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 …
Varuhas, Jason NE, Varieties of Damages for Breach of Privacy (April 23, 2018). Forthcoming in JNE Varuhas and NA Moreham (eds), Remedies for Breach of Privacy (Oxford, Hart Publishing, 2018).