Dear Steve and all,
This is more than ‘of interest’. It is a very significant, if equally difficult, judgment (and worryingly running to 94,673 words - the length of a PhD thesis! I fear the below is also pretty long…)
Before we look at damages I wonder if the most far-reaching point isn’t a totally unrelated one, i.e. the recognition that a claim for breach of privacy stands in the absence of any publication of the private facts
(§109)? We could quibble over it because there was some (very limited) publication between the parties involved in the hacking but the principle seems clear. And strikes me as absolutely right: I’ve never been able to understand why the wrong would be one
of wrongful disclosure of private information; surely if the wrong is the breach of C’s privacy its gist is the ‘taking’ of the private information. Its being passed on to many compounds the injury but it does not create it. I think this goes to showing
that the wrong has been defined way too narrowly and courts are now exploring various avenues to circumvent the restrictions (see also Nicole Moreham’s important piece on non-informational privacy in 73 CLJ 350).
On the subject of damages, i.e. what losses or harms are being compensated, I think there are some very complex theoretical issues underpinning the judgment. What you can observe is the direct clash between two models
of understanding the relationship between tort and harm (or wrong and loss) - which are not limited to privacy but find a particularly fertile ground here to compete on. The important thing, I would say, is not to mix and match them. Let me try to explain:
The arch-dominant model in English law is to contrast wrong and loss. The wrong (here the breach of privacy) is the violation of a right. Losses, on the other hand, are detriments which
flow from the breach – i.e. they are consequences of, hence separate from, it. These losses, in turn, are either pecuniary – you’re out of the pocket (that’s the easy bits) – or non-pecuniary: you’re not out of pocket but still worse off in a concrete,
factual way. It shouldn’t be too difficult to accept that these non-pecuniary losses all boil down to distress in a broad and untechnical sense (see e.g. Burrows’
Remedies, 3rd ed, p 31).
Example: physical injury. Your bodily integrity has been violated, you (typically) suffer some pecuniary loss (medical expenses, loss of earnings etc) and some non-pecuniary loss (‘PSLA’ in the lingo). On that model
your physical injury is transparent: it is a peg on which losses hang. It needs to be there because without it your loss is not wrongful but you don’t get compensated for it; you get compensated for the deleterious consequences.
Applied to privacy, it gives you the privacy-breach which is your peg and distress/economic losses which are your losses. There are two complications. One is that, in breach of privacy cases, there is typically no
economic loss pleaded, which puts a lot of stress on what is typically regarded as the junior partner in the pecuniary/non-pecuniary dichotomy, and forces the law to confront questions it is ordinarily adept at sweeping under the rug. The second complication
is that, across tort, distress is rarely actual distress; it is generally deemed distress: how bad the claimant is supposed to feel rather than how they really feel. So deemed in fact that, as is well known, unconscious claimants can recover for loss of amenities
(even though it is incontrovertibly a form of distress). This complication is best ignored here lest things become too complex.
The other model of tort and harm, which clearly underpins Mann J’s judgment, is to
conflate the wrong and the injury (something regarded as a capital crime by some leading authors but which actually makes a lot of sense). On that view the loss that you suffer in your breach of privacy case is the loss of privacy itself (§111: ‘a right
has been infringed, and loss of a kind recognised by the court as wrongful has been caused’). But that is not another type of loss flowing from the breach. Loss of privacy does not flow from the breach of privacy at all: it
is the breach itself looked at from a different angle. It is not a separate detriment that may or may not follow: it is necessarily there by virtue of the breach having occurred. Language inspired by Grotius [De iure 2.17.2] is useful here: the
loss (damnum) is the ‘diminution’ of your right, which itself is no different than the infringement of your right hence from the wrong. The loss you’ve suffered is that you’ve been wronged; the wrong is the unjustified causation of the relevant loss.
On that model the two are the flip side one of the other.
The crucial point to understand is that these two models are alternatives. I’m not going to go into the question of which is better, although it might be worth mentioning that I agree with Mann J (contra the uber-dominant
model) that this abstract notion of loss is the better one - and allows you to understand why, like here, it is possible (indeed desirable) to get substantive [not nominal], compensatory [not vindicatory] damages regardless of whether or not you are out of
pocket and/or aggrieved (§115: ‘The absence of distress does not that mean that there was any the less an invasion of privacy’; §132: ‘Damages awarded to reflect the infringement are not vindicatory in the sense of
Lumba. They are truly compensatory’).
The only point I’d like to press today is that they shouldn’t be combined. On a principled level, this would be like adding oranges and apples. Practically it would mean counting the same injury twice. If you compensate
the right-diminution you shouldn’t also compensate for the (non-consequential) economic loss that flows from it. Robert Stevens’ example of substitutive damages if you smash someone else’s car (T&R p. 61) applies here, even though Rob was trying to
make a rather different point: if it costs £2,000 to repair the car, they can’t get £2k for the diminution of their property right and another £2k for the economic loss they've suffered: that’s the same injury from two different angles. That’s easy to see
because values are objective when the loss is pecuniary. More difficult to prove with distress but the principle is exactly the same. Leaving aside the red herring of aggravated damages (compensatory for a separate injury), the distress and the right-invasion
are the same injury. E.g. “total loss of taste and smell” yields damages “in the region of £28,000” (Judicial Guidelines p. 8). Is that compensation for distress/PSLA or compensation for the physical injury (infringement of your bodily integrity)? The
language of courts and scholars toes and froes. The truth is that it is both at the same time, from two different perspectives. The important (and I think unchallenged) point is that there is one injury not two.
To go back to Gulati, you can see the court caught between a rock and a hard place. It wants to give substantial compensatory damages for breach of privacy in a situation where there is no (or little) distress.
This forces it to switch to what I call the ‘unipolar’ model of loss: the loss suffered becomes the wrong itself, i.e. the diminution of C's privacy (itself sometimes described as a type of loss of dignity or autonomy: these are different words to describe
the same reality). So far so good. The difficulty is that, because the tension I described between two models has not been identified, the court is not sure what to do with the lingering dominant ‘bipolar’ model, according to which the wrong is transparent
and what matters are its consequences: in other words the pecuniary loss (none in the instant case) and the distress.
Throughout the judgment you can see the court oscillating between putting them on the same level [i.e. you get damages for distress
and damages for loss of privacy]; and seeing them as the flipside one of the other (the correct view to my mind). This leads Mann J. to meander constantly between two positions without, it seems, realising that they are mutually exclusive: (i) that
there should be damages for distress and for loss of privacy (e.g. §111, end of 130, 143); and (ii) that it is ‘unnecessary, if not inappropriate’ (§ 130) to award damages for loss of privacy on top of damages for distress when there is in fact such
distress, the suggestion being that this would be double recovery. At §134 he comes very close to recognising that the distress is the flipside of the privacy-infringement, hence one injury and one compensatory award.
The correct position, it seems to me, is that the loss is indeed the loss of privacy. Typically breach of privacy causes distress but this is irrelevant; it is a typical consequence not an analytical requirement,
and the claimant should not get less if he is not distressed (or even incapable of emotions) and not get more because he is, or is in a more-than-average way - unless and until a separate harm/violation of another right can be identified (hence aggravated
damages). But if we do that, we move from the ultra-dominant bipolar model to a unipolar one, and this has an enormous ripple effect on the rest of tort law – topic for another day…
Apologies for an overly long reply. As it happens I am working on this right now so was especially intrigued by that judgment and would be very interested in further discussions with list members, on- or off-list.
Eric