The rocketing value of privacy

Despite assumptions to the contrary in our social media-saturated times, Associate Professor Nicole Moreham says there is an increasing recognition of the value of privacy. Navigating celebrity scandals, six-figure sums and rude baking, she argues the law is right to regard privacy as a fundamental aspect of human autonomy and dignity.

Associate Professor Nicole Moreham

In 2002, model Naomi Campbell received £2,500 in damages, plus £1,000 in aggravated damages, after the Daily Mirror published photos of her leaving a Narcotics Anonymous meeting and details of her drug addiction treatment. In 2003, actors Michael Douglas and Catherine Zeta-Jones were awarded £7,250 each in damages for the distress and inconvenience caused when Hello! magazine published unauthorised photos of their wedding. In 2008, former Formula One boss Max Mosely received £60,000 when News of the World published photos and video of him participating in a sado-masochistic orgy.

“One of the things about privacy law, particularly in the UK, is that the case law is driven by celebrities and public figures,” says Nicole. “They’re the ones who get the most media exposure, so they’re the ones whose privacy gets breached, but they’re also the ones who have the means to seek redress in the courts. Public figures and celebrities are creating cases that push the law forward, and the law applies to all of us.”

Until relatively recently, damages for privacy breaches were low. “With Campbell, or Douglas, these are not big sums. It’s not going to hurt you as a large media organisation. There were still massive costs bills, which were a big factor, but the actual awards weren’t really worth fighting over. Mosely got significantly more, but it was such an egregious breach—it’s hard to imagine a more humiliating breach of privacy. It’s actually still reasonably low compared to the awards you get for defamation.”

Then, in 2015, a group of eight claimants received a total of £1.2 million in damages (individual amounts ranged from £72,500 to £260,250) following a systematic campaign of telephone hacking conducted by Mirror Group Newspapers Ltd. And earlier this year, Cliff Richard was awarded £210,000 in damages for breach of privacy, following the BBC’s 2014 broadcast of a raid on his house by police investigating allegations of historical child sexual assault. So how did the courts start arriving at such large sums? According to Nicole, once it’s accepted that an actionable breach of privacy has occurred, the question of how much should be paid out involves two further questions. “One is about conceptualising the nature of the loss—what is it you suffer when somebody breaches your privacy? And then, how much is that worth in monetary terms?”

The phone hacking case, Gulati and others v MGN Ltd, was a game-changer, she says. “The awards suddenly started to go right up. In that case, you saw multiple six-figure awards. According to the judge, Justice Mann, this was partly because of the nature of the breach—these people had their privacy taken from them systematically for a period of years.” One of the victims, actor Sadie Frost, described the experience as a “living hell” that made her suspect her mother of selling stories to the press. Former footballer Paul Gascoigne, who was undergoing treatment for mental health issues, was told his paranoia about phone hacking was a delusion. “It hugely interfered with their relationships, their sense of self. They started to suspect the people closest to them. It had a terrible impact,” says Nicole.

But what was most significant about the Gulati judgment, she says, was that it set out that the court wasn’t just compensating for the distress caused—it was compensating for the breach itself. “Traditionally in the law of tort, you’re compensating for harm. A classic torts case for harm would be, ‘you caused me physical injury’, or in New Zealand where we have ACC, ‘you caused me financial loss’. This—you breached my privacy—is a long way from that. People accept it’s a harm, but what’s the nature of that harm? One way of looking at it, that has had quite a lot of currency in the courts, is that you’re compensating for the distress caused. But this judgment said, over and above distress, we’re compensating for a loss of privacy per se. Saying that a breach of privacy in itself is a harm that deserves compensation is quite a radical shift. It brings privacy more into line with torts like assault or false imprisonment, which are actionable as a matter of right.”

The underlying logic of this shift, she says, relates to the reasons we value privacy. “When you go to the language of the courts, and the theorists, you see they all say that the reason we protect privacy is because it’s a fundamental aspect of autonomy and dignity. What the courts are really doing is saying, ‘This person has treated you in a way which is inconsistent with your entitlement to respect’. That if somebody humiliates you or exposes you, then that’s a loss, regardless of how you respond to it.”

This is illustrated when you consider the most vulnerable people. “Consider a person who is mentally impaired, for example, so mentally impaired that they don’t really know what’s going on, or a child, or a person who is unconscious. You could breach their privacy—you could take a photograph of them naked being attended to in a hospital, and put it on the internet, and they’re not going to suffer any distress. And yet, on any theoretical or legal analysis, they’re seen to suffer a breach of privacy. Do we say then that they don’t suffer any loss and that they can’t be compensated? According to the law we don’t— we say that this is inconsistent with
their dignity, and redress is appropriate.”

This conceptual shift can help explain the increase in damages awarded. “Recognising the inherent importance of privacy—its connection with autonomy and dignity—means that you give it more importance. It’s hard to say something is a fundamental part of autonomy and dignity and not recognise its importance.”

What’s the likely impact of all this on everyday people? “I think it raises the prominence of privacy, it makes it a more effectively recognised legal right—a right that applies to everybody. If you’re an ordinary person who’s suffered a breach of privacy and you can get access to the courts, it may be more worthwhile, because there’s actually some money to be had. It also means that people who might otherwise have engaged in this type of behaviour might think twice, because the costs are higher.”

There is, however, another side to this, says Nicole. Media in the UK warned that the Cliff Richard decision represented a serious blow to press freedom, by appearing to set a precedent that would restrict their ability to report that an individual is under investigation by the police, prior to charges being brought. “As ordinary people are consumers of news, if this creates a chill in what the press feel that they can do, it’s going to affect the kind of information people receive. When that information is the details of Max Mosely’s orgy, we probably can do without it. But when it’s about an investigation of wrongdoing, then it does have an impact on what we can find out about the people who live amongst us.”

In New Zealand, there is still a lot of uncertainty about how similar situations might play out. “Our case law is much less well developed than in England. The privacy tort was recognised in New Zealand about the same time as it was in England and Wales, but here we’ve got about a dozen cases, whereas they’ve got more like a thousand. We don’t yet know what would happen if these type of cases came to the New Zealand courts.”

There is another avenue for addressing privacy breaches in New Zealand, via the Privacy Act—you can lodge a complaint with the Privacy Commissioner, and if the complaint can’t be settled, it can go to the Human Rights Review Tribunal. “It’s interesting that at the same time as these big increases have been going on in the English common law, we’ve seen some big increases in damages awarded by the Human Rights Review Tribunal here for breaches of privacy,” says Nicole. She cites the Tribunal’s 2015 decision to award a woman a record $168,000 for breach of privacy under the Privacy Act. The woman’s former employer had taken an image of a cake, which featured derogatory statements about the employer written in icing, from her Facebook profile and circulated it widely in an attempt to harm her future employment prospects. “There’s a general trend to recognising that privacy is an interest worth protecting, that it needs to be taken seriously, and that includes giving greater compensation to people whose privacy has been breached.”

Does she think it’s strange that we’re seeing this trend at the same time as new technology fuels an increase in the amount of
personal information we share? “I actually think social media is creating an enhanced awareness of the issue, particularly now that we’re beginning to see some of the ways in which social media platforms operate. So maybe we guard the bits that are remaining more carefully,” she says. “There are always different social mores about what one keeps back and what one discloses. Even before social media and the internet, we were all disclosing a huge amount more about ourselves than we would have done in the 1950s, or back in Victorian times. With social media, these mores are shifting again.”

In an era where people are voluntarily sharing so much more information, people often question if there’s any privacy left. But the ‘voluntary’ part is key, says Nicole. “The person who puts something up on social media wants to put that up. It doesn’t give you carte blanche to look at the stuff that they’re not putting up. Or to pry into things that they’re trying to keep private.” The choice, she emphasises, is valuable to the person who is exercising it: “I’ve never met anybody who is voluntarily sharing everything”.

This article was originally featured in the 2018 edition of our annual alumni magazine, V.alum. If you would like to receive V.alum, either electronically or in hardcopy, please sign up here.