The English torts of defamation and (false) privacy: analysing the impact of the overlap on defences, interim injunctions and damages

Abstract

Following the enactment of the Human Rights Act 1998, the English law recognised direct protection of the right to privacy under the tort of misuse of private information (MOPI) by virtue of the House of Lords’ judgment in the landmark case of Campbell v MGN 2004. The development of this emergent tort led it to acutely overlap with the subject matter of defamation law for two major reasons. Firstly, according to the Strasbourg jurisprudence, the interest of reputation, traditionally protected under defamation law, has been subsumed within the protective remit of the private life rights guaranteed by the Article 8 ECHR. Secondly, the false information, initially protected under the defamation law once it is defamatory, may also fall within the scope of the MOPI once it is private according to the authority of McKennitt v Ash 2006. Within this thesis, it is argued that any potential overlap would be practically unavoidable in the event of information being false, private and defamatory. The overall contribution to knowledge made by this thesis is to analytically address the implications of the overlap on the defences, interim injunction and damages, using a multi-perspectival approach. In doing this, it seeks out to fulfil three objectives. Firstly, it examines the applicability of the defences of defamation in privacy law and the potential harmonisation between defences to achieve a coherent protection to the freedom of expression. Secondly, it demonstrates the effectiveness of the likelihood test based on Article 12 (3) Human Rights Act 1998 (HRA) over the Bonnard v Perryman test concerning the application of interim injunction. Thirdly and finally, it analyses the impact of the damages awarded in order to address the reputational harms on the damages awarded in privacy.