The Royal Court recently sat in the case of Cole v. Chief Officer of the States of Jersey Police [2007] JRC 240. The Plaintiff succeeded in the tort of misuse of private information (sometimes also described as breach of confidence).

The Plaintiff, in answering a local newspaper advertisement, completed an application form for casual employment. Within the application form the Plaintiff answered "no" to the question enquiring whether he held a previous criminal record. On this basis he received a preliminary offer of employment. The wording of this provisional offer stated, "I confirm that you have provisionally been allocated a position with Jersey Post over the Christmas period, subject to satisfactory Police checks".

Following a security check against the Plaintiff's criminal record the offer of employment was withdrawn as it showed convictions in the UK. The Rehabilitation of Offenders (Jersey) Law 2001 was not in force at that time and these offences were not therefore deemed expunged.

Following the Plaintiff's failure to secure a position with Jersey Post he brought various actions against both Jersey Post and Jersey Police for breaches of his data protection rights, human rights and in negligence. His actions against Jersey Post were struck out by the Court of Appeal in an earlier hearing. The Court of Appeal ([2004] JCA 087) however considered on the facts that the Plaintiff may have a claim against the Police for breach of confidence or misuse of private information and that he should amend his claim to reflect this and how this breach caused injury to his feelings.

Naomi Campbell

The leading case in England in this area, concerns Naomi Campbell and the Mirror newspaper litigation ([2004] WLR 1232). The Royal Court recognised that the tort of breach of confidence or misuse of private information as developed under English law should be recognised and applied in Jersey law.

The three elements of the tort taken and considered by the court in turn were:

  1. Whether the information was confidential. In the present case the Defendant accepted that the Plaintiff's past criminal record was confidential.

  2. Whether the disclosure was unauthorised. This was a central issue in the case. The Defendant submitted that the Plaintiff had in fact consented to the disclosure of his criminal record. This was a question of fact to be decided on the evidence before the court. Drawing upon the Data Protection (Jersey) Law 2005 the court held that consent in this context required explicit consent. Against the specific factual matrix in this case it was found that the Plaintiff had not given his explicit consent. The wording of the letter accompanying the application form did not make it explicitly clear that the Plaintiff, by completing the form, was expressly giving his consent for his record to be released to Jersey Post. The court gave much weight to the fact that shortly after the Plaintiff's complaint in November 2001, Jersey Post amended the wording of the relevant parts of its application form and covering letter. On this basis the court held that the Plaintiff did not consent to the disclosure of his record.

    In the public interest

  3. Whether disclosure, though unauthorised, may be in the public interest. On examining this issue the court found that in fact there was no assessment by the Police of each individual criminal record and whether it should be disclosed in the public interest. As there was no decision making process the court concluded that public interest had no part to play in disclosure of the Plaintiff's criminal record. Further, looking closely at the criminal record, the court decided that the offences were at the lower end of the scale in terms of seriousness and also as they were committed almost twenty years ago the public interest did not require that it be disclosed in any event.

Thus the Plaintiff succeeded in establishing that there had been an unauthorised disclosure of confidential information by Jersey Police to Jersey Post, which was not justified by public interest reasons.

Hurt feelings

The court then had to determine the amount of compensation payable as a result of this breach. The Defendant's Advocate argued that the hurt feelings which the Plaintiff claimed that he had suffered had been caused by him bringing this litigation. The court accepted this argument. Citing English cases involving Naomi Campbell, Michael Douglas, Catherine Zeta Jones and Jeffrey Archer, it was held that the maximum award in such cases was around £4,000. These awards were made in situations where the publication of the private information was at least on a national scale. Applying these principles to the present case the Plaintiff could expect to recover between £500 - £1,000 and the court awarded £750 in damages for hurt feelings.

The judgment represents an important development in Jersey's law of tort expressly establishing the tort of private misuse of information in the island.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.