1. [2004] UKHL 22, [2004] 2 AC 457.

2. Morgan, J. Privacy, confidence and horizontal effect: hello trouble’ (2003) 62 Cambridge Law Journal 444;CrossRefGoogle Scholar A Schreiber ‘Confidence crisis, privacy phobia: why invasion of privacy should be independently recognised in English law’[2006] Intellectual Property Quarterly 160; A Sims ‘A shift in the centre of gravity: the dangers of protecting privacy through breach of confidence’[2005] Intellectual Property Quarterly 27.

3. Markesinis, BS et al Concerns and ideas about the developing English law of privacy (and how knowledge of foreign law might be of help)’ (2004) 52 The American Journal of Comparative Law CrossRefGoogle Scholar133 at 207.

4. See also T Aplin ‘The development of the action for breach of confidence in the post-HRA era’[2007] Intellectual Property Quarterly 19; Moreham, N ‘Privacy in the common law: a doctrinal and theoretical analysis’ (2005) 121 Law Quarterly Review 628;Google Scholar

5. Douglas v Hello! (No 3) [2005] EWCA Civ 595, [2006] QB 125 at [53].

6. Coco v A N Clark (Engineers) Ltd [1969] RPC 41.

7. See Keene LJ in Douglas v Hello! [2001] QB 967 at [175]: there is ‘no watertight division between the two concepts’.

8. Cf Wacks, R. Privacy and Press Freedom (London: Blackstone Press, 1995) pp 10–21.Google Scholar

9. See, eg, English Law Commission Breach of Confidence Report No 110, Cmnd 8380, para 2.3.

10. Breach of confidence, even in its extended form, protects only one aspect of privacy, ie the unwanted disclosure of true private facts. It does not cover the collection of information nor the unwanted intrusion into the life of another; see Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406.

11. See, further, Richardson, M. Breach of confidence, surreptitious or accidentally obtained information and privacy: theory versus law’ (1994) 19 Melbourne University Law Review 673.Google Scholar For a discussion of the relationship of breach of confidence and fiduciary duties, see LS 594.

12. Megarry J suggested in Coco, above n 6, at 48, that a duty of confidentiality arises ‘if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence’.

13. [1990] 1 AC 109.

14. Ibid, at 281. Lord Hoffmann describes this statement of principle as ‘now firmly established’: Campbell v MGN, above n 1, at [48].

15. Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134.

16. Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444.

17. See, eg, Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at 807.

18. Von Hannover v Germany (2005) 40 EHRR 1 at para 57.

19. [2001] QB 967 at [125] per Sedley LJ.

20. Ibid, at [71].

21. Ibid, at [126]. See also Butler-Sloss P in Venables v Newsgroup Newspapers [2001] 1 Fam 430.

22. Wainwright v Home Office, above n 10, at [30].

23. Ibid, at [35].

24. Ibid, at [30].

25. A v B plc [2002] EWCA Civ 337, [2003] QB 195 at [4]; Lindsay J in Douglas v Hello! [2003] EWHC 786 (Ch), [2003] 3 All ER 996 at [229]: ‘no relevant hole exists in English law’.

26. Campbell v MGN, above n 1, at [17], referring to Lord Woolf CJ in A v B plc, above n 25, at [11](iv).

27. A v B plc, ibid, at [11](ix) per Lord Woolf CJ. In Campbell v MGN, above n 1, Lord Hope of Craighead approved of Lord Woolf CJ’s statement and proposed that such a reasonable expectation of privacy will arise where information is ‘obviously private’ (at [96]).

28. Cases following Campbell v MGN, above n 1 include HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776, [2007] 2 All ER 139; McKennitt v Ash [2005] EWHC 3003 (QB), [2006] EMLR 10.

29. Markesinis et al , above n 3; Sims, above n 2; Mulheron, above n 2; Schreiber, above n 2; focusing on Australian Law: Caldwell, J. Protecting privacy post “Lenah”: should the courts establish a new tort or develop breach of confidence’ (2003) 26 UNSW Law Journal 90.Google Scholar

30. Most recently, the Court of Appeal in Douglas v Hello! (No 3), above n 5, at [53].

31. Hosking & Hosking v Runting[2004] NZCA 34, [2005] 1 NZLR 1; critical of this decision: Geddis, A. Hosking v Runting: a privacy tort for New Zealand’ (2005) 13 Tort Law Review 5.Google Scholar

32. Fenwick, H and Phillipson, G. Media Freedom under the Human Rights Act (Oxford: Oxford University Press, 2006) p 807.Google Scholar But see Gault P and Blanchard J, who regard damages as the ‘primary remedy’; see Hosking & Hosking v Runting, above n 31, at para 149.

33. Douglas v Hello!, above n 7; A v B plc, above n 25; Cream Holdings v Banerjee [2003] EWCA Civ 103, [2003] Ch 650; Cream Holdings v Banerjee [2004] UKHL 44, [2005] 1 AC 253.

34. American Cyanamid Co v Ethicon Ltd [1975] AC 396: if the matter passes the threshold test of a serious issue to be tried, the court balances whether the risk of injustice done to the claimant in withholding the injunction is greater than the risk of injustice done to the defendant if the injunction were ordered. Injustice in this case means which party is likely to suffer the greater irreparable damage if they were required to pursue their rights in a subsequent trial.

35. Cream Holdings v Banerjee [2003] EWCA Civ 103, [2003] Ch 650; Cream Holdings v Banerjee [2004] UKHL 44, [2005] 1 AC 253, even though it is not necessary that success is more likely than not (at [16]).

36. This is evident from cases as early as Prince Albert v Strange (1849) 2 De G & Sm 652, 64 ER 293; Duchess of Argyll v Duke of Argyll [1967] Ch 302.

37. Campbell v Frisbee [2002] EWCA Civ 1374, [2003] EMLR 3; HRH the Prince of Wales v Associated Newspapers Ltd, above n 28, at [65]–[67].

38. The interest of OK! was purely commercial. The magazine wanted to publish the photographs to entertain its buyers and readers – and in that respect had no different interests than its rival magazine Hello!, who had already printed the issue which contained the photographs and would have lost it if an injunction had been granted. In these circumstances, Brooke LJ held that ‘the balance of convenience, as between OK! and Hello!,…favours Hello! because it might be very difficult for Hello! to compute its losses in money terms if issue 639 was killed, whereas OK! did not appear to face the same difficulties if publication was allowed’: Douglas v Hello!, above n 7, at [99].

39. But see the Court of Appeal’s subsequent critical comments on this aspect of the decision in Douglas v Hello! (No 3), above n 5, at [251]–[259]; see also L Brazell ‘Confidence, privacy and human rights: English law in the twenty-first century’ [2005] EIPR 405 at 410.

40. Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134; Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444.

41. International Corona Resources Ltd v Lac Minerals Ltd[1989] 2 SCR 574, 615, 615 DLR (4th) 14 per Sopinka, J.; Gurry, F. Breach of Confidence (Oxford: Clarendon Press, 1984) pp 25–57;Google Scholar

42. Seager v Copydex Ltd [1967] 1 WLR 923 at 931.

43. Eg Capper, D Damages for breach of the equitable duty of confidence’ (1994) 14 LS 313;Google Scholar Stuckey-Clarke, above n 41; more recently, but with a focus on Australian law,

44. An exception may be a case where the press publishes statements which were agreed to be subject to authorisation prior to going to press, to be ‘off-record’, or to be treated confidentially.

45. A v B plc, above n 25, at [11](ix) per Lord Woolf CJ.

46. See now Supreme Court Act 1981 s 50.

47. Lord Goff of Chieveley in A-G v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 286.

48. See Malone v Metropolitan Police Commissioner [1979] 1 Ch 344 at 360.

49. Seager v Copydex (No 2) [1969] RPC 374 (order as to damages following breach of purely equitable obligation of confidence); but see, on the other hand, the discussion by Harris J in Talbot v General Television Corporation Pty Ltd [1980] VR 224 at 241.

50. Nocton v Lord Ashburton[1914] AC 932; Re Dawson (Desceased)[1966] 2 NSWR 211; Canson Enterprises Ltd v Boughton and Co[1991] 85 DLR (4th) 129; Toulson, RG and Phipps, CM Confidentiality (London: Sweet & Maxwell, 2nd edn, 2006)Google Scholar para 2-083; Stuckey-Clarke, above n 41, p 72.

51. Finn, PD, Fiduciary Obligations (Sydney: Lawbook Co, 1977) p 176;Google Scholar Capper, above n 43, at 328ff; cf

52. Aquaculture Corp v New Zealand Mussel Co Ltd [1990] 3 NZLR 299 at 301; A-G (UK) v Wellington Newspapers Ltd [1988] 1 NZLR 172 at 179.

53. Most prominently by RP Meagher, Heydon, JD and Leeming, MJ Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (Sydney: Lawbook Co, 4th edn, 2003); also Gronow, above n 43.Google Scholar

54. Beatson, J. Damages for breach of confidence’ (1991) 107 Law Quarterly Review 209 at 210 Google Scholar(‘approach clearly to be welcomed’); P Birks ‘The remedies for abuse of confidential information’[1990] LMCLQ 460 at 464; at para 8-48; at para 27.35.

55. F Gurry Breach of Confidence (Oxford: Clarendon Press, 1984) p 57; Stuckey-Clarke, above n 41, p 72; see also Cadbury Schweppes Inc v FBI Foods (1999) 167 DLR (4th) 577 (SCC) per Binnie J.

56. An early proponent of this view was PM North ‘Breach of confidence: is there a new tort?’ [1972] Journal of the Society of Public Teachers of Law 149; see now, eg, Toulson and Phipps, above n 50, para 2-089.

57. Douglas v Hello!, above n 7, at [117]; see also Venables v Newsgroup Newspapers, above n 21, at [81] per Butler-Sloss P; Campbell v MGN, Ltd [2002] EWCA Civ 1373, [2003] QB 633 at [69] per Phillips MR.

58. Above n 1, at [14]–[15].

59. Seager v Copydex Ltd (No 2)[1969] 1 WLR 809. But see also Dowson & Mason Ltd v Potter[1986] 1 WLR 1419 at 1426 per Slade LJ; Richardson, M. Owning secrets: “property” in confidential information?’ in Robertson, A. (ed) The Law of Obligations: Connections and Boundaries (London: UCL Press, 2004) p 145.Google Scholar

60. Douglas v Hello! Ltd [2003] EWHC 786 (Ch), [2003] 3 All ER 996 at [193] per Lindsay J. See also Douglas v Hello! Ltd (No 3), above n 5, where the Court of Appeal – in determining the applicable law – concluded ‘not without hesitation’ that the claim is not to be treated as a ‘tort’, but rather as a ‘restitutionary claim for unjust enrichment’, at [96]–[97]. In the light of the remedies pursued and granted, this conclusion seems surprising.

61. Coco v A N Clark, above n 6, at 48.

62. Ibid, at 48; also left open by Lord Goff of Chieveley in A-G v Guardian Newspapers (No 2), above n 47, at 281–282. Knight-Bruce V-C stated in Prince Albert v Strange, above n 36, at 312, that relief would be granted even where the publication would be ‘creditable or advantageous’ to a claimant.

63. [1980] HCA 44, (1980) 147 CLR 39 at 52; see Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73 per Gummow J: ‘The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff. The plaintiff comes to equity to vindicate his right to observance of the obligation, not necessarily to recover loss or to restrain infliction of apprehended loss’ (at 112).

64. Cornish, WR and Llewelyn, D Intellectual Property: Patents, Copyright, Trade Marks, and Allied Rights (London: Sweet & Maxwell, 7th edn, 2003)Google Scholar para 8-39.

65. Eg McHugh JA in A-G (UK) v Heinemann (1987) 75 ALR 353 at 454 (SCNSW).

66. [1990] 1 AC 109 at 256; similarly Lord Griffiths (at 270): potential loss of friendship as sufficient detriment.

67. Ibid, at 255.

68. Dowson & Mason v Potter [1986] 1 WLR 1419 (CA) (trade secret) referring to General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1975] 1 WLR 819 at 824; Gorne v Scales [2006] EWCA Civ 311.

69. Lush J in Talbot v General Television Corporation Pty Ltd [1980] VR 224 at 254; see also English Law Commission, above n 9, para 6.114; Stuckey-Clarke, above n 41, pp 76ff.

70. Douglas v Hello! Ltd (No 3), above n 5, at [114].

71. Ibid, at [113].

72. See only General Tire & Rubber Co v Firestone Tyre & Rubber Co, above n 68.

73. Phillips v Homfray (1883) 24 Ch D 439; Strand Electric Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246.

74. [1969] RPC 374.

75. [1992] 1 WLR 840 at 856D (Ch D).

76. Sir Donald Nicholls V-C in Universal Thermosensors v Hibben [1992] 1 WLR 840 at 856D (Ch D).

77. Eg Ministry of Defence v Ashman [1993] 2 EGLR 102 at 105.

78. Sharpe, RJ and Waddams, SM Damages for lost opportunity to bargain’ (1982) 2 Oxford Journal of Legal Studies 290;CrossRefGoogle Scholar more recently, t 125; see also Jaggard v Sawyer[1995] 1 WLR 269; WWF – World Wide Fund for Nature v World Wrestling Federation[2006] EWHC 184 (Ch), [2006] FSR 38.

79. Inverugie Investments Lt v Hackett [1995] 1 WLR 713 at 718 (PC). In A-G v Blake [2001] AC 268, Lord Nicholls of Birkenhead suggests that user damages are ‘probably best regarded as an exception to the general rule’ (at [20]), ie a special category of common law damages; see also Hendrix Experience Enterprises Ltd v PPX [2003] EWCA Civ 323, [2003] 1 All ER (Comm) 830.

80. Douglas v Hello! Ltd (No 3), above n 5, at [243]ff. Lindsay J, at first instance, also recognised those difficulties (see Douglas v Hello! Ltd [2003] EWHC 2629 (Ch), [2004] EMLR 13 at [14]) but did not resolve them because he was satisfied that a notional licence fee, which he estimated at £125,000, would in any event be lower than the conventional damages claim (see at [60]–[65]).

81. At [249]. This notwithstanding, the court accepted the actual figure arrived at by the trial judge as a matter of ‘valuation opinion’, at [250]. Friedmann, D ‘Protection of entitlements via restitution – expectancies and privacy’ (2005) 121 Law Quarterly Review 400 at 419 Google Scholarregards this reasoning as unconvincing.

82. [2001] EMLR 329.

83. [1977] 1 WLR 760 (CA).

84. Wacks, R. Personal Information: Privacy and the Law (Oxford: Clarendon Press, 1993) 123;Google Scholar

85. Cf English Law Commission, above n 9, para 4.82.

86. Addis v Gramophone Co [1909] AC 488 (humiliating manner of dismissal from employment); Watts v Morrow [1991] 1 WLR 1421 (breach of contract to survey a house for prospective buyer).

87. [1990] 1 Ch 359.

88. [1909] AC 488.

89. [1987] ICR 700. Scott J did, however, not discuss whether the case might fall outside the general rule.

90. [1991] 1 WLR 1421 at 1445.

91. [2002] UKHL 49, [2002] 2 AC 732 at 750.

92. Archer v Williams[2003] EWHC 1670, [2003] EMLR 38. For further analysis of the confidentiality obligations in close personal employment relationships, see McInnes, R. ‘Fragrant women, flagrant breaches’ (2004) 4 Human Rights and UK Practice 6.Google Scholar

93. Cornelius v De Taranto [2001] EMLR 12 (preparation of a medico-legal report).

94. On the other hand, it has been held that, due to the existence of a statutory scheme, there is no common law right to damages for the non-pecuniary losses resulting from an unfair dismissal, see Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518; see also Dunnachie v Kingston upon Hull [2004] UKHL 36, [2005] 1 AC 226.

95. [2001] EMLR 12.

96. Ibid, at [66]. The Court of Appeal upheld the finding of liability and did not consider the damages issue: Cornelius v de Taranto [2001] EWCA Civ 1511, [2002] EMLR 6.

97. Ibid, at [77].

98. Morland J also referred to the fact that damages for injury to feelings have long been available for defamation and copyright infringement.

99. English Law Commission, above n 9, para 4.82.

100. Ibid, para 6.106.

101. Thompson, M. Breach of confidence and privacy’ in Clarke, L (ed) Confidentiality and the Law (London: Lloyd’s of London, 1990) p 81;Google ScholarPubMed para 10-13; Cornish, above n 54, para 8-042.

102. In Khodaparast v Shad [2000] 1 WLR 618, the English Court of Appeal accepted that aggravated damages for injury to feelings are also available for malicious falsehood provided that the claimant proves special damage or is entitled to sue by reason of Defamation Act 1952 (UK), s 3.

103. See also Williams v Settle [1960] 1 WLR 1072 at 1086–1087. Flagrancy damages are, however, not directly in point. This is because additional damages can be of aggravated or exemplary nature (see Polygram Pty Ltd v Golden Editions Pty Ltd (1997) 76 FCR 565) and are – as far as they contain a punitive element – not strictly compensation for mental distress. For Australia, see Milpurrurru v Indofurn (1994) 54 FCR 240.

104. Sex Discrimination Act 1975, s 66(4) and (5); Vento v Chief Constable of the West Yorkshire Police (No 2) [2002] EWCA Civ 1871, [2003] IRLR 102 (injury to feelings); Race Relations Act 1976 (UK), s 57(4); Disability Discrimination Act 1995, s 8(4).

105. Data Protection Act 1998, s 13(2) (compensation for distress), see further Johnson v Medical Defence Union (No 2) [2006] EWHC 321 (Ch), (2006) 89 BMLR 43 at [210]–[219]. On the exemption in s 32(1) and (2) applying to data processing for journalistic purposes where the data controller reasonably believes the publication to be in the public interest, see further Campbell v MGN, above n 57.

106. For example, see Szarfer v Choder (1986) 27 DLR (4th) 388 at 405; Frame v Smith [1987] 2 SCR 99 at 151 (per Wilson J dissenting). But contrast Paramisavam v Flynn (1998) 90 FCR 489 at 504 (Full Federal Court of Australia).

107. [1992] 2 NZLR 559; see also Watson v Dolmark Industries Ltd [1992] 3 NZLR 311 at 316 per Cooke P.

108. Following the distinction drawn by contract law, there is a tendency to refuse compensation for mental distress where the fiduciary relationship is a purely commercial one: Watson v Dolmark Industries, ibid, at 316 per Cooke P. (in the form of general damages).

109. The Court of Appeal in Cornelius v De Taranto, above n 96, did not take issue with Morland J’s finding on liability and damages.

110. The Court of Appeal confirmed the award of aggravated damages, at [138].

111. Von Hannover v Germany, above n 18, at para 57.

112. English Law Commission, above n 9, para 6.106.

113. Ie those who are not themselves at risk of physical injury: Page v Smith [1996] 1 AC 155, [1996] 2 All ER 736 at 767.

114. [2003] EWHC 1670, [2003] EMLR 38.

115. Ibid, at [76].

116. Ibid, at [74].

117. Ibid, at [74]–[76].

118. The issue is rarely discussed in relation to contract damages for mental distress. It may be that due to their exceptional nature the problem of how to take into account the claimant’s subsequent conduct rarely arises in a contractual context.

119. Kelly v Sherlock (1866) LR 1 QB 686 at 698 per Blackburn J; Broome v Cassell & Co Ltd [1972] 1 AC 1027 at 1071G–H per Lord Hailsham; Campbell v News Group Newspapers [2002] EWCA Civ 1143, [2002] EMLR 43 at [33] and [119].

120. However, since a court has considerable latitude in arriving at a fair and reasonable award, it is likely that a claimant’s unjustifiable conduct towards a defendant will be taken as an indication that she herself does not value another’s peace of mind highly and, on that basis, that her upset is likely to be less than usual.

121. The foreseeability test for remoteness, first established in Wagon Mound [1961] AC 388 (PC), has particular relevance in negligence actions; see, eg, Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 AC 190 at 209. Torts that protect the claimant from intentional or direct interference, such as deceit or trespass, follow stricter rules of liability, generally holding the defendant liable for all damage actually caused by the interference; see, eg, Smith New Court Securities v Citibank NA [1997] AC 254.

122. Lord Browne-Wilkinson in Target Holdings Ltd v Redfern[1996] AC 421 at 434; Pilmer v Duke Group Ltd (in liq)[2001] HCA 31, (2001) 207 CLR 165; critical: Burrows, A. Remedies for Torts and Breach of Contract (Oxford: Oxford University Press, 3rd edn, 2004) p 604.Google Scholar

123. Douglas v Hello!, above n 25, at [48], [53] and [57]; Douglas v Hello! Ltd (No 3), above n 3, at [238]–[242].

124. In Home Office v Wainwright [2001] EWCA Civ 2081, [2002] 3 WLR 405 at [113], Buxton LJ also doubted that a defendant to a privacy claim should be liable for all damage caused by this breach (in the context of a privacy tort) without limit on the basis of remoteness principles.

125. Hilton v Barker Booth & Eastwood[2005] UKHL 8, [2005] 1 WLR 567; Bristol and West Building Society v Mothew[1998] Ch 1; O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262 at 274–275 per Spigelman CJ; Pilmer v Duke Group Ltd, above n 122; Permanent Building Society (in liq) v Wheeler (1994) 11 WAR 187 at 247 per Ipp J. See, for further detail, O’Meara, M., ‘Causation, remoteness and equitable compensation’ (2005) 26 Australian Bar Review 51.Google Scholar

126. Brickenden v London Loan & Savings Co [1934] 3 DLR 465; Pilmer v Duke Group Ltd, above n 122.

127. Pilmer v Duke Group Ltd, above n 122; Youyang Pty Ltd v Minter Ellison Morris Fletcher [2003] HCA 15, (2003) 212 CLR 484.

128. Bristol and West Building Society v Mothew, above n 125, at 17 per Millett LJ; Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 at 681; doubted in Youyang Pty Ltd v Minter Ellison Morris Fletcher, above n 127, at paras 39–40.

129. Stuckey-Clarke, above n 41, p 73.

130. Archer v Williams, above n 92, at [76].

131. Cornelius v De Taranto, above n 93, at [81]; cf the factors discussed in X v A-G [1997] 2 NZLR 623 at 639.

132. Above n 92, at [77], even though Jackson J did not state whether the prominence of the claimant, and therefore the level of public scrutiny she is accustomed to, is likely to increase or decrease the award.

133. Cornelius v De Taranto, above n 93. See also McKennitt v Ash, above n 28, where a Canadian folk singer took action against a former friend who had published a book revealing personal details of the claimant’s life. Eady J awarded an injunction against future publication of the memoirs in their existing form and ‘a relatively modest’ (at [162]) £5000 for hurt feelings.

134. Above n 80, at [57].

135. Douglas v Hello! (No 3), above n 5, at [110].

136. [2002] EWHC 499 (QB), (2002) 146 SJ LB 107 at [136].

137. Ibid, at [133].

138. Privacy and reputation are interests which both emanate from, and reflect, human dignity. This has been acknowledged in the jurisprudence of the US Supreme Court as well as the Supreme Court of Canada; see eg Stewart J’s influential judgment in Rosenblatt v Baer (1966) 383 US 75 at 92: ‘The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being – a concept at the root of any decent system of ordered liberty’. This statement was cited with approval in Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 at para 107. See also New South Wales Law Reform Commission Defamation Report No 75 (1995) para 2.3: ‘Our notion of reputation, as well as the protection which we afford it, needs to reflect the interest which individuals have in their honour and dignity, in their standing in the community’.

139. In the six defamation actions until 2003 in which the Court of Appeal replaced or confirmed jury awards, the damages stood between £25,000 and £110,000; see Kiam v MGN Ltd [2003] QB 281.

140. This is the ceiling now effectively established for compensatory (general) damages in defamation: Campbell v News Group Newspapers, above n 119; Cleese v Clark [2003] EWHC 137 (QB), [2004] EMLR 37 at [33] per Eady J.

141. Broome v Cassell & Co Ltd [1972] 1 AC 1027 at 1071; Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44, [2006] 3 WLR 642 at [24] and [123]; for Australia, see Carson v John Fairfax & Sons Ltd [1993] HCA 31, (1993) 178 CLR 44 at 60 per Mason CJ, Deane, Dawson and Gaudron JJ; Rogers v Nationwide News Pty Limited [2003] HCA 52, (2003) 216 CLR 327 at para 60 per Hayne J.

142. See The Gleaner Co Ltd v Abrahams[2003] UKPC 55, [2004] 1 AC 628 at 647 (PC). On the difficulties that the vindication function poses for the assessment of damages in defamation actions, see Witzleb, N Geldansprüche bei Persönlichkeitsverletzungen durch Medien (Tübingen: Mohr Siebeck, 2002) pp 286ff.Google Scholar

143. Rantzen v Mirror Group Newspapers (1986) Ltd [1993] 2 WLR 953; John v Mirror Group Newspapers [1997] QB 586.

144. Joyce v Sengupta [1993] 1 WLR 337; Khodaparast v Shad [2000] 1 WLR 618 (both malicious falsehood); but see Foaminol Laboratories Ltd v British Artid Plastics Ltd [1941] 2 All ER 393 at 398–400 (financial loss compensable as damages for breach of contract); confirmed in Mahmud v BCCI SA (in liq) [1998] AC 20 at 40; see also Spring v Guardian Assurance [1995] 2 AC 96 (negligence); Johnson v Medical Defence Union (No 2) [2006] EWHC 321 (Ch), (2006) 89 BMLR 43 (breach of Data Protection Act 1998).

145. John v Mirror Group Newspapers, above n 143; but see also the critical comments of Lord Hoffmann in The Gleaner Co Ltd v Abrahams, above n 142, at [49]–[56].

146. This is despite the fact that English courts draw a sharp distinction between breach of confidence and defamation in applications for interim injunctions and continue to impose prior restraint in defamation cases only in exceptional circumstances; see Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462, [2005] QB 972 confirming the rule in Bonnard v Perryman [1891] 2 Ch 269.

147. As well as the interests protected by anti-discrimination statutes.

148. [1964] AC 1129.

149. Overlap can occur because the defendant’s malice or other state of mind is relevant for the assessment of exemplary damages, and, to the extent that it affects the harm sustained by the claimant, also for the assessment of aggravated damages.

150. English Law Commission Aggravated, Exemplary and Restitutionary Damages Report No 247 (1997), para 2.11.

151. The English Law Commission proposed to assimilate aggravated damages with damages for mental distress; see paras 2.39–2.43.

152. Above n 136.

153. Peter Pan Manufacturing Corp v Corsets Silhouette [1964] 1 WLR 96; A-G v Guardian Newspaper (No 2), above n 47; A-G (UK) v Heinemann [1987] HCA 45, (1988) 167 CLR 30.

154. Above n 47, at 286.

155. Ibid, at 256.

156. Ibid, at 255–256; see also G Jones ‘Breach of confidence – after Spycatcher’ (1989) 42 Current Legal Problems 49 at 58.

157. Cf McKeough, J., Stewart, A. and Griffith, P. Intellectual Property in Australia (Chatswood: LexisNexis Australia, 3rd edn, 2004)Google Scholar para 4.28.

158. [2001] 1 AC 268. The contract was an undertaking not to divulge any official information gained as a result of the claimant’s employment with the Crown.

159. Ibid, at 279–280 and 287–288 with reference to Hogg v Kirby (1803) 8 Ves Jun 215 at 223, and Snepp v United States (1980) 444 US 507.

160. Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323, [2003] 1 All ER (Comm) 830 and Esso Petroleum Co Ltd v Niad Ltd [2001] EWHC Ch 458.

161. Above n 158, at 285. Lord Nicholls of Birkenhead used this argument to extend the remedy of an account to breaches of contract.

162. Cf Douglas v Hello! (No 3), above n 5, at [249].

163. Ibid, at [249]. But it appears that the court still considered the action to be in its equitable jurisdiction; see [186].

164. L Clarke ‘Remedial responses to breach of confidence: the question of damages’ (2005) 24 Civil Justice Quarterly 316 at 322.

165. Ibid, at 322.

166. Eg Seager v Copydex Ltd[1969] 1 WLR 923. Even though the restitutionary awards for proprietory torts tend to be based on a reasonable licence fee for the unauthorised use; see Worthington, S. Reconsidering disgorgement for wrongs’ (1999) 62 Modern Law Review 62.CrossRefGoogle Scholar

167. Ie where exemplary damages would otherwise be available: eg English Law Commission, above n 150, recommendation 7-9 and draft Bill, cl 12; Birks, P. An Introduction to the Law of Restitution (Oxford: Clarendon Press, 1989) pp 326–327 Google Scholar(cynical breach).

168. Seager v Copydex Ltd, above n 166. Lack of knowledge can also be a bar to an account of profits in cases of intellectual property infringements, eg Patents Act 1977 (UK), s 62(1).

169. Above n 158.

170. A-G v Guardian Newspapers (No 2), above n 47, at 262 per Lord Keith of Kinkel; at 266 per Lord Brightman; at 276 per Lord Griffiths; at 292 per Lord Goff of Chieveley.

171. Ibid, at 266.

172. Ibid, at 262.

173. [1964] AC 1129.

174. [1993] QB 507.

175. [1964] AC 1129 at 1226–1227.

176. Broome v Cassell & Co Ltd, above n 119, at 1079.

177. [1993] QB 507.

178. Kuddus v Chief Constable of Leicestershire Police [2001] UKHL 29, [2001] 2 AC 122.

179. Lamb v Cotogno (1987) 164 CLR 1; Gray v Motor Accident Commission (1998) 196 CLR 1.

180. See, eg, Norberg v Wynrib (1992) 92 DLR (4th) 440 at 505–507 per McLachlin J (SCC) (breach of fiduciary duty); Whiten v Pilot Insurance Co (2002) 209 DLR (4th) 257.

181. Bottrill v A [2003] 1 AC 449, [2003] NZLR 721 (PC).

182. Harris v Digital Pulse (2003) 53 NSWLR 298 at 422 per Heydon JA; at 312 per Spigelman CJ who more narrowly rejected an analogy in the circumstances of the case); Mason P (dissenting) favoured a tort analogy; see also Burrows, A. Remedial coherence and punitive damages in equity’ in Degeling, S. and Edelman, J. (eds) Equity in Commercial Law (Sydney: Lawbook Co, 2005) p 381;Google Scholar RP Meagher, JD Heydon and Leeming, above n 53, para 23-020.

183. Aquaculture Corporation v New Zealand Green Mussel Co [1990] 3 NZLR 299 (NZCA); see also X v A-G [1997] 2 NZLR 623 at 631f per Williams J (HC).

184. [2002] 3 NZLR 414 at paras 74–75.

185. English Law Commission, above n 150, para 5.42; ICF Spry Equitable Remedies (Sydney: Lawbook Co, 6th edn, 2001) p 636 and Burrows, above n 182, p 408, also do not see sufficient reasons why equity should not impose punitive awards.

186. [2003] EWHC 786 (Ch), [2003] 3 All ER 996 at [272].

187. See also Lord Scott of Foscote in Kuddus v Chief Constable of Leicestershire Police, above n 178.

188. This fact is in itself not sufficient ground for an exemplary award: Broome v Cassell & Co, above n 119, at 1079 per Lord Hailsham LC.

189. It has to be borne in mind, however, that exemplary damages potentially have a greater deterrent effect because they can exceed the profits made by the defendant.

190. See also Fenwick and Phillipson, above n 32, p 806.

191. Human Rights Act 1998 (UK), s 12(1) and (4). See, in the context of defamation, Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44, [2006] 3 WLR 642 at [18]–[19]; Toulson and Phipps, above n 50, para 9-043.

192. While the above analysis concentrated on the scope of liability for injury to feelings, the considerations also apply to liability for economic loss.

193. In his seminal work on Breach of Confidence (Oxford: Clarendon Press, 1984) F Gurry already remarked that ‘[t]he role of the jurisdictional basis in limiting the availability of remedies is further diminished by the courts’ adroitness in switching from one basis to another where the action demands’ (p 27).

194. In particular, the significance of the defendant’s state of mind when committing the wrong.

195. The Court of Appeal appears to have assumed that such a claim would be of equitable nature: there is ‘no reason in principle why equity should not protect the opportunity to profit from confidential information about oneself’; Douglas v Hello! (No 3), above n 5, at [113].

196. Above n 1.

197. Ibid, at [92]. Baroness Hale of Richmond declared as ‘basic principles’ that the ‘the relevant vehicle [for privacy protection] will usually be the action for breach of confidence’ (at [132]) and that ‘our law cannot, even if it wanted to, develop a general tort of invasion of privacy’ (at [133]). Lord Carswell agreed with the conclusions, at [161] and [169].

198. Ibid, at [14].

199. Ibid, at [14].

200. Ibid, at [52].