garr Robinson QC

http://www.oeclaw.co.uk

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From: Neil Foster  
Sent: 14 May 2008 07:04
Subject: ODG: Breach of Privacy a tort now?

Dear Colleagues,

I see that J K Rowling has succeeded now in getting a full hearing on her claim that her son has an actionable claim for breach of privacy when photos of him in his stroller with his parents were taken without permission and later widely published - see Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446 (7 May 2008).

I found it interesting that Sir Anthony Clarke MR calls the action a "tort" more than once - at [24] (ii) (quoting Lord Nicholls in Campbell v MGN) and at [27]. I always thought that Lord Nicholls' comment was a slip of the judicial tongue, the action traditionally being developed from the equitable action for breach of confidence, not in tort. But has it now "morphed" into a tort? (Of course it has in New Zealand, in Hosking v Runting [2005] 1 NZLR 1, though it is interesting to see that this decision in Murray now expressly disagrees with the balancing of rights in Hosking, and suggests at [53] that there may even be some scope for revisiting it in the new NZSC.)

Or is it a tort now because with the advent of the European Human Rights convention article 8 of that Convention is protected by a tort action for breach of statutory duty?

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