This week, the Court of Appeal is grappling with a difficult and important question: how do you value an invasion of privacy? In other words, where someone has suffered a breach of their privacy rights, how do you go about determining the compensation they should receive?
The appeal is brought by MGN against the judgment of Mann J in Gulati & Ors v MGN Ltd  EWHC 1482 (Ch). That judgment concerned victims of blagging and phone-hacking (including Paul Gascoigne, Sadie Frost and Alan Yentob) for which Mirror Group Newspapers was held responsible.
Mann J awarded the claimants compensation ranging between £85,000 and £260,250. His judgment was ground-breaking, in part due to the size of those awards. (By way of comparison, the previous highest award in a privacy case had been made to Max Mosely, in the region of £60,000 – but most awards have been much lower).
It was also ground-breaking in terms of the methodology adopted to calculate quantum for privacy breaches. Here is how Mann J summarised the rival arguments (paragraph 108; I have underlined the components put forward by the claimants):
“… The case of the claimants is that the compensation should have several elements. There is compensation for loss of privacy or “autonomy” resulting from the hacking or blagging that went on; there is compensation for injury to feelings (including distress); and there is compensation for “damage or affront to dignity or standing”. The defendant disputes this and submits that all that can be compensated for is distress or injury to feelings… It is accepted that such things as loss of autonomy are relevant, but only as causes of the distress which is then compensated for. They are not capable of sustaining separate heads of compensation…”
As is clear from that synopsis, the debate is not just about money, observable cause-and-effect or hard-edged law. The debate also has difficult philosophical and ethical dimensions. It seems that neither society nor the law (which sometimes overlap) has yet got to the bottom of what it really means to have one’s privacy invaded.
In any event, Mann J certainly did his bit to progress that debate. He preferred the analysis of the claimants – hence the large awards they received. See for example his paragraphs 143-144:
“… The tort is not a right to be prevented from upset in a particular way. It is a right to have one’s privacy respected. Misappropriating (misusing) private information without causing “upset” is still a wrong. I fail to see why it should not, of itself, attract damages. Otherwise the right becomes empty, contrary to what the European jurisprudence requires. Upset adds another basis for damages; it does not provide the only basis. I shall therefore approach the consideration of quantum in this case on the footing that compensation can be given for things other than distress, and in particular can be given for the commission of the wrong itself so far as that commission impacts on the values protected by the right.”
The Court of Appeal’s judgment in MGN’s appeal will have a huge impact on the size of awards in privacy cases, and thereby on the privacy litigation landscape itself. It will also no doubt contribute to our understanding of how 21st-century society values (or ought to value) privacy.
What impact will it have on compensation under section 13 of the Data Protection Act 1998?
As with privacy compensation, data protection compensation is having a revolutionary year: see the striking down of section 13(2) in Vidal-Hall v Google  EWCA Civ 311. Traditionally, few people brought claims under section 13 DPA, because it was assumed that they could only be compensated for distress (their primary complaint) if they also suffered financial loss (which mostly they hadn’t). Vidal-Hall overturned that: you can be compensated for distress alone under section 13 DPA. This point will be considered by the Supreme Court next year, but for now, the removal of this barrier to successful section 13 claims is hugely important.
Another barrier, however, lingers: section 13 DPA awards tend to be discouragingly low, from a claimant’s perspective. See most crucially Halliday v Creation Consumer Finance  EWCA Civ 333 (where an award for £750 was made): “the sum to be awarded should be of a relatively modest nature since it is not the intention of the legislation to produce some kind of substantial award. It is intended to be compensation…” (per Arden LJ at paragraph 36).
Increasingly, however, case law emphasises the intimate relationship between data protection and fundamental privacy rights: see for example Vidal-Hall, and last year’s ‘right to be forgotten’ judgment in the Google Spain case.
So, if Mann J’s wide, claimant-friendly approach to quantifying damages is upheld in the privacy context, how long before the same approach infiltrates data protection litigation?
Robin Hopkins @hopkinsrobin