Privacy Matters: Limitation and the Misuse of Private Information
When someone’s privacy is violated, one’s instinct is simple and immediate shut it down. But in reality, it’s not always that straightforward. Often, you may not even know your personal information has been misused until much later. So, how long do you have to bring a claim?
The Basic Limitation Rule
Under the Limitation Act 1980, claims for misuse of private information follow the same rules as most torts. In other words, you usually have six years from the date the misuse occurred. This is different from libel or defamation where the period is just one year.
Nevertheless, the timing aspect isn’t always straightforward. When private information is stolen or circulated without your knowledge, it can take months, even years, before you realise what’s happened. Moreover, the Courts recognise this. Thus, you’re not expected to act before you know you’ve been wronged. Still, as a Claimant, you must first identify what information was taken, how it was obtained and who was responsible. Additionally, crucially, you must ascertain whether it qualifies for protection under Article 8 of the European Convention on Human Rights (your right to privacy) in a way that outweighs the other party’s right to freedom of expression under Article 10.
Now imagine trying to do that when your information was secretly harvested by a global media outlet, using illegal technology, from sources you didn’t even know were vulnerable.
Section 32 – Fraud, Concealment, and Mistake
This then is where Section 32 comes in. Indeed, the issue sits at the heart of the long-running phone hacking scandal, formally known as the Mobile Telephone Voicemail Interception Litigation (MTVIL). It’s now been proven that major media organisations (most notoriouslyThe News of the World) unlawfully accessed voicemails and private data. These acts were sometimes hidden or covered up for years.
To address this, section 32 of the Limitation Act allows for the standard six-year limit to be extended. If there’s been fraud, concealment or a mistake and you couldn’t reasonably have known about the wrongdoing, the clock starts ticking from when you first found out, or should have found out.
In C v MGN [1997] and The Kriti Palm [2006], the courts confirmed that it’s not about when the wrongdoing happened, but when the Claimant had enough knowledge to form a basic case. Critically, this can be based on facts that emerge later, especially if the Defendant actively concealed the unlawful acts.
The Subjective and Objective Tests
In these kinds of cases, The Court will apply a two-stage test:
- Actual knowledge – when did you know enough to sue?
- Constructive knowledge – when should you have known, if you’d made reasonable enquiries?
This was reinforced in the Gemalto cartel case in 2022, which dealt with similar questions of discovery. The Court said it’s about when you knew or could reasonably have known about the issue – not when the harm was done. Likewise, in OT Computers [2021], the court noted that while Claimants aren’t expected to know everything, they do need to be prompted into investigating. Certainly, there needs to be a trigger.
The Role of ‘Reasonable Attentiveness’
This principle played a key role in the 2023 ruling by Mr Justice Fancourt in Duke of Sussex and Others vs MGN. Judge Fancourt looked closely at whether the Claimants had sufficient reason to investigate if they’d been victims of phone hacking.
The court found that it was no longer credible, by 2011 onwards, to argue that phone hacking wasn’t publicly known. Even if someone didn’t know they had been hacked, the mounting scandal in the news should have prompted them to ask questions. That was enough to begin the limitation period under the constructive knowledge test.
In other words, if you suspect something’s wrong, the law expects you to act. You can’t simply sit back and hope the answers land in your lap. The obligation is not just to avoid procrastination – it’s to be actively alert.
Case in Point: Fiona Wightman
A recent example helps to show how this plays out in practice. In the claim of Fiona Wightman vs MGN, Ms Wightman, the former partner of comedian Paul Whitehouse, alleged phone hacking. But the judge found that by October 2014, a reasonable person in her position would have been aware enough of the scandal to investigate. Even though she was under significant personal strain at the time, the court held that this did not excuse inaction. Her claim was struck out as time-barred.
The key takeaway here is that the Courts recognise life’s challenges, but they don’t lower the legal threshold for attentiveness.
Why Acting Promptly Matters
What all of this means is that if someone’s privacy has been breached – especially by a media organisation or via unlawful surveillance – there is a window of opportunity to act. The longer the wait, the more difficult the claim becomes. The law gives an individual room to discover what happened, especially in cases involving concealment or fraud. But, it does not reward silence or inaction.
Therefore obtaining expert advice as soon as possible is crucial. If you think your personal data or private life has been compromised, get advice – quickly and from someone who knows this area inside and out.
For more help with Privacy Law and Phone Hacking:
At Taylor Hampton, we specialise in media and privacy law. If you have concerns, contact our team who are pioneers in phone hacking matters on 0207 427 5970.
We can help you understand where you stand, and what to do next.
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