English law:

• Article 8


  Protects the right to private life
• Forms of Surveillance


  • Sec 32(2) of The Regulation of Investigatory Powers Acts 2000 and 2016 provides regulations as to the grounds for using surveillance and authorisation of intrusive surveillance if the state considers it to be necessary: (a) in interests if national security (b) for the purpose of preventing a serious crime (c) in the interests of economic well-being of the United Kingdom
  • The exercise of this power must be exercised proportionately.
• Cases related to surveillance

  • Halford v UK (1997) – pursuing a sexual discrimination claim and had her phone bugged = serious breach of her rights.
• Section 65(2)(a) of the Regulation of Investigatory Powers Act 2000


  Allows for a challenge to the use of power under Section 7 Human Rights Act 1998, but this can only be via a Tribunal not Court.
• Investigatory Powers Act (2016)

  • Updated the regulations under the 2000 Act.
  • It gathers together all of the powers relating to the agencies involved in obtaining communications data.
  • Section 23 – It introduces a double-lock for interception warrants, so that authorisation of the Secretary of State must be approved by a judge (ability for people to intercept telephone calls, emails etc).
  • Section 67 Appeals can now be made against Tribunal decisions.
  • It can also allow for the hacking and accessing of an individual's private phone, computer and access to data therein.
  • Collecting bulk-data like this is highly controversial.
  • Sections 227 and 229 create the office of a Investigatory Powers Commissioner and define his function - The Investigatory Powers Commissioner, the Rt Hon Sir Brian Leveson, has responsibility for reviewing the use of investigatory powers by public authorities, such as intelligence agencies, police and local authorities. He is supported by a team of Judicial Commissioners.
• Liberty, Privacy International v Security Services, Secretary of State for the Home Department [2023] - The security service has failed to comply with statutory safeguards required by the Regulation of Investigatory Powers Act as amended by Investigatory Powers Act 2016. They were considered to have concealed the over retention of mass data and the Home Secretary had continued to issue warrants knowing that there were risk of breaches. Held that MI5 acted unlawfully by knowingly holding people's personal data in systems that were in breach of core legal requirements. Liberty said that today's ruling once again shows that surveillance laws "are not fit for purpose and fail to protect our fundamental privacy rights".
• Official Secrets Act (1989)

  • Replaced Section 2 of the Official Secrets Act 1911.
  • It sets out the specific categories of public servants who are covered by a legal duty not to disclose sensitive information. This includes: Those working in security and intelligence, Defence, International relations, Crime and special investigations.
  • This can obviously create tension and conflict between the obligation placed on public servants in this capacity not to disclose and their human rights obligations (Article 10 in particular).
• Breach of Confidence


  • In Equity (part of the Chancery Division) there is a common law duty connected to a breach of confidence.
  • Breach of confidence is the breach of a duty which can give rise to a civil claim. Breach of confidence will usually arise in connection with the disclosure of information which has a commercial value, but can also include personal information about individuals.
  • The Human Rights Act 1998 has developed this area of law so that private individuals can make claims against other private individuals as well as arms of the state.
  • The duty usually engages both Articles 8 and 10.
• Requirements for a breach of confidence claim


  • The information was obtained in a way which gives rise to a duty of confidence (accounts to an accountant or medical information to a doctor)
  • It must have the 'quality of confidence' (Lord Greene, Saltman Case)
  • It can arise within an employment contract
  • It must be used in an unauthorised way
  • The claimant must suffer a detriment to its use (harm or damage)
• Defences to a breach of confidence claim

  • Information already in public domain
  • Information was not confidential
  • Public interest in the disclosure
• Breach of confidence cases

  • HRH Prince of Wales v Associated Newspapers (2006) - Newspaper published extracts from the then Prince's private diaries. He won his case for a breach of confidence: "The judge was correct to hold that Prince Charles has an unanswerable claim for breach of privacy. When the breach of a confidential relationship is added to the balance, his case is overwhelming".
  • Duchess of Argyll v Duke of Argyll (1967) - Unauthorised use of confidential information based on a relationship like a husband and wife.
  • Douglas v Hello (2001) - Commercial relationships.
  • A v B Plc or Weller v Associated Papers (2015) - Claimants that are already in the public eye.
• Privacy claims


  • There is no overarching right to privacy but a claim against the 'wrongful disclosure of private information'.
  • Campbell v MGN (2004) - No overarching right of privacy – but a claim against 'wrongful disclosure of private information'.
  • Mosley v News Group Newspapers (2008) - Newspaper published a story about the claimant's sexual activities with prostitutes. As he was head of Formula One racing, the newspaper argued that the public had a right to know. The Court of Appeal held that there was no public interest in his story and his right to private life had been violated.
  • Von Hannover v Germany (2004) - Princess Caroline of Monaco was secretly photographed with her children in a café and photos were published. The ECtHR held that the photos were highly intrusive and that there was no public interest to merit the publication.
• Factors to consider in privacy claims

  • Are they already in the public eye?
  • Do they have a high profile?
  • Are they seen as a role model?
  • What activity/information is being published?
  • Is it in the public interest or an interest to the public.
• Articles 10 and 11


  Protect the right to freedom of expression and the right to carry out a peaceful assembly
• Limitations on Articles 10 and 11

  • Breach of the Peace
  • Criminal Offences: Riot, affray, violent disorder
  • Causing fear or provoking violence
  • Raves
  • Trespass
  • Restrictions (unless activity is criminal) will be justified where 'proportionate'.
• Breach of the Peace

  • Used to prevent unlawful violence against people or property.
  • Peace in this context means the Queen's peace: "there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through assault, an affray, riot unlawful assembly or other disturbance" – R v Howell (1981)
  • Wide powers are available, but Courts must ensure that any powers used respect and are in proportion with Human Rights.
  • R (McClure and Moos)
• Wrongful disclosure of private information

  Mosley v News Group Newspapers (2008)
• Newspaper published a story about the claimant's sexual activities with prostitutes
• As he was head of Formula One racing, the newspaper argued that the public had a right to know
• The Court of Appeal held that there was no public interest in his story and his right to private life had been violated
• Von Hannover v Germany (2004)


  Princess Caroline of Monaco was secretly photographed with her children in a café and photos were published
• The ECtHR held that the photos were highly intrusive and that there was no public interest to merit the publication
• Questions to consider when determining public interest

  • Are they already in the public eye?
  • Do they have a high profile?
  • Are they seen as a role model?
  • What activity/information is being published?
  • Is it in the public interest or an interest to the public
• Articles 10 and 11

  Rights they protect
• Several limitations on the right to freedom of expression and right to carry out a peaceful assembly
• When limitations are justified


  • Breach of the Peace
  • Criminal Offences: Riot, affray, violent disorder
  • Causing fear or provoking violence
  • Raves
  • Trespass
• Restrictions (unless activity is criminal) will be justified where 'proportionate'
• Breach of the Peace

  Used to prevent unlawful violence against people or property. Peace in this context means the Queen's peace
• "there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through assault, an affray, riot unlawful assembly or other disturbance" – R v Howell (1981)
• Wide powers are available, but Courts must ensure that any powers used respect and are in proportion with Human Rights
• R (McClure and Moos) v Commissioner of Police of Metropolis (2012) (anti-capitalist riots) and Austin v Commissioner of Police of the Metropolis (G20 protesters) (2012)
• Public Order Act 1986


  Sets out various offences that can occur when there are protests and demonstrations
• Section 1 – Riot


  "where 12 or more persons are present together to use or threaten to use unlawful violence for a common purpose and the conduct of them is such as would cause a person of reasonable firmness present at the scene to fear for their personal safety"
• Section 2 – Violent disorder


  "where 3 or more persons…"
• Section 3 – Affray


  "if he uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety."
• I v DPP (2001) – youth carrying petrol bombs, but not actually threatening them would constitute an affray, but evidence would have to be obtained to show that a member of the public felt fear or threatened
• Processions and demonstrations: POA 1984

  • Section 11 – anyone who wants to demonstrate must notify the police of the event, with timings, location and information about the lead organiser
  • Section 12 – have the power to prohibit any protest or demonstration if they believe that it will lead to violent outcomes, public disorder or prolonged disruption to the public (essentials like food and water or access to a place of worship/hospital etc)
  • Section 13 – can request an order from the local authority to prevent any protest within a 3 month period
• Public Order Act 1986 (legislation.gov.uk)
• Criminal Justice and Public Order Act 1994

  • Section 61 - Power to remove trespassers on land
  • Section 62 – powers for the police to seize vehicles
  • Section 68 - to stop aggravated trespass – trespass by those who deliberately wish to obstruct or prevent activities from taking place – ie hunt saboteurs, motorway protest groups, climate change protestors etc.
• DPP v Chivers (2010) – land was interpreted as including a building in this case. One defendant locked himself to a stair railing using a D lock around his neck, another occupied the stairwell and another glued himself to the front door. All three were charged with aggravated trespass