Thoroughly knowledgeable,
very pragmatic and
quick-thinking

Chambers Guide

Blog

Keep up to date with our blog articles, latest news and industry developments. See below for the latest posts or use the category listings to hone your search for stories of interest.

Uncle Bucks: £15,000 Privacy damages for Facebook comment

Last week a High Court judge ordered a man to pay £15,000 to his niece for publishing private health information in a Facebook post.

JQL v NTP [2020] EWHC 1349 (QB) relates to an acrimonious and long-lasting family feud which bubbled over into an argument in Facebook comments under a photo in July 2018.

In one comment, the uncle (Uncle) responded to his mother (the claimant’s grandmother) in the comments thread, stating:

 “On my God, can’t believe you’re getting sucked into [the claimant’s mother] and [the niece (Niece)]’s sick world, I know it’s not easy when they’ve been sending sick texts and the endless abusive calls and online abuse – don’t put any more online, you unlike them have your dignity, all your kids are from one man and you’ve never had treatment for mental health and self-harm – leave them to the police – what’s going on with getting the injunction against the 2 sick bitches.”

The Niece almost immediately submitted a takedown request to Facebook and it was removed around three hours later for violating community standards.

The Niece, now 24, had in fact suffered serious mental health problems and had self-harmed for a period starting when she was 14. The claim related to the disclosure of private health information by the Uncle.

The Decision

It was held that the Uncle intended to publish the words complained of, and that he knew in doing so he was disclosing the Niece’s mental health and self-harm and her treatment for it. There was no express relationship of confidentiality, but the Niece had taken steps to ensure only a small number of family and friends knew about such matters. When her mother had told the Uncle about the incidents, it was both stated to be confidential and would have been apparent in the circumstances.

It was noted that the post would only have been seen by a limited number of people, estimated (without expert evidence) at around 20-35. Nevertheless, it had affected day-to-day family relationships and caused ongoing distress and anxiety to the Niece.

There were a number of aggravating factors, particularly relating to how the Uncle responded to the threat of litigation and in the proceedings. These included referring to the Niece’s alleged underage drinking and drug use and saying that he would ensure that she could not pursue her intended career in the law as a result.

The judge awarded £15,000 in damages, which was said to include significant aggravated damages (although the split was not stated): “This was a serious intrusion into JQL’s privacy and an infringement of her autonomy, made considerably worse through this litigation.  Notwithstanding the relatively small number of recipients of the information, I am satisfied that this is a proportionate award.”

The judge also granted an ongoing injunction preventing the Uncle from publishing any further information about the Niece’s mental health or self-harm.

WAB Comment

Although the pre-action correspondence in this matter referred to a GDPR claim and libel, neither of those played a part in the judgment, which was limited to the torts of breach of confidence and misuse of private information. Had the GDPR been discussed, there would have been issues of applicability and, in particular, the exemption for personal or household activities, including social networking (Article 2 and Recital 18, GDPR).

In assessing damages, the judge referred to the recent judgment in Reid v Price [2020] EWHC 594 (QB), in which Katie Price was ordered to pay damages of £25,000 to her ex-partner for disclosing videos, photos and information about their sex life. In that case, the damages were noted to be comparable to personal injury awards for moderately severe psychiatric harm.

Whilst the amount awarded in this case may appear large in the case of a family dispute, it remains roughly in line with the damages previously awarded to individuals not in the public eye, especially considering the aggravating features in the Uncle’s actions. It can be contrasted with the £210,000 awarded to Sir Cliff Richard for the BBC’s coverage of the police raid on his house.

The reference to loss of autonomy also shows that the judge has taken into account recent case law that loss of privacy is a wrong in itself, requiring a remedy regardless of whether distress or other losses are proven.

Finally, it is also worth noting that although the judgment does not deal with costs, in all likelihood the Uncle will also have a significant adverse costs order to pay. In proceedings that lasted nearly two years, with a four-day hearing, that award is likely to be significantly higher than the £15,000 in damages.

If you would like to discuss any privacy or data protection issues, please contact Nick Mitchell.

 

Disclaimer: This article is produced for and on behalf of White & Black Limited, which is a limited liability company registered in England and Wales with registered number 06436665. It is authorised and regulated by the Solicitors Regulation Authority. The contents of this article should be viewed as opinion and general guidance, and should not be treated as legal advice.

This site uses cookies to improve your user experience. By using this site you agree to these cookies being set. To find out more see our cookies policy