The Future of Breach of Confidence and the Protection of Privacy
7 Oxford U. Commw. L.J. 137 2007
55 Pages Posted: 22 Feb 2014 Last revised: 14 Apr 2014
Date Written: Winter 2007
Using the impetus of the Human Rights Act 1998, English courts have significantly reshaped the law of confidence in an attempt to better protect privacy. This article argues that there is a persuasive case for no longer utilising the equitable action for breach of confidence and instead recognizing a limited tort of privacy, in the form of misuse of private information. This would minimise any possible risk of distortions to the law of confidence as it relates to non-personal information, accord with current judicial practice, and provide a sound basis for awarding compensation for non-pecuniary harm and exemplary damages. Such a tort would also be suitably confined so as to minimise confusion and would be a constitutionally defensible step for the courts to take. Once a tort of misuse of private information is recognised courts can begin the crucial process of articulating and clarifying the internal principles of such a tort, along with its relationship to the ‘old’ law of confidence.
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