<\/p>\n
In the 20th century, the law of breach of confidence has expanded due to the case of Attorney-General v Guardian Newspaper [4<\/a>]<\/span> , where Lord Keith dictates that; \u201cBreach of confidence involves no more than an invasion of personal privacy. Thus in Duchess of Argyll v Duke of Argyll [1967] CH 302 an injunction was granted against the revelation of marital confidences. The right to personal privacy is clearly one which the law should in this field seek to protect.”<\/p>\n In Coco v A.N.Clark (Engineers) [5<\/a>]<\/span> the court has laid down three extensions of breach of confidence to consider the basic element which suggested in Coco. The three extensions were i) Confidentiality could not arise in respect of information which was generally accessible, ii) Confidentiality could not apply to useless or trivial information, and iii) The public interest in confidentiality could be outweighed by some other countervailing public interest. By the 90\u2019s, breach of confidence had developed substantially to comprehend certain ideas of privacy. However, Glidwell LJ in Kaye v Robertson [6<\/a>]<\/span> in his judgement articulated that \u201cit is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person\u2019s privacy”.<\/p>\n It is appropriate to say that from Kaye\u2019s case, it demonstrates that English law at the time was not fully prepared to acknowledge cases which consists right of privacy despite previous positive decisions. As per Bingham LJ [7<\/a>]<\/span> , this was a scenario where there was no public interest in the publication of the story and if ever there was a case where a right to privacy should dominate that of free expression, then this was it.<\/p>\n The ruling in Kaye has established some flaws which existed through breach of confidence in attempting to balance the right of privacy. As such, several cases have widened the law of confidence in order to cure the problems. In light of Hellewell v Chief of Derbyshire [8<\/a>]<\/span> , Laws J. introduced an implied obligation of confidence, where he dictates that \u201cI entertain no doubt that disclosure of a photograph may, in some circumstances, be actionable as a breach of confidence\u2026 in such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the course of action would be breach of confidence”.<\/p>\n There was a controversy regarding the new implied obligation of confidence laid down by Laws J. where it might have worked if applied to Kaye, nonetheless, it is submitted that it certainly would have balanced the overly one-sided free expression theory. Ravinder Singh in European Human Rights Law Review considered that \u201cEnglish law does currently afford some protection to privacy interests but it does not follow that there is a right to privacy as such”. [9<\/a>]<\/span> However, he changed his opinion four years later, where he states that \u201cthe time has come to say openly that there is a right to privacy in English law”. [10<\/a>]<\/span><\/p>\n The introduction of the Human Rights Act 1998, which incorporated the European Convention on Human Rights into English Law has dedicated new legislation, there were Articles 8 and 10. (Article 8 of the Convention required \u2018a right to respect for private and family life\u2019. Article 10(1) restored the steadiness by insisting on the right to freedom of expression.) Albeit the new legislation, there was no sign of developing a new tort of privacy, as Lord Irvine L.C. commented [11<\/a>]<\/span> : \u201cI believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like to fashion a common law right of privacy.”<\/p>\n In the case of Douglas v Hello! Ltd (No.1) [12<\/a>]<\/span> , it was the first attempt of whether breach of confidence could balance the Human Rights Act principle of privacy and free expression. It was to be said that freedom of expression had been referred to as a \u2018trump card\u2019 [13<\/a>]<\/span> in English Law which \u2018always wins\u2019 [14<\/a>]<\/span> , but the Court of Appeal pointed out that there were several limitations: \u201cIn other words if freedom of expression is to be impeded\u2026.it must be on cogent grounds recognised by law.” [15<\/a>]<\/span> The ruling was stated as such \u201cwe have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy.” [16<\/a>]<\/span><\/p>\n Sedley LJ suggested that a law of right of privacy could step outside the boundary of breach of confidence and he continues: \u201cThe law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.” [17<\/a>]<\/span><\/p>\n In spite of Sedley LJ ruling, it seemed most likely that the development of breach of confidence would be the way to provide protection. This though was reinforced by the ruling in Venables v News Group Newspapers Ltd. [18<\/a>]<\/span> Dame Elizabeth Butler-Sloss articulates that, \u201cunder the umbrella of confidentiality there may be information that may require a special quality of protection” [19<\/a>]<\/span> . In this case she refers to the freedom of expression being dominated by article 2, the right to life and article 3, the prohibition of torture, as well as article 8 itself.<\/p>\n The Venables ruling deemed to ascertain that the protection of the right to privacy had been in favour over the right to free expression. This idea continued in A v B and C, in regards of a Premiership football who attempted to restrain publication of details of extra-marital affairs in the Sunday People. At first sight, Jack J. granted the injunction via an extension of confidence, stating that the law should protect [20<\/a>]<\/span> \u201cfacts concerning sexual relations within marriage\u2026.and in the context of modern sexual relations, it should be no different to facts outside marriage.”<\/p>\n The Court of Appeal overturned the decision and stated that public figures were open to increased scrutiny [21<\/a>]<\/span> , and differentiated between relationships of a permanent nature, and those of a transient nature as were the subject of this case. In early 2002, Ouseley J. [22<\/a>]<\/span> had refused to grant an injunction to television Jamie Theakston\u2019s personality in regards of a sexual encounter in a brothel was not confidential.<\/p>\n There was confusion amongst the judiciary as to whether breach of confidence could successfully protect privacy. In Mills v News Group [23<\/a>]<\/span> Collins J. in the opinion that article 8 did not create a course of action in relation to privacy, however, a month later in the case of Beckham v MGN [24<\/a>]<\/span> Eady J. seems to acknowledged that there was a new law of privacy which differ from breach of confidence.<\/p>\n In Campbell v MGN [25<\/a>]<\/span> , the decision was in favour of the claimant being reversed on appeal [26<\/a>]<\/span> . Here, Lord Phillips MR tried to clear up some issues surrounding the case, however, it could be argued that his decision shows uncertainty in this course of the law: \u201cWe do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.” Yet he suggests: \u201cWhere a public figure chooses to make untrue pronouncements about his, or her, private life, the press will normally be entitled to put the record straight.”<\/p>\n Lindsay J. made his final decision in Douglas v Hello! Ltd (No.6) [27<\/a>]<\/span> , he found favour in the claimants\u2019 view on a traditional breach of confidence basis. However, he articulates that even though breach of confidence could be able to work in this set of circumstances, but it may not be adequate in a different scenario: \u201cParliament has failed so far to grasp the nettle does not prove that it will not have to be grasped in the future”, inadequacies in the law of confidence \u201cwill have to be made good and if Parliament does not step in then the Courts will be obliged to.” [28<\/a>]<\/span><\/p>\n In Peck v United Kingdom [29<\/a>]<\/span> , it demonstrates on what Lindsay J. has foreseen. The case was highlighted the incompetence of breach of confidence to provide a complete protection of the right to privacy and the failure of English Law to remedy the violation of Mr.Peck\u2019s rights in article 8. Home Office v Wainwright [30<\/a>]<\/span> has demonstrated the reluctance of the judiciary to acknowledge the matters and there was a need for change on the inability of breach of confidence to balance free expression and privacy. Ravinder Singh admitted that it was difficult to advocates the right to privacy within the existing framework of the law of confidentiality [31<\/a>]<\/span> after having witnessed the limitations in the laws of breach of confidence.<\/p>\n