Justifying Gain-Based Remedies for Invasions of Privacy

45 Pages Posted: 16 Jun 2009 Last revised: 22 Oct 2021

See all articles by Normann Witzleb

Normann Witzleb

Monash University - Faculty of Law; The Chinese University of Hong Kong

Date Written: Summer 2009

Abstract

In Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 the House of Lords approved of protecting privacy interests through incrementally developing the existing action for breach of confidence. Lord Hoffmann suggested that this modified cause of action, instead of being based upon the duty of good faith, focuses upon the protection of human autonomy and dignity. This article explores how this change in underlying values affects the availability of gain-based remedies, where breach of confidence is relied upon against the wrongful publication of private information. An account of profits is generally available where a defendant profited from disclosing confidential information in breach of a pre-existing relationship of confidence. It can also be awarded for certain breaches of contractual non-disclosure agreements and to protect proprietary interests. This article argues that these existing rationales for an account of profits can, where they apply in a particular case, also support gain-based relief in a privacy context. The article then considers that the particular nature and vulnerability of privacy make it necessary to allow gain-based relief in circumstances beyond these established categories. In order to provide effective deterrence and protection against commercially motivated infringements, in particular by the media, gain-based remedies should also be available where the privacy invasion is deliberate and a particularly outrageous infringement of the claimant's rights.

Suggested Citation

Witzleb, Normann and Witzleb, Normann, Justifying Gain-Based Remedies for Invasions of Privacy (Summer 2009). Oxford Journal of Legal Studies, Vol. 29, Issue 2, pp. 325-363, 2009, Available at SSRN: https://ssrn.com/abstract=1418380 or http://dx.doi.org/gqp005

Normann Witzleb (Contact Author)

The Chinese University of Hong Kong ( email )

6/F, Lee Shau Kee Building
Shatin, New Territories
Kowloon, Sha Tin
Hong Kong

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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