Damages for infringement of privacy rights should compensate not merely for distress but also, if appropriate, for a loss of privacy or autonomy arising out of the infringement as such, which might include, if appropriate, a sum to compensate for damage to dignity or standing so far as that was meaningful and not already compensated under the distress element.

Mann J so held in the Chancery Division when awarding damages in eight separate actions to the claimants, Shobna Gulati, Lucy Taggart, Alan Yentob, Lauren Alcorn, Shane Roche, Paul Gascoigne Robert Ashworth and Sadie Frost, for infringement of their privacy rights by the defendant, MGN Ltd. The claimants were victims of mobile telephone voicemail interception, also known as “phone hacking”, by persons employed by the defendant at its three newspapers. All except the claimant in the third case claimed that the illegal activities had led to publication of articles in those newspapers. The claimants also alleged that confidential or private information had been wrongfully obtained by private investigators engaged by the defendant. They brought claims for damages as a result of the illegal activities, whether or not that activity had led to published articles, seeking compensation for loss of privacy or “autonomy”, injury to feelings (including distress) and “damage to affront to dignity or standing”, plus 100% of those sums as aggravated damages. The defendants admitted liability save for a certain number of articles that they said had not been published through phone hacking but denied that the claimants were entitled to damages except for distress or injury to feelings.

MANN J said, as to the basis of any award of damages, that confining damages for infringement of privacy rights to those for distress would render the rights illusory to a degree and, also to a degree, fail to provide an effective remedy. Misappropriation and misuse of private information causing upset was a wrongful act and could, in principle, attract damages where appropriate. Damages should reflect the nature of sustained and serious infringement of a right and were not to be vindicatory in the sense of R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245 but should be truly compensatory. It would not be necessary or appropriate in all cases to consider separating the misuse from the distress because the infringement and its consequences would be so entwined. Compensation could therefore be given for matters other than distress, and in particular could be given for the commission of the wrong itself so far as that commission impacted on the values protected by the right. The scope of the wrongdoing was relevant, because it went to the extent of the invasion of privacy which itself went to damages. The court was not bound to award either a single award of damages or several per claimant. The court could and should take an approach that was appropriate to achieve the objective of a compensatory award, namely to compensate a claimant properly and fairly for the wrong they sustained. It would not be appropriate in present case to grant a global sum to compensate each claimant as the wrongs suffered by them had too great a degree of separation. The overall sum had to be proportionate and a proper reflection of the overall pattern of wrongdoing. As to the quantum of any award in claims for infringement of privacy rights, there were very important distinguishing factors which made it inappropriate to directly apply cases cited by the defendant of breach of privacy rights. The court was not required in the present case, or any privacy case, to apply the three broad bands of compensation for injury to feelings set out in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318, which was a case involving harassment. That level of generality could not be applied. Mann J went on to proceed on the basis that there was no other authority in relation to other torts which provided amounts or criteria which could be directly transposed into privacy cases. However, those judgments should not be ignored and were capable of providing a sort of sanity check on any amounts sought. Mann J went on to grant the claims and awarded substantial damages to each claimant.