In recent years there have been few attempts to clearly and precisely define the “right to privacy”. In 2005, students of the Haifa Center for Law & Technology asserted that in fact the right to privacy “should not be defined as a separate legal right” at all. By their reasoning, existing laws relating to privacy in general should be sufficient. Other experts, such as William Prosser, have attempted, but failed, to find a “common ground” between the leading kinds of privacy cases in the court system, at least to formulate a definition.One law school treatise from Israel, however, on the subject of “privacy in the digital environment,” suggests that the “right to privacy should be seen as an independent right that deserves legal protection in itself.” It has therefore proposed a working definition for a “right to privacy”:
The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.
The right to privacy is an element of various legal traditions to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.
Since the global surveillance disclosures of 2013, initiated by ex-NSA employee Edward Snowden, the inalienable human right to privacy has been a subject of international debate. In combating worldwide terrorism, government agencies, such as the NSA, CIA, R&AW and GCHQ, have engaged in mass, global surveillance.
There is now a question as whether the right to privacy act can co-exist with the current capabilities of intelligence agencies to access and analyse virtually every detail of an individual’s life. A major question is that whether or not the right to privacy needs to be forfeited as part of the social contract to bolster defense against supposed terrorist threats.
Private sector actors could also threaten the right to privacy. Increasingly, questions have arisen about the use of personal data for targeted advertising, sharing data with external parties and reusing personal data within big data by large technology giants, such as Amazon, Apple, Facebook, Google, and Yahoo. These concerns have been strengthened by scandals, revealing that the psychographic company Cambridge Analytica was using personal data, illegitimately obtained through Facebook, to manipulate and influence large groups of people, including during the 2016 US Presidential elections.
The wrongful invasion of privacy has been recognised as an action in tort in the United Sates and New Zealand , but there is no comparable tort in English law of tort. In Wainwright v Home Office Lord Hoffmann saw a great danger in the courts attempting to fashion a tort based on the unjustified invasion of privacy. Lord Hoffman preferred the idea that parliament should legislate for such protection since there will invariably be exceptions and defences.
Although there is no such tort it does not mean that English common law fail to recognise the interest we have in our privacy being protected from wrongful invasions. Murphy argues that the Human Rights Act 1998 does provide for positive protection of our private lives.
European Convention on Human Rights (ECHR)
Protection of Privacy
Article 8 of the European Convention on Human Rights (ECHR) provides for the protection a person’s private and family life, home and correspondence. It goes further to provide that no public authority may interfere in this right unless as is required by law and as necessary in a democratic society.
Protection of the Right to Free Speech
Article 10 of the ECHR provides that everyone has the right to freedom of expression which includes the right to impart information. Article 10(2) provides for limits to this right. The right may be limited by law and the necessities of a democratic society. It may further be limited for the protection of the rights of others. Such rights will be those set out in article 8 of the ECHR.
A tension exists between the provisions of Article 8 of the ECHR providing for the protection of privacy on the one hand and Article 10 of the ECHR providing for the protection of freedom of speech on the other hand.
Human Rights Act 1998
Member States are required to import the provisions of the ECHR into their domestic legislation and England has done so by the adoption of the Human Rights Act 1998 (HRA). The HRA only applies to public authorities and courts are public authorities. The HRA will therefore have limited horizontal effect in private litigation between parties as it will be required of the courts to apply the provisions of the HRA in its judgment.
Sections 2 and 6 of the Act require that courts to develop the common law consistently with the rights embodied in the ECHR.
The provisions of Articles 8 and 10 have been adopted in the same form as they exist in the ECHR and the same tension that exists in the ECHR also exists in the provisions of the HRA. The courts will be required to weigh up the right to freedom of expression against the right of privacy contained in Article 8 to determine which carries the most weight in the circumstances.
Although the provisions of the HRA and the ECHR provide protection to the right of privacy of the individual the protection may fall short of providing proper protection and may require the development of a proper tort of wrongful invasion of privacy.
General Forms of Protection
Murphy refers to specious protection of some other torts that exist outside the HRA. He refers to the law of private nuisance which protects a person against substantial and unreasonable interference with the use or enjoyment of land. The law of trespass to land provides protection against physical intrusions and the laws of defamation and malicious falsehood can be called upon to protect a person’s reputation and goodwill against publication of untruths. The law of trespass to person has also been extended to include the strip search of persons where a tort of unlawful invasion of privacy would have sufficed.
Protection of Privacy through the use of the Tort of breach of Respect of Confidence
In Prince Albert v Strange the court held that the plaintiff was entitled to protection based on a breach of the common law of copyright and breach of confidence. It appears that this is the first instance where the idea of breach of confidence in the protection of the privacy of someone was adopted.
In what has been described as a rapid development of the common law, the equitable obligation to respect confidences has been used to protect the privacy of persons. Lord Woolf said that in the majority of situations where the protection of privacy was justified an action for breach of confidence will provide the necessary protection. His Lordship further said that a duty of confidence will arise whenever the party who is subject to the duty was in a situation where he either knew or ought to have known that the other party had a reasonable expectation that that his privacy will be protected.
It is to be noted that the test to ascertain if the duty existed is objective and therefore does not require the tortfeasor to have foreseen that the duty not to disclose the information existed. If an objective third party was asked whether the duty existed and he or she answered in the affirmative the duty will exist irrespective of whether the defendant knew that it existed.
In Douglas v Hello! Ltd Lord Sedley was of the opinion that the time has arrived where one can say with confidence that the law now recognises and will protect the right of personal privacy. If anyone thought that this was to be interpreted that Lord Sedley was promoting the idea that the common law will now admit a tort of invasion of privacy that idea was quickly put to rest by Lord Hoffman in Wainwright when his lordship said that the words of Lord Sedley should not be interpreted as advocating the creation of a high level principle of invasion of privacy. According to Lord Hoffman the words were no more than a plea for the extension of the tort of breach of confidence. One can only agree with Lord Hoffman’s interpretation of the words by Lord Sedley as it is clear that Lord Sedley said that the law will protect the right of personal privacy and not that it admitted a new tort of invasion of privacy. Since the tort of breach of confidence has been utilised in the past it is reasonable to argue that Lord Sedley referred to the extension of this tort to include the protection of privacy.
In Campbell v MGN Lord Nicholls held that the cause of action is no longer limited to the requirement that there should be an initial confidential relationship between the parties. The court held that the tort was better described as a misuse of private information.
In the Campbell case a famous model claimed damages for the alleged breach of confidence and infringement of her privacy under the HRA. The defendant published stories about the plaintiff attending Narcotics Anonymous, details of her treatment for drug addiction and a photograph of her at the premises where the meetings were held. The plaintiff lied to the public when she denied being addicted to drugs. She conceded that the fact that she was being treated and that she was undergoing treatment could be disclosed to the public but argued that the details of her treatment with her photograph amounted to wrongful publication.
The defendant called upon the provisions of Article 10 of the HRA arguing that their rights to freedom of expression outweighed Ms Campbell’s rights under Article 8.The court had to decide whose right was to be limited and held that the photograph and the information of Ms Campbell’s treatment went too far to set the record straight. Her right to privacy under Article 8 outweighed the newspaper’s right under Article 10 and her action succeeded.
The court referred with approval to Phillipson’s argument that the remedy for unauthorised publication of personal information has resulted from a fusion of breach of confidence with the limited horizontal application of Article 8 of the ECHR. Phillipson argues that confidence has radically transformed into a privacy right in all but name.
After the Campbell decision the general feeling was that it was highly probable that the misuse of private information of a personal kind will ground an action in tort. Shortly after the Campbell judgement the opportunity arose for the court to consider whether the tort action could extend to protection of the commercially exploitable private information. The court however treated the misuse of commercially exploitable information along the traditional lines of breach of confidence.
Lord Phillips MR held that the HRA requires that the court develop in so far as it is able to, the action for breach of confidence in such a manner as will give effect to the rights contained in both Article 8 and Article 10. Although it appears that this may be a step back from the Campbell decision there are some promising signs. Lord Phillips referred to the action formerly described as breach of confidence. Lord Phillips’s speech suggests that for the present it is preferable if the courts continue to deal with the cases along the lines of established breach of confidence categories. The second limitation that the court referred to is that only an unjustified disclosure will attract the liability. This requires the court to weigh the rights to privacy in Article 8 with the right of freedom of expression contained in Article 10 of the HRA.
How do the Courts Deal with Article 8 and Article 10?
In Venables v News Group Newspapers Ltd Dame Butler-Sloss held that the right to freedom of expression was a strong one and could only be overridden by the exceptions in Article 10(2). The court held that the exceptions must be narrowly interpreted and the burden to show that an exception exists lies on the party seeking to restrain the publication.
However, in Campbell the court held that there were different categories of free speech which should be accorded different levels of protection. Baroness Hale held that mere gossip that did not serve any political educational or artistic purpose would not be awarded the same level of protection when measured against Article 8 of the HRA.
Her Ladyship also said that the right to privacy is relevant and that it can be outweighed by the rights contained in Article 10 of the HRA. The right to discuss the private lives of public figures may well be relevant to their participation in public life.
It is thus clear that each case will turn upon its own facts as to which right carries the most weight in the circumstances.
In the Douglas v Hello! Ltd (No 8) the House of Lords reinstated the finding of the court a quo (court of first instance) and held that the protection of privacy also encompassed commercial confidence. In an article Gillian Black argues that a result of this case there are two levels of protection available to celebrities. The first is the right to protection of private information and secondly the right to protection of an assignee of those rights.
Is the protection that has been afforded the plaintiffs in Douglas and Campbell sufficient so that a common law tort of invasion of privacy is redundant?
In Gordon Kaye v Andrew Robertson and Sport Newspapers Ltd the plaintiff who was a well known actor tried to obtain an order to prohibit the publication of photographs of the injuries he sustained in a car crash. The photographs were obtained under false pretences. The Plaintiff sought protection based on the multitude of torts used in the past but since no tort of privacy existed in English law he was unsuccessful.
The courts may come to a different result now that the HRA has been adopted. However, if the tort existed at the time the plaintiff may well have succeeded with the action.
In light of the fact that the HRA recognises the right to a private life and the requirement for the courts to develop it further, it is not clear why the courts do not recognise the tort of invasion of privacy as a separate self standing tort instead of trying to extend the tort of breach of confidence.
2,489 words excluding footnotes
Beverly-Smith H., Ohly A., Lucas-Schloetter A., Privacy, Property and Personality Civil Law Perspectives on Commercial Appropriation (2005) Cambridge University Press
Murphy J., Street on Torts (2007) Oxford University Press
- A v B Plc  QB 195 available at as at 2 May 2010
- Campbell v MGN Ltd  AC 457 available at as at 2 May 2010
- Douglas v Hello! Ltd (No 1)  2 All ER 289, available at as at 2 May 2010
- Douglas v Hello! Ltd (No 6)  QB 125 available at as at 2 May 201
- Douglas v Hello! Ltd  4 All ER 545 available at as 2 May 2010
- Hosking v Runting  NZCA 34 available at as at 2 May 2010
- Gordon Kaye v Andrew Robertson and Sport Newspapers Ltd  FSR 62
- Venables v News Group Papers Ltd  EWHC QB 32 available at as at 2 May 2010
- Wainwright v Home Office  UKHL 53 available at as at 2 May 2010