Mr Justice Tugendhat recently handed down this decision in the UK High Court (Queen’s Bench Division) recognizing the existence in the UK of a tort of misuse of private information. Recognition of such a tort is the culmination of many years of the UK courts considering how best to deal with issues of what are essentially invasions of privacy, particularly cases dealing with celebrities, and distorting the concept of breach of confidence in order to accommodate such cases.
A number of matters were considered in the case but this note will focus on the key issue of the recognition of a tort of misuse of private information.
This case concerned claims brought by three users of Google in the UK who alleged that Google had misused their private information and acted in breach of confidence and their statutory duties under the Data Protection Act 1998 by tracking and collating information relating to the Claimants' internet usage using the Safari browser in 2011/ 2012, such as which web sites they visited, how frequently they visited the sites, how long they spent on the site and in what order sites were visited.
The essence of their claim is that Google collected information from their computers, and other internet enabled devices, regarding their browsing habits. Each Claimant specified in a Confidential Schedule their individual personal characteristics, interests, wishes and ambitions, which they used as the basis of the claim that ‘they suffered distress, when they learnt that such matters were forming the basis for advertisements targeted at them, or when they learnt that, as a result of such targeted advertisements, such matters had in fact, or might well have, come to the knowledge of third parties who they had permitted to use their devices, or to view their screens.’ [at 22] The Claimants' damage is based upon the harm caused to them by the fact that their apparent interests (deduced from their browsing habits) were used to target advertising to them which disclosed certain information about them based on those interests as evidenced in their online habits. Those advertisements, and the personal information that they disclosed, may have or had been viewed by third parties viewing the claimants’ devices. [at 23] Tugendhat J noted [at 24] whilst targeted advertisements which merely reveal the employment of the user may not cause any damage ‘if the targeted advertisements apparently reveal other information about the users, whether about their personalities, or their immediate plans or ambitions, then if these matters are sensitive, or related to protected characteristics (eg beliefs), or to secret wishes or ambitions, then the fear that others who see the screen may find out those matters, and act upon what they have seen, may well be worrying and distressing.’ Whilst all of the Claimants claimed acute distress and anxiety, none of them claimed to have suffered any discrimination or other direct harm.
(It should be noted that the conduct engaged in by Google during the relevant time had since been discontinued, due to regulatory sanctions brought by the United States Federal Trade Commission, which were settled in August 2012 and US state based consumer actions brought by US State Attorneys-General on behalf of 37 US states and the District of Columbia).
In order to satisfy the requirements of the service out rules, the Claimants framed their argument on a number of grounds, including tort. With respect to this claim, Google argued that the cause of action based on misuse of private information/ breach of confidence was not a tort, that no significant physical or economic harm was suffered by the Claimants and the act complained of was not committed in the jurisdiction.
The issue of whether the claim was based in tort is of most relevance to the consideration of the evolution of the privacy tort. Tugendhat J asserted [at 58] that it was clear that a claim for breach of confidence is not a claim in tort, Kitetechnology BV v Unicor GmbH Plastmaschinen  FSR at 777-778.  However, the position may be different with respect to misuse of private information, as aluded to in Vestergaard Frandsen A/S v Bestnet Europe Ltd  EWHC 1456 (Ch) where Arnold J stated [at 19] that whilst breach of confidence in not a tort (citing Kitetechnology) ‘Misuse of private information may stand in a different position’ (citing Campbell v MGN  2 AC 457 at ).
Tugendhat J then cited directly from Lord Nicholls in Campbell:
‘This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognized clearly in the judgment of Lord Goff of Chiveley in Attorney-General v Guardian Newspapers Ltd (No 2)  1 AC 109, 281. Now the law imposes a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information." (emphasis added)’
Tugendhat J then considered the complexity of issues surrounding the recognition of such a tort in the context of other decisions and the question of service out of jurisdiction. He observed that the privacy tort and the equitable action of breach of confidence, although related, should be treated separately, citing Lord Nicholls in OBG Ltd v Allan and Douglas v Hello!  1 AC 1 at para : "As the law has developed breach of confidence, or misuse of confidential information, now covers two distinct causes of action, protecting two different interests: privacy, and secret ("confidential") information. It is important to keep these two distinct." [at 67] Tugendhat J further bolsters his recognition of the tort of misuse of private information [at 68] noting:
‘there have since been a number of cases in which misuse of private information has been referred to as a tort consistently with OBG and these cannot be dismissed as all errors in the use of the words 'tort''
After this consideration Tugendhat J concludes [at 70] ‘that the tort of misuse of private information is a tort within the meaning of ground 3.1(9).’
With respect to the breach of confidence claim however, Tugendhat J concludes that he is ‘bound by the decision in Kitetechnology to hold that the claim for breach of confidence is not a tort.’ .
Further consideration was then given to the question as to whether the Claimants had suffered any recognizable and relevant damage. Tugendhat J concluded that damages for ‘distress are recoverable in a claim for misuse of private information, eg Mosley v New Group Newspapers Ltd  EMLR 679.’ Therefore the Claimants’ claim for damage fell within the requirements of the rules relating to service out.
On the question of whether the information was private, it was submitted on behalf of Google that the information collected about the Claimants browsing habits was anonymous and not private: ‘The aggregation of such information sent to separate websites and advertising services cannot make it private information. One hundred times zero is zero, so one hundred pieces of non-private information cannot become private information when collected together.’  Tugendhat J rejected this approach, noting that Google would not have gone to effort to collect and collate this information unless it resulted in something of value. Further, the fact that Google personnel do not themselves identify or recognize the identity of people from whom the data is collected. At some point the Claimant becomes identifiable as a result of the collation and use of the information, in this case, at the point where the targeted advertisements become visible on their screen by a third party. Tugendhat J conceded that not all of the generated information would give rise to claims of privacy, in the individual cases the particular types of information identified by the Claimants was private information. (‘These are not generic complaints. They are complaints about particular information about particular individuals, displayed on particular occasions (even though the precise dates and times of the occasions are not identified)’ [at 119].
The novel aspect of this case is the final recognition of a separate tort of misuse of private information. This has evolved in the UK as a consequence of the distortion of the breach of confidence action and the UK Human Rights Act, which required a change of approach to the balancing of various interests in the disclosure and protection of personal information. This certainly would not reflect the situation under Australian law, where the privacy tort has evolved no further than the glimmer in the eye of the High Court in Australian Broadcasting Corporation v Lenah Game Meats in 2001. Of course, in Australia the ALRC is still considering the introduction of a tort for serious invasion of privacy.