Varieties of Damages for Breach of Privacy

Forthcoming in JNE Varuhas and NA Moreham (eds), Remedies for Breach of Privacy (Oxford, Hart Publishing, 2018)

U of Melbourne Legal Studies Research Paper No. 783

50 Pages Posted: 28 Apr 2018 Last revised: 25 Jul 2018

Abstract

This paper offers a comprehensive account of the law of damages within the action for misuse of private information in English law. The paper interrogates which types of damages are and ought to be available for breach of privacy, and the legal rules and principles governing each form of damages including the approach to quantification. In examining the law of damages the paper considers the nature of the emergent privacy action, arguing that it has shed its equitable origins in breach of confidence and now closely resembles 'vindicatory' actions such as false imprisonment, battery and trespass to land. In turn the remedial approach for breach of privacy increasingly follows that adopted within these torts.

The paper first considers compensatory damages, arguing that a 'vindicatory' model ought to characterise the approach to compensatory damages, and is the prevailing approach in English law following the High Court and Court of Appeal's important decisions in Gulati v MGN Ltd. According to this approach, damages are available for the wrongful invasion of privacy in itself, irrespective of the suffering of material loss. In addition consequential losses are recoverable, including distress, recognised psychiatric illness and financial loss. Damages are available as of right and are not to be analogised with awards of 'just satisfaction' made by the European Court of Human Rights.

The paper then examines non-compensatory damages. The courts are yet to authoritatively determine the availability of such damages for breach of privacy, and the principles governing their award. The paper argues that exemplary damages ought to be available, but quantum should not be so high as to constitute disproportionate interference with free expression. An account of profits should not be available. But if such remedy were to be recognised it ought to be awarded only exceptionally and the criteria for granting an account should follow the normative concerns that underpin the privacy action. Reasonable fee or user damages are one means of measuring loss in property torts; they are not restitutionary. They ought not to be available for breach of privacy as it would be inapt to treat dignitary interests as if they were interests in tradeable commodities. The novel head of 'vindicatory' damages, recognised in a series of Privy Council appeals, should not be available as they would add nothing to existing remedies.

Lastly, the paper considers damages in lieu of an injunction, arguing that these damages compensate for the loss of a legal liberty to enforce primary rights; they are not restitutionary. Such damages ought very rarely to be awarded in the place of an injunction in a case of ongoing, unjustified invasion of privacy.

Keywords: privacy, damages, remedies, tort, breach of confidence, misuse of private information, vindication, compensation, exemplary damages, disgorgement damages, account of profits, user damages, vindicatory damages, Lord Cairns' Act, Gulati, PJS, Morris-Garner, Vidal-Hall

JEL Classification: K13, K3, K40, K41, K42

Suggested Citation

Varuhas, Jason N. E., Varieties of Damages for Breach of Privacy. Forthcoming in JNE Varuhas and NA Moreham (eds), Remedies for Breach of Privacy (Oxford, Hart Publishing, 2018), U of Melbourne Legal Studies Research Paper No. 783, Available at SSRN: https://ssrn.com/abstract=3167091 or http://dx.doi.org/10.2139/ssrn.3167091

Jason N. E. Varuhas (Contact Author)

University of Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
391
Abstract Views
1,475
Rank
138,669
PlumX Metrics