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Misuse of private information and whistleblowing

MISUSE OF PRIVATE INFORMATION AND WHISTLEBLOWING

What does it mean?

The matters leading you to raise whistleblowing concerns may involve the actions of another individual, such as one of your colleagues. If those matters involve that individual’s private life and activities then raising whistleblowing concerns may amount to the misuse of that person’s private information.

It is important to note that the law does not recognise the misuse of a company or other organisation’s private information. This may instead amount to a breach of confidence.

If you are unsure whether you’ve misused someone’s private information, you may wish to consider the legal principles set out below. Please note that these are guiding legal principles only.

When will private information have been misused?

Misuse of private information is a tort (the legal word for an act, or failure to act, that causes harm to another. A tort can form the basis of a civil action- put simply, if you commit a tort, you may be sued in the civil courts for the harm it caused).

The tort of misuse of private information was first recognised in the case of Campbell v MGN Ltd [2004] UKHL 22. In that case, the court said that two questions must be asked when deciding whether there has been misuse of private information.

1. Does the claimant* have a reasonable expectation of privacy in the information concerned?

*the person who is claiming that there has been misuse of their private information, e.g. a colleague.

This question is a wide, objective one, which takes into account all of the circumstances, including the attributes of the claimant (i.e. their profile/ what they are like), what the claimant was doing at the time, the location, the nature and purpose of any intrusion, whether or not the claimant consented and whether consent could be known or worked out, the effect on the claimant, and the circumstances in which the information came into the hands of the publisher/ discloser (e.g. the whistleblower).

A court may easily find that there is a reasonable expectation of privacy in relation to activities in the home or other private places.

There can also be a reasonable expectation of privacy in public places.

It will be more difficult for someone to establish that they have a reasonable expectation of privacy in relation to activities carried out in the context of their employment.

2. If there is a reasonable expectation of privacy, what is the balance to be struck between a colleague’s right to privacy and a whistleblower's right to freedom of expression? (The “balancing exercise”)

At this stage, the court must balance two human rights:

(a) the claimant’s right to privacy, i.e. to lead a private life without interference (Article 8, Human Rights Act 1998); and

(b) the whistleblower’s right to freedom of expression, i.e. the right to hold an opinion and to express this freely without interference (Article 10, Human Rights Act 1998).

Neither right has priority over the other.

When carrying out this exercise, the court will apply the test of proportionality by looking at all of the facts and circumstances. This means asking whether the extent to which private information was disclosed was necessary: if the whistleblower’s goal could have been achieved by disclosing less private information or disclosing that information to a smaller group of people then they may be considered to have acted disproportionately and therefore to have misused that private information.

One of the most important factors in this exercise will be whether publication (or disclosure to someone else) is in the public interest and contributes to a debate of general interest. Raising whistleblowing concerns, when done reasonably and justifiably, is likely to have been done in the public interest. Other factors relevant to the balancing exercise include the position and public profile of the claimant, who the disclosure was made to, and any negative impact of the disclosure on third parties.

If a court finds that the balance falls in favour of the right to freedom of expression then the whistleblower will be found not to have misused the claimant’s private information. If, on the other hand, it finds that the balance falls in favour of the right to privacy then the whistleblower will be found to have misused the claimant’s private information.

What might happen if I am found to have misused private information?

If you are found liable for misuse of private information, the possible consequences are that a court will award damages (i.e. money) to the claimant including for distress, hurt feelings and loss of dignity. An interim and final injunction may be awarded (which will likely prevent you from further publishing the personal information) and you may be ordered to hand over or destroy the offending material.

Dos and Don'ts

  • Do consider whether you need to disclose an individual’s private information when making your whistleblowing report.
  • Do consider if raising whistleblowing concerns will achieve the same goal without naming individuals or referring to any information about those individuals’ private lives.
  • Do consider if you could take steps to lessen the privacy impact on other individuals (for example, by limiting the number of people to whom the disclosure is made).
  • Do follow your employer’s whistleblowing policy, if possible, when raising whistleblowing concerns.
  • Don’t include any more information than is necessary when you raise whistleblowing concerns.
  • Don’t raise concerns to more people than is necessary.

FAQs

I suspect that one of my colleagues is committing bribery and I want to raise whistleblowing concerns about them. Can I name them when I do?

If you suspect your colleague is committing bribery in the course of their employment then it is unlikely that this will be considered information in which they have a reasonable expectation of privacy, especially as their conduct is potentially unlawful. You should be okay to name that individual when raising whistleblowing concerns, but make sure you do not disclose any more information than is necessary to set out your allegations. Your employer may have an anti-bribery and corruption policy. If so, you should refer to that policy and the whistleblowing policy for further guidance when raising concerns.

I believe my manager is submitting false invoices to suppliers in order to line their own pockets. They also regularly make racist, sexist, and homophobic remarks in the office and I recently found out that they are cheating on their partner. I want to include all of this information when I raise whistleblowing concerns so that my employer can see what a horrible person they are. Am I allowed to?

Given your manager is submitting false invoices in the course of their employment and this is wrongdoing, raising concerns about this behaviour is unlikely to amount to misuse of private information. As regards their racist, sexist, and homophobic remarks, if these are made in the course of their employment then this information would not be information in which they can reasonably expect privacy.

You may wish to raise whistleblowing concerns about both the submission of false invoices and the racist, sexist and homophobic remarks under the whistleblowing policy as both matters will breach the employer’s policies and procedures and be a matter of concern to the wider workforce and the employer. Alternatively, you could report the false invoices under the whistleblowing policy and raise a grievance about the racist, sexist and homophobic remarks if they just affected you.

Your manager may well have a reasonable expectation of privacy in relation to their romantic life if this does not impact on their employment. You therefore should not include this information when raising whistleblowing concerns.

Need advice on this?

You can contact the Protect Advice Line for advice on misuse of private information and whistleblowing.

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