Factual and Procedural Background
These appeals arise from orders dated 11 June 2015 made by Judge Mann, awarding substantial damages ranging from £72,500 to £260,250 to eight respondents for misuse of private information through the interception of voicemail messages left on their telephones ("phone hacking"). The appellant, Company A, proprietor of several newspapers including the Daily Mirror and The Sunday People, challenges these awards. The hacking involved unauthorized access to voicemail messages, transcription of these messages, and use of the information obtained in newspaper articles or other journalistic activities. Private investigators were also employed to obtain additional personal information through deceptive means ("blagging"). The respondents are prominent individuals such as actors and sportspeople, whose private information was published in articles or otherwise misused. The judge’s awards included damages for published articles, hacking not resulting in publication, and distress caused by the hacking.
The judge’s detailed judgment was one of the first to analyze how damages for such privacy breaches should be calculated. These appeals serve as test cases amid numerous similar claims and letters of claim against Company A.
Legal Issues Presented
- Whether damages for misuse of private information should be limited to compensation for distress only, or may also include damages for the mere intrusion into privacy.
- Whether the damages awarded were disproportionate when compared with awards in personal injury cases and other established tariffs.
- Whether the damages were disproportionate in comparison with awards made by the European Court of Human Rights ("the Strasbourg Court").
- Whether some elements of the damages awards involved double-counting.
Arguments of the Parties
Appellant's Arguments
- Damages should be confined to compensation for distress and injury to feelings, not for the fact of intrusion into privacy itself.
- Reliance on Vidal-Hall v Google Inc to support limitation of damages to distress only.
- Reference to Murray v Ministry of Defence to argue that nominal damages are appropriate where the claimant suffers no harm or distress.
- Invocation of the Supreme Court decision in R (Lumba) v Secretary of State for the Home Department to assert that vindicatory damages for invasion of private rights are not available.
- Damages awarded were excessive compared to personal injury awards, including severe psychiatric harm guidelines.
- Comparison to libel damages and the need to keep awards within reasonable bounds relative to personal injury compensation.
- Submission that the awards were disproportionate compared to Strasbourg Court awards for just satisfaction under Article 41 of the European Convention on Human Rights.
- Assertion that the awards involved double-counting in three respects: between article damages and general hacking damages; between distress awards and other damages; and failure to account for cumulative effect of multiple articles.
Respondents' Arguments
- Damages may be awarded for misuse of private information beyond distress, compensating for loss of control over private information.
- Reliance on cases awarding damages even where distress was not shown, such as AAA v Associated Newspapers Ltd and Halford v United Kingdom.
- Submission that Vidal-Hall did not restrict damages to distress only, as only distress damages were claimed in that case.
- Distinction drawn between vindicatory damages and compensatory damages that reflect the infringement of privacy rights.
- Argued that personal injury tariffs and discrimination awards are not appropriate comparators for privacy damages.
- Emphasis on the detailed and separate nature of each privacy breach and article, justifying the atomised approach to damages.
- Contended that Strasbourg Court awards for just satisfaction are discretionary and not binding on domestic courts; English law is developing separately in this area.
- Denied that the judge committed any double-counting error and pointed to specific findings where allowances for overlap were made.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Armory Delamirie (1722) 1 Strange 505 |
Allows drawing adverse inferences against wrongdoers who have parted with evidence. |
Used to infer the extent and seriousness of hacking despite incomplete records. |
| AAA v Associated Newspapers Ltd [2012] EWHC 2103 |
Damages can be awarded even if no distress is shown, particularly for privacy breaches involving children. |
Supported awarding damages for misuse of private information beyond distress. |
| Weller v Associated Newspapers Ltd [2014] EMLR 24 |
Similar to AAA; damages awarded for privacy breaches involving children. |
Reinforced the principle that damages may be awarded without distress. |
| Campbell v MGN Ltd [2004] 2 AC 457 |
Privacy lies at the heart of liberty; damages traditionally sought for distress. |
Distinguished from current case where damages awarded for misuse of private information itself. |
| Mosley v News Group Newspapers Ltd [2008] EMLR 20 |
Privacy damages involve vindication of a right, distinct from defamation damages. |
Supported awarding damages for the infringement of privacy rights, not just distress. |
| R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 |
Vindication damages are not available for private rights infringements. |
Distinguished by the court; damages awarded here are compensatory, not vindicatory. |
| Halford v UK (1997) 24 EHRR 523 |
Damages awarded without showing distress for unlawful interception of telephone calls. |
Supported the principle that damages may be awarded for privacy breach without distress. |
| Vidal-Hall v Google Inc [2015] 3 WLR 409 |
Considered damages for misuse of private information under Data Protection Act. |
Held not to limit damages solely to distress; case not helpful on this issue. |
| John v MGN [1997] QB 586 |
Damages for libel should be informed by personal injury damages as a "reality check". |
Referenced in submissions regarding proportionality of privacy awards to personal injury awards. |
| Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 |
Sets bands for injury to feelings damages in discrimination and harassment cases. |
Considered as a comparator but rejected as inappropriate for privacy damages. |
| Thompson v Commissioner of Police for the Metropolis [1998] QB 498 |
Guidance on damages for false imprisonment aligned with personal injury awards. |
Referenced in arguments about the relevance of personal injury tariffs. |
| The Gleaner Co Ltd v Abrahams [2004] 1 AC 628 |
Distinguished libel damages from personal injury damages; economic considerations. |
Used to argue against strict alignment of privacy damages with personal injury awards. |
| R (Sturnham) v Parole Board [2013] 2 AC 254 |
Courts should be guided by Strasbourg Court’s practice on just satisfaction awards. |
Discussed in context of whether domestic privacy damages should align with Strasbourg awards. |
| McKennitt v Ash [2008] QB 73 |
Domestic privacy tort bound up with Articles 8 and 10 of the European Convention on Human Rights. |
Supports relevance of Strasbourg jurisprudence to domestic privacy claims. |
| Murray v Express Newspapers PLC [2009] Ch 381 |
Confirmed Articles 8 and 10 as content of domestic privacy law. |
Referenced in submissions about Strasbourg influence. |
| Spelman v Express Newspapers [2012] EWHC 355 |
Noted that damages for misuse of private information are likely to increase. |
Supports evolving nature of privacy damages. |
| Sadler v Filipiak [2011] EWCA Civ 1728 |
Guidance on assessing damages for multiple injuries and avoiding double-counting. |
Applied analogy to multiple privacy breaches and awards. |
| R v Governor of Brockhill ex parte Evans (No. 2) [1998] QB 1043 |
Award of damages for wrongful deprivation of liberty even if unappreciated at the time. |
Distinguished from cases where no harm or distress was suffered. |
| Armorie v Delamirie |
Legal principle allowing inference of highest value when wrongdoer withholds evidence. |
Applied to infer extent of hacking and damages despite incomplete evidence. |
| Manley v Sartori [1927] Ch 157 |
Equity places burden on wrongdoer in equitable accounting. |
Referenced to support the court’s approach to incomplete hacking records. |
| Gouriet v Union of Post Office Workers and Others [1977] QB 729 |
Rule of law principle that no one is above the law. |
Emphasized in judgment to underline accountability of Company A. |
| Peck v UK (App No. 44647/98) |
Strasbourg Court awarded just satisfaction for privacy breach involving CCTV footage. |
Used to argue Strasbourg awards are modest compared to domestic awards. |
| Lustig-Prean v UK (2001) 31 EHRR 23 |
Strasbourg awarded compensation for grave interferences with private life. |
Referenced to illustrate Strasbourg’s relatively low awards. |
| Armonien v Lithuania [2009] EMLR 7 |
Strasbourg found domestic award disproportionately low for privacy abuse. |
Illustrates Strasbourg’s approach to privacy damages. |
| Avram v Moldova (2015) 61 EHRR 24 |
Strasbourg awarded modest sums for privacy breaches. |
Used to argue Strasbourg awards are much lower than domestic awards. |
Court's Reasoning and Analysis
The court undertook a detailed examination of the facts, the scale of the hacking, and the nature of the privacy breaches. It accepted the judge’s factual findings, including the extensive and serious nature of the hacking and the distress caused to respondents. The court recognized that damages for misuse of private information could be awarded not only for distress but also for the infringement of the right itself, reflecting loss of control over private information.
The court endorsed the judge’s "atomised" approach to damages, awarding separate sums for hacking, blagging by private investigators, individual articles, and general distress, while carefully avoiding double-counting. It rejected the appellant’s argument that damages should be limited to distress alone, distinguishing vindicatory damages from compensatory damages for privacy breaches.
The court considered the relevance of personal injury awards and other tariffs as a "reality check" but held that no precise correlation was required. It found the judge’s awards proportionate given the repeated, serious invasions of privacy over extended periods. The court also addressed the appellant’s submission regarding Strasbourg Court awards, concluding that domestic privacy damages are governed by English law and that Strasbourg awards for just satisfaction are discretionary and not binding on domestic courts.
On the issue of double-counting, the court found the judge was aware of and took steps to avoid it, with no evidence of error. The court emphasized the exceptional nature of the case, the large scale of the hacking, and the significant distress caused.
Holding and Implications
The court DISMISSED the appeals by Company A against the damages awards made by Judge Mann.
The decision confirms that damages for misuse of private information may include compensation for the infringement of privacy rights themselves, not solely for distress. The court validated an atomised approach to damages, awarding separate sums for different types of invasions and related distress, provided double-counting is avoided. The ruling provides important guidance on assessing damages in privacy cases involving phone hacking, emphasizing the seriousness of repeated invasions and the loss of control over private information.
No new tariff or fixed scale for privacy damages was established, reflecting the varied nature of such claims. The ruling underscores the courts’ discretion in balancing proportionality with recognition of the fundamental right to privacy. The decision also clarifies that domestic privacy damages are assessed under English law, with Strasbourg Court awards serving only as a non-binding reference.