Compensating for Loss of Dignity and Autonomy in the Misuse of Private Information Tort

Abstract

This chapter examines the conceptual basis for English courts’ recent awards of substantial damages for loss of privacy per se ie damages awarded absent any distress or other consequential harm. It argues that the basis for such awards is provided in English case law itself which says that even in the absence of distress, all actionable breaches of privacy interfere with the dignity and autonomy of the individual. This position, the article argues, is consistent both with widely-held philosophical, sociological and psychological understandings of nature of privacy harms and, as a result, with the reasons why English courts developed the misuse of private information action in the first place. This includes reasoning derived from the jurisprudence on the right to respect for private life in Article 8 of the European Convention on Human Rights 1950 the incorporation of which into English domestic law formed part of the impetus for introducing the privacy right into English privacy law.

The chapter develops these arguments in three parts. In the first part, the author discusses the leading English decisions on damages for misuse of private information. Having considered arguments that damages for the breach itself are designed to ‘vindicate’ the right, the chapter concludes that damages for the loss of privacy itself in fact compensate for the harm to dignity and autonomy inherent in all breaches of privacy. Part II shows that these reasons for protecting privacy breaches align with dominant theoretical conceptions on the relationship between privacy and the protection of dignity and autonomy. Finally, the chapter briefly reflects on how damages for loss or dignity and autonomy fit with other types of damages including those awarded for distress.