Our privacy threatened, but more changes to make the government-private. Are we losing our rights to Private as in the word private
All of you are looking for your feedback regarding privacy. Your privacy. What about your private property. If you live in a council house or a leased place, the owner can access your house. At a moment’s notice. Your home and personal possessions. Questions from people have asked for assistance on this, so we are all interested in your views. I want to get your perspective on this, thank you for your interest, and we are all looking forward to reading your stories and information about your privacy. Please leave your names private. Do you realize that you sine your private-a-way rights when you sign a piece of paper? If you’re unemployed, if you get assistance through benefits, you’re open. Being trapped and tracked and then manipulated to keep you from moving forward—the repression of a professional society. Suppose you signed a parking ticket or any official document. Please, let’s debate this so we can all hear your views on the gray place. We are interested in going for right standing citizens in private areas all private places such as your own home. Your telephone line. Didn’t you over audio devices in the house: your DNA, medical records, any questions on a private citizen. If you break the law, you want no longer private. If you are a criminal, you want no longer private. And I agree with that. As I’m sure, you also agree with that. So if you wish to prove yourself to be a criminal, Life is no longer private. There is a gray area between being accused and not accused and been convicted. This information is held on file, even if. You are proving to be an upright standing citizen. We are all looking forward to your all views on this subject. Many thanks for your time, and we’re looking forward to having a debate on this. Please research all Quotations; this may provide information to change the law. You are even finding out more ways of improving it.
AN EVOLVING HUMAN RIGHT Robert Walker The cases of Wainwright v Home Office1 and Campbell v MGN Ltd2 are reported in close proximity in the same volume of the English Law Reports. The contrast between the two cases could hardly be greater. Wainwright was a claim against the state by two citizens with no social or financial advantages. Mrs Mary Wainwright and her son Alan were humiliatingly strip-searched when visiting her other son in prison. They eventually obtained public funding to bring a claim just before the expiration of the limitation period. They had suffered their humiliation in 1997, before the coming into force of the Human Rights Act 1998, and their claim was ultimately rejected by the House of Lords in October 2003. Naomi Campbell, by contrast, was a celebrity super-model who issued a writ against the Daily Mirror newspaper on the very same day that it published an articled headlined “Naomi: I am a drug addict”. That was in 2001, after the coming into force of the Human Rights Act. Her appeal to the House of Lords succeeded (though by the narrowest of margins) in 2004. She succeeded even though the newspaper publisher was not a public authority, and it might have been thought irrelevant whether the Human Rights Act was in force or not. I have started with these two contrasting cases because their juxtaposition in the reports is a striking illustration of just how rapidly the English law of privacy has developed under the influence of the Human Rights Act 1998. One possible conclusion is that the tort of invasion of privacy was born in English law between 1 [2004] 2 AC 406
2October 2003 and May 2004 (though its conception might perhaps be claimed by the Court of Appeal in Douglas v Hello3in December 2000, or the differently constituted Court of Appeal in A v B Plc4in March 2002). The Human Rights Act transposed into domestic law the United Kingdom’s long-standing international obligations under the European Convention on Human Rights. Article 8 of the Convention declares (subject to qualifications that I will come back to) that: “Everyone has the right to respect for his private and family life, his home and his correspondence”. Under the Act5 it is unlawful for a public authority to act in a way incompatible with a Convention right, unless statute compels it to do otherwise. The victim of a breach of this duty has a remedy (which may include damages) against the public authority6. The expression ‘public authority’ is defined as including the court. Under s 3 of the Act all courts must so far as possible interpret legislation in a way that is compatible with Convention rights. There is a question whether the court is also obliged, under its negative duty not to act incompatibly with Convention rights, to develop or even remould the common law so as to remedy any perceived defects in its protection for human rights. This issue is often described as whether the Act had not only vertical effect (between the citizen and the state) but also horizontal effect (between one citizen 2 [2004] 2 AC 457 3 [2001] QB 967, paras 128-130 (Sedley LJ), discussed by Lord Hoffmann in Wainwright at paras 28-32 4 [2003] QB 195, paras 4-6 5 s 6 (this summary skates over some complexities in s.6(2)) 6 s 7
3and another – though that other might be a newspaper publisher). Wainwright gave no comfort to the horizontalists, but Campbell has given a very different message. Lord Hoffmann was the only Law Lord who delivered a full opinion in both cases. His opinion in Wainwright recognised personal privacy as an underlying value but firmly rejected what he called the previously unknown tort of invasion of privacy. He described it as “an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle”. He also regarded the coming into force of the Human Rights Act as weakening the argument for a general tort to fill gaps in the existing law.7 In Campbell, by contrast, without casting any doubt on the general conclusion in Wainwright, Lord Hoffmann attached great importance to the Human Rights Act, and saw its restriction to public authorities as anomalous:8“What human rights law has done is to identify private information as something worth protecting as an aspect of human autonomy and dignity. And this recognition has raised inescapably the question of why it should be worth protecting against the state but not against a private person … The result of these developments has been a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information … Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control information about one’s private life and the right to the esteem and respect of other people. These changes have implications for the future development of the law. They must influence the approach of the courts to the kind of information which is entitled to protection, the extent and form of publication which attracts a remedy and the circumstances in which publication can be justified”. 7 Footnote 1, paras 33-34 8 Footnote 2, paras 50-52
4Lord Hoffmann’s reference to trade secrets is a reminder that this area of the law is a development of the law of confidence which equity fashioned in order to protect confidential information entrusted by one person to another. There was an important step forward thirty years ago in the Spycatcher case9, a saga which led (among other things) to the British Cabinet Secretary being cross-examined in the Supreme Court of New South Wales. In the English part of that complex litigation the House of Lords extended the reach of the law of confidence to include not merely the original recipient, but anyone who had notice that the information in question was confidential. Subsequent case-law has extended the notion of what is confidential so as to include what is simply private. Article 8 of the European Convention, and decisions of the Court of Human Rights at Strasbourg, have had a strong influence on these developments10. Before looking at some of the English and European cases I want to draw your attention to two general points about them. The first concerns the court’s approach to analysing the question. The second concerns the process by which the court answers the question. I have quoted paragraph (1) of Article 8 and I must now add the important qualifications in paragraph (2): “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, 9Attorney General v Guardian Newspapers Limited [1990] 1 AC 109 10 There is a helpful summary in McKennitt v Ash [2008] QB 73, paras 8-10 (Buxton LJ)
5for the protection of health or morals, or for the protection of the rights and freedoms of others.” The rights and freedoms of others include freedom of expression, which is protected by Article 10. The textbook approach to Article 8 and other qualified Convention rights is to ask two questions. Is the right interfered with? If so, is the interference justified? If the answer to the first question is yes and to the second no, there is a breach of the right11. In practice, it is sometimes difficult, and it may not always seem worth the bother, to separate out the two questions. For instance in Campbell Lady Hale considered the case of a photograph of a celebrity doing nothing in particular in a public place12: “She makes a substantial part of her living out of being photographed looking stunning in designer clothing. Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk. There is nothing essentially private about that information nor can it be expected to damage her private life. It may not be a high order of freedom of speech but there is nothing to justify interfering with it.” In the last sentence Lady Hale is of course referring to interference with the Article 10 right of freedom of expression. As regards Article 8, is that non-interference or justification? I am not sure. Does it matter? I’m not sure about that either. In principle, courts should go through the discipline of analysing an issue correctly. But the more arguable or peripheral the degree of interference, the less will be 11 Footnote 2, paras 20-21; footnote 10, para 11 12 Footnote 2, para 154
6required by way of justification in order to avoid a breach. So sometimes the two questions do tend to get elided. The second general point is the way in which the court (which means, apart from wholly exceptional cases, a judge sitting without a civil jury) is to perform the balancing exercise. Judges (unelected judges, as the media are happy to remind us) have had the task of human rights adjudication put on them by Parliament. We must adjudicate, and we must give reasons. Where the issue concerns social and cultural values (rather than, for instance, fair trial) judges can bring to the task no specialised qualifications: only an open mind, a respect for both privacy and free speech, and a willingness to listen to both sides. At present, as the law develops, the favoured approach is for the judge to enquire carefully into the facts, and to make a decision based on evaluation of the particular facts. This approach was set out by Lord Steyn in Re S13 in four propositions: “First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.” The second and third of these steps are sometimes referred to as parallel analysis – analysis, that is, by reference to the two competing interests of privacy and free speech. 13Re S (A Child)(Identification: Restrictions on Publication) [2005] 1 AC 593, para 17; see also Re W [2006] 1 FLR 1, para 53
7Re S was a case in which the trial judge was asked in the interests of a five year old boy to ban normal reporting of the trial of his mother for the murder of his nine year old brother. The judge declined to do so. This awful situation was going to be known to the boy’s neighbours and school-fellows in any event, and he would need special care and support regardless of any media ban. Against that there is a strong public interest in the openness of the criminal justice system. The Court of Appeal and House of Lords upheld the trial judge’s decision. English courts14 have followed Strasbourg15 in holding that an individual’s Article 8 right to respect for his or her privacy is engaged whenever the circumstances are such as to give rise to a reasonable expectation of privacy. That is a wider and less demanding test than the formula (proposed by Gleeson CJ in Lenah Game Meats16 and adopted by the Court of Appeal of New Zealand in Hosking v Runting17)of disclosure of what would be highly offensive to a reasonable person of ordinary sensibilities. The English test is indeed so wide that it may be thought to rephrase the question rather than to answer it. So at present the English approach is highly fact-sensitive, but as the volume of case-law increases patterns of facts and practice are starting to emerge. Some of the questions to which the courts have begun to give answers are the following. What difference does it make if the claimant is a celebrity; or the minor child of a celebrity; or a celebrity role-model who has been behaving in a way that is not expected of a role-model? What difference does it make if the 14 Footnote 2, para 21 15Halford v UK (1997) 24 EHRR 523 16ABC v Lenah Game Meats (2001) 208 CLR 19917 [2005] 1 NZLR 1
8information is conveyed to the public not only in written or spoken words but also in photographs or videos? Does it make a difference if information is obtained by deception, or if photographs are taken covertly or in circumstances that amount to harassment? What about photographs taken in the street, or some other public place? There is no doubt that in privacy law those who are expected to have the thickest skins are politicians (who are likely, in most democracies, to hold elected office, though in the UK we have not yet completed the reform of our upper house). In democracies those who put themselves forward for public office must expect, and accept, that they are exposed to public scrutiny and criticism, and that the criticism will often be intemperate and unfair. The leading cases include the two Lange cases in Australia and New Zealand,18Sullivan in the United States19, Lingens at Strasbourg20, and Reynolds in the UK.21 In the important recent case of Von Hannover v Germany22 (concerned with the unremitting pursuit by paparazzi of Princess Caroline of Monaco) the Strasbourg court underlined the point: “A fundamental distinction needs to be drawn between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “imparting information and ideas on matters of public interest” it does not do so in the latter case.” 18Lange v ABC (1997) 189 CLR 520; Lange v Atkinson [2000] 3 NZLR 385 19New York Times v Sullivan (1964) 376 US 254 20Lingens v Austria (1986) 8 EHRR 103 21Reynolds v Times Newspapers Ltd [2001] 2 AC 127 22 (2004) 40 EHRR 1, para 63
9The Strasbourg Court23 has even upheld publication of information about the health of the former French president, M. Mitterand, on the ground that public concern about the health of the head of state outweighed the serious breach of professional confidence. The same sort of approach has been taken towards chief executives of multinationals who wield great economic power. The Strasbourg Court24 upheld the right of a French magazine, Le Canard Enchainé, to publish the tax return of the chief executive of Renault (at a time when it was making many of its workers redundant) and the English court25 has recently upheld the right of the Daily Mail to publish allegations that the former chief executive of BP had misused corporate resources to enable his live-in partner to be set up in business. Then there is a wider and vaguer class of persons who (in Lord Woolf’s words)26 “hold a position where higher standards of conduct can be rightly expected by the public”. Buxton LJ27 commented drily on this formula – “that is no doubt the preserve of headmasters and clergymen, who according to taste may be joined by politicians, senior civil servants, surgeons and journalists.” No doubt there is a good reason why the Lord Justice did not add judges and lawyers to those of whom higher standards of conduct can be expected. This is where the element of hypocrisy comes in – the unattractive spectacle of claiming, 23Plon (Societe) v France 18 May 2004 24Fressoz & Poire v France (2001) 31 EHRR 28 25Lord Brown of Madingley v Associated Newspapers Ltd [2008] QB 103 26A v B plc [2003] QB 195, para 11
10or pretending, to be better than you really are. One of the justifications relied on by the Daily Mirror in the Campbell case was that Naomi Campbell had not merely denied taking drugs, but had gone out of her way to emphasise that in this respect she was better than other models.28 Indeed the three-two split in the House of Lords was in large part a difference of opinion as to whether the newspaper’s justified publication of the fact of Ms Campbell’s addiction had been flawed by over-intrusive journalistic embroidery, especially the large photograph of her leaving a meeting of Narcotics Anonymous, and whether the Court of Appeal had been right to depart from the trial judge’s evaluation of that issue. Ms Campbell is a world-famous celebrity, and it is celebrities with whom the media have a particularly close and symbiotic relationship: film stars, pop stars, models, footballers, and transient beings who (for fifteen minutes at least) are “famous for being famous”. Lord Hoffmann’s view29 was that being a celebrity “…would not in itself justify publication. A person may attract or even seek publicity about some aspects of his or her life without creating any public interest in the publication of personal information about other matters.” The double meaning of “public interest” is an important point which has often been made, for instance by Lady Hale in Jameel30“There must be a real public interest in communicating and receiving the information. This is, as we all know, very different from saying that it is information that interests the public – the most vapid tittle-tattle about the activities of footballers’ wives and girl friends interests large sections of the public but no-one could claim any real public interest in our being told all about.” 27 Footnote 8, para 65 28 Footnote 2, para 24 29 footnote 2 para 57
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Current Position of Privacy Law in the UK
Info: 4899 words (20 pages) Law Essay
Published: 8th Aug 2019
Jurisdiction(s): UK Law
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In recent years, the law on privacy has developed from the time of the traditional breach of confidence cases such as Coco v Clark (1969) [1] and Attorney-General and Observer Ltd. v. Times Newspapers Ltd. (“Spycatcher “) [2] to the Human Right era with cases such as Von Hannover v Germany (2005) [3] , Campbell v Mirror Group Plc (2004) [4] , PG and JH v United Kingdom (2001) [5] . These developments have lead to the acknowledgement of a legitimate expectation of protection and respect for private life.
However, privacy has being consider in several cases such as Peck v United Kingdom (2003) [6] in which the European Court of Human Right acknowledge that even though defendant was filmed in a public street, he was not there for the purpose of participating in any public event and he was not a public figure therefore his right under Art. 8 were violated [7] . Although, the plaintiff in this case was successful in his claim, this case expose further gaps in domestic privacy protection and thereby calling for more legislative reforms, this time in the area of close circuit television which is not specifically covered by the Regulation of Investigatory Power Act 2000 [8] . This highlighted the argument that English law do not have an adequate remedy to cover invasion of privacy through capture images either still or recording in semi-public and public places.
Chapter 1: This chapter will provide an introduction to UK privacy protection before the enactment of the Human Right Act 1998. It will focus mainly on, the remedy of trespass and traditional breach of confidence.
Chapter 2: This chapter will explore the changes made to privacy in the United Kingdom after the Human Right Act was passed.
Chapter 3: This chapter will explore the meaning of public privacy and the development of this in the United Kingdom by exploring the decision of the House of Lords in Campbell v Mirror group newspaper and the decision of the ECHR in Hannover v Germany and its effects on English law on privacy.
Chapter 4: This chapter will analyse the decisions in Wainwright v United Kingdom and Peck v United Kingdom analysing the loopholes in the law of privacy after the emergence of the Human Right.
Conclusion: This final chapter will take into consideration all the arguments developed from case law and Government consultation papers, in order to draw on a conclusion of whether the current law on privacy is adequate to deal with all kinds of privacy, especially, those invaded with cameras and CCTV surveillance and if reform is needed how it can be introduced into the English legal system, while also considering the implication of these reforms.
Chapter One
Introduction to the UK privacy protection before the Human Right Act 1998.
What is Privacy?
The right to privacy refer to the general right to be left alone, a desire to be allowed to enjoy a particular space, either alone or with others, which the state or others should not be allowed to penetrate [9] .
According to the Calcutt Committee, privacy was defined as;
The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication [10] .
Legal Academic writers such as Winfield defined infringement of privacy as an ‘unauthorised interference with a person’s seclusion of himself or his property from the public.’ [11] The most concise was the one adopted by Judge Cooley, when he called it ‘the right to be let alone.’ [12]
W.A. Parent has complained that a conception in which attention can invade privacy is far too broad, because it means that we lose privacy every time we step outside the house and therefore become a subject of at least some attention from strangers [13] ; this, however, misses the point that privacy need not be an absolute state of affairs to be valuable and that in fact in our everyday lives are constant trade off between sociability, human interactions, the formations of relationships, the aim is for a reasonable degree of privacy not an absolute state [14] .
As Helen Fenwick suggested, a legal right to privacy seek to give the individual the ability to apply his or her own standards in terms of information and attention, within ordinary societal constraints [15] . Although, this has been the major issue when considering privacy in public places, as a result of the differences in jurisdiction between the European court of Human Right and domestic courts.
English Law has been reluctant to recognise a general law of personal privacy [16] . Although, there have been several debates on the need for privacy right, numerous objections have arisen as to the development of this new area of law and effectively hindered its establishment. These have included the concerns over the effect it would have on the press, limiting what was reported on, also known as the “chilling effect”.
However, the right to respect for privacy as has for sometime been recognised as part of domestic law of a number of countries. For example, the United States of America have the US Privacy Act 1974 and the tort or torts of invasion of privacy. In Canada, they have the Canadian Protection of Privacy Act 1974 and in France, Art 1382 of the French Civil Code [17] .
The legal debate on whether the United Kingdom should recognise a remedy for invasion of privacy (by statue or common law) has been continuing since 1961 when the private member bill “A Right to Privacy” was introduced by Lord Mancroft in the House of Lords [18] . The first clause of this bill proposed that;
A person should have a right of action against any other person who without his consent published of or concerning him in any newspaper or by means of cinematography, exhibition or television or sound broadcasting words relating to his personal affairs or conduct.
Although two judges, Lord Goddard and Denning spoke in favour of the Bill, the third Judge speaking for the government Viscount Kilmuir LC felt;
that the difficulties involved in creating a new legal right, which would restrain the improper invasion of privacy without at the same time interfering with proper reporting of matters which ought to be reported, were such as to outweigh the merits of the proposal [19] .
These were followed by governmental expert reports on the matter such as the JUSTICE Report (1970) [20] , The Calcutt Report (1990) [21] and The National Heritage Report (1993) [22] .
The Calcutt Report on invasion of privacy concluded that there was no “pressing social need” to provide remedy for those whose image or voices are appropriated without their consent. They suggested protection of Breach of Confidence; despite the fact that it was questionable whether it can cover this aspect of privacy.
The Younger Committee’s Report on Privacy’ in 1972 was carried out in response to the government’s query on whether “….legislation is needed to give further protection to the individual citizen…against intrusions into privacy although it recommended new tortuous liabilities and highlighted the possibility of using the equitable principle of breach of confidence as a cause of action for protecting information unlawfully acquired [23] .
The Younger’s in their recommendation recognised that there is a need for changes in law as regards surreptitious unlawful surveillance by the means of technical device and also unlawful surveillance by such means [24] . In terms of the two main kind of invasion of privacy identified by the Younger Committee, protection is offered by the torts of trespass. Information privacy is mainly protected by the law of breach of confidence [25] .
Even Judges have recognised the need for privacy legislation. Lord Denning in the case Schering Chemical v Falkman Ltd (1982) [26] he stated that, ‘while freedom of expression is a fundament right, so also is the right to privacy.’ [27]
Despite these recommendations, it has not been smooth sailing in favour of general law of privacy in the United Kingdom. Rather indirect piecemeal protection of privacy has been afforded where the facts on individual case have permitted through the application of existing cause of action. A variety of areas of torts and equity, such as breach of confidence, trespass, copyright and defamation are use to defend general right to privacy [28] .
For example in Kaye v Robertson Glidewell LF stated: ‘It is well known that in English law there is no right to privacy….in the absence of such right the plaintiff’s advisers have sought to base their claim on other well established right of action [29] . It is clear from this statement that these areas and others were treated as covering specific and distinct interests which only incidentally offered protection to privacy.
This does not mean that protection was not offered prior to the enactment of the Human Right Act 1998. The development of these laws has been all over the place and not systematically directed at privacy as such. Breach of confidence and trespass are common law remedies which are most likely to assist a litigant complaining of disclosure of personal information obtained surreptitiously [30] . However, these remedies are very limited; breach of confidence is more focused on contractual relationship of confidence between parties and trespass on property rights.
The most difficult question with these remedies
This is despite the fact that the term ‘privacy’ was used in a number of rulings [31] .Without doubt such arrangement is questionable, given the amount of distress and harm that can be cause to an individual when their images is recorded and distributed in public places. Any non-consensual photography or surveillance is a compromise of dignity and secret surveillance can logically never be consensual, and should never be allowed
Simply because we venture into public, to go about our further our private lives, we do not as a matter of fact relinquish all claims to a private sphere. Even tactic consent to being observed by others cannot automatically extend to their taking and justification of publishing photographs
The Law of Trespass as Privacy Protection
The law of trespass to the person, alongside the law of assault can protect an individual from interference with his or her physical person. In addition to these, law of trespass to land can impact on the right to private and home life and thus be relied on in the claim of invasion of privacy.
The law of trespass to land is primarily concerned with the protection of property rather than privacy as such but it is capable of protecting specific aspects of a person’s right to private life.
The law of trespass does provide some privacy protection in respect of land which is in the possession of an individual however it is very limited as the claimants has to prove the following;
that the interference with the plaintiff’s interest was direct; and
some physical contact with the plaintiff or his property.
This principle was relied on in Hickman v Maisey (1900), [32] where the claimant relied on trespass to prove invasion of privacy. In this case the claimant owned and occupied land on which for a fee he allowed a race horse trainer to train horse. The defendant, a racing tout, observed the horses from a highway that crossed the claimant’s land, with a view to gain information about the horses. The claimant brought an action in trespass for damages and an injunction. He was successful with claim and was awarded damages in addition to the injunction.
Trespass however is very limited as a remedy for privacy. To make a successful claim a defendant’s unauthorised presence on claimant’s land is very significant [33] . It will only really prove useful when privacy is infringed by entry onto the victim’s own land.
In situation where there is invasion onto land by another, the victim will depend upon the other’s willingness to sue which will quite naturally often not be in his interest. For example in Kaye v Robertson, the hospital authority would have been able to sue for trespass as the reporter committed trespass against them, but the victim of invasion of privacy would not because he’s only a hospital patient and intrusion was not at his personal property. Therefore only an individual with an interest in the land over which the infringement of privacy right occurs has a remedy in trespass.
An injunction may be granted to prevent a future trespass; one may not be available to prevent the publication of information or photograph obtained as a result of the trespass [34] . It could also be analyse that if the situation of Hickman had been that the defendant watched the horses from a land that was not claimants, claimants would not have been successful with the claim of trespass as a privacy remedy.
This lay more emphasis on the fact that an individual cannot expect a reasonable expectation of privacy when engaging in their everyday activities which acquire a private quality, such as out walking in the public. There can be no protection if the victim is in a public place.
Breach of Confidence as Privacy Protection
The concept ‘breach of confidence’ has been the strongest candidate for increasing the protection of privacy in the English Law. The Younger Committee considered the law of breach of confidence offers the most effective protection of privacy in the whole of existing English law civil or criminal as it covers more aspect of private privacy than trespass [35] .
An action of Breach of Confidence is the closest in substance to an action of invasion of privacy when it comes to disclosure of personal information. Traditionally this remedy is very limited as it does not cover all areas of privacy especially invasion through surreptitious means [36] .
The equitable principle of breach of confidence has developed from its original purpose of dealing with commercial information into also providing protection for disclosure of personal information.
The traditional ingredients for a successful claim for breach of confidence were set down by Megarry J in Coco v A.N. Clark (Engineers) Ltd [37] :
The information must have ‘the necessary quality of confidence about it’;
The information ‘must have been imparted in circumstances importing an obligation of confidence’; and
There must have been an ‘unauthorised use of that information to the detriment of the party communicating it’.
Even though the focus of breach of confidence was the protection of commercial information, this did not mean that personal information was not protected at all. However, according to Megarry J in Coco v A.N. Clark Engineers Ltd [38] , invasion of privacy in public places could not be classified as breach of confidence. Megarry V.C in his statement said “something which is public knowledge cannot per se provide any foundation for proceeding for breach of confidence”. This statement highlights the loopholes in breach of confidence as a law protecting privacy because the courts have not expressly considered the question of whether a person can have a reasonable expectation of privacy in the public places because they made it clear that confidentiality cannot be attached to information which had reached the public domain.
Lord Goff elaborated on this in Attorney-General and Observer Ltd. v. Times Newspapers Ltd. (“Spycatcher”) [39] . He said: The principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain then, as a general rule, the principle of confidentiality can have no application to it. That is; information cannot be confidential if everyone knows it. However, it is difficult to decide when information is in classified to be in the public domain. [40]
Under the traditional model of confidence, one or two ingredients had to be satisfied for an obligation of confidentiality to arise. The first was that, at least in cases involving personal, as opposed to commercial information there had to be some identifiable, pre-existing, intimate or necessarily confidential relationship between confider and confidant, such as professional relationship from which the obligation of confidence could be inferred [41] .
As Lord Hoffman analysed; Breach of confidence was an equitable remedy and equity traditionally fastens on the conscience of one party to enforce equitable duties which arise out of his relationship with the other. So the action did not depend upon the personal nature of the information or extent of publication but upon whether a confidential relationship existed between the person who imparted the information and the person who received it [42] .
Personal information, even if it had the necessary quality of confidence, could only be protected if it been imparted in circumstances importing an obligation of confidence. Historically, the action for breach of confidence required a pre-existing relationship of confidence between the parties such as professional relationship of trust [43] .
This requirement laid heavy stress on the limitation of traditional breach of confidence as a doctrine centred more or less on a relationship of confidence, as it could not offer effective privacy protection where as it is most commonly found the wrong complained of was an intentional and even surreptitious taking of information with a view to publication.
Privacy however, is not relationship based in the same way as confidence. Anyone might invade an individual’s privacy whether or not there has been any previous contract let alone a relationship of trust and confidence between them [44] . Clearly, such requirement would be fatal when breach of confidence is employ to protect privacy.
Subsequent cases however, showed a trend toward a new approach towards breach of confidence. In Francome v Mirror Group Newspaper Ltd [45] , an injunction was sought to restrain publication of an illegally tapped phone conversation. This case paid more attention to the way the information was gather rather than the relationship between the parties and satisfying the criteria laid down in Coco v Clark and thereby increased the scope of breach of confidence as a privacy remedy.
Further development of this expansion can be confirmed through the statement made by Browne- Wilkinson in Stephens v Avery that “….the existence of confidential relationship was no longer the determining factor [46] . Instead, confidentiality was enforced simply on the grounds that the information was received and ‘on the basis that it was confidential.
The span of breach of confidence was furthered developed in Attorney General v Guardian Newspaper Ltd, in which Lord Geoff identified the requirement to be:
“…confidential information [which] comes to the knowledge of a person…in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should precluded from disclosing the information to others” [47] .
He also noted that there would be an obligation of confidence in a situation whereby “…an obviously such as a private diary, is dropped in a public place and then picked up by a passer-by.” Lord Keith furthered on, commented that breach of confidence should seek to protect the right to privacy [48] .
The new model re-interpreted the implied agreement of confidentiality; it is now implied into dealing between parties, not on the basis of mutual, though unspoken agreement on the matter, but on the at basis that a reasonable man in the position of the defendant would assume such an obligation [49] .
It may now cover cases where obviously personal information is surreptitiously obtained by the media and then published without the consent, since in such cases it would be open to the court to find that the reasonable man would assumed an obligation of confidence [50] .
When used this way, the essential importance served by protecting confidence thus becomes simply preventing private or personal information entering the public domain without the plaintiff’s consent. While still termed ‘breach of confidence’ the action becomes almost indistinguishable from a ‘pure’ privacy tort [51] .
While these changes emphasised a significant development on this area of law, it still does not effectively cover the invasion of privacy through the use photographs or recordings without the consent of those depicted and common law was not showing any willingness either to cover this limitation in law.
This incapability of English law was illustrated only a year later, in Kaye v Robertson [52] .
The claimant (Gordon Kaye) was a well known actor who was involved in a serious car accident resulting in extensive head surgery. Whilst recovering in his hospital bed, journalist from the “The Sunday Sport”, ignoring signs put up by the hospital prohibiting such action, gained entry and began taking photographs using flash photography and interviewing the claimant. When it was announced by the defendants that publication was to take place, a friend acting on behalf of the claimant sought an injunction.
The Court of Appeal was clearly shocked at the defendants’ actions as Lord Bingham highlighted in his statement that; “Any reasonable and fair-minded person hearing the facts … would in my judgment conclude that these defendants had wronged the plaintiff” and considered that the plaintiff had suffered “a monstrous invasion of his privacy … “. There was no clearer situation of a person having the “right to be let alone by strangers with no public interest to pursue … “. Notwithstanding this monstrous invasion of the plaintiff’s privacy, the Court conceded that invasion of privacy was not actionable under English law
Kaye v Robertson, illustrated that at that point the scope of breach of confidence was not wide enough to protect privacy in a broad sense and confirmed that UK law did not recognise a law of privacy.
As much as Mr Kaye deserved protection, English law failed to provide an adequate remedy and it was very much criticized in Kaye v Robertson.
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Privacy in English law – Wikipedia
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Privacy in English law
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Privacy in English law is a rapidly developing area of English law that considers situations where individuals have a legal right to informational privacy – the protection of personal or private information from misuse or unauthorized disclosure.[1] Privacy law is distinct from those laws such as trespass or assault that are designed to protect physical privacy. Such laws are generally considered as part of criminal law or the law of tort. Historically, English common law has recognized no general right or tort of privacy, and was offered only limited protection through the doctrine of breach of confidence and a “piecemeal” collection of related legislation on topics like harassment and data protection. The introduction of the Human Rights Act 1998 incorporated into English law the European Convention on Human Rights. Article 8.1 of the ECHR provided an explicit right to respect for a private life. The Convention also requires the judiciary to “have regard” to the Convention in developing the common law.[2]
Contents
Definition[edit]
The earliest definition of privacy in English law was given by Thomas M. Cooley who defined privacy as “the right to be left alone”.[3] In 1972 the Younger Committee, an inquiry into privacy stated that the term could not be defined satisfactorily. Again in 1990 the Calcutt Committee concluded that: “nowhere have we found a wholly satisfactory statutory definition of privacy”.[3]
Common law[edit]
Further information: Kaye v Robertson and Wainwright v Home Office
There is currently a freestanding right to privacy in common law.[4] This point was reaffirmed when the House of Lords ruled in Home Office v Wainwright (a case involving a strip search undertaken on the plaintiff Alan Wainwright while visiting Armley prison).[5] It has also been stated that the European Convention on Human Rights does not require the development of an independent tort of privacy.[6] In the absence of a common law right to privacy in English law torts such as the equitable doctrine breach of confidence,[7] torts linked to the intentional infliction of harm to the person[8] and public law torts relating to the use of police powers[9] have been used to fill a gap in the law. The judiciary has developed the law in an incremental fashion and have resisted the opportunity to create a new tort.[10]
Expansion of privacy laws[edit]
Main article: Breach of confidence in English law
British Radio Jockey Sara Cox‘s case against The People newspaper was one of the first celebrity privacy cases. The media referred to the case as a “watershed”. The disc jockey sued after the newspaper printed nude photographs of her taken while on her honeymoon. However the case was settled out of court and so did not establish a precedent.[11] The decision was seen as discrediting the Press Complaints Commission[12]
The expansion of the doctrine of breach of confidence under the Human Rights Act began with the Douglas v Hello! decision. Section 6 of the Human Rights Act requires English courts to give effect to the rights in the Convention when developing the common law. There is no need to show a pre-existing relationship of confidence where private information is involved and the courts have recognized that the publication of private material represents a detriment in itself.[6] The Human Rights act has horizontal effect in disputes between private individuals meaning that the Human Rights Act is just as applicable as if one party had been a public body.[13] Breach of confidence now extends to private information (regardless of whether it is confidential) so as to give effect to Article 8 of the European Convention on Human Rights. Before this breach of confidence afforded “umbrella protection” to both personal and non-personal information.[1]
ECHR challenge[edit]
Main articles: Mosley v News Group Newspapers Limited, Max Mosley v United Kingdom, and Article 8 of the European Convention on Human Rights
Following Max Mosley‘s successful action against the News of the World newspaper for publishing details of his private life, he announced that he would challenge English law’s implementation of the Article 8 right to privacy guaranteed when the Human Rights Act implemented the European Convention on Human Rights into English law.[14] The European Court of Human Rights (ECHR) was asked to rule on the issue of “prior notification”. This would require journalists to approach the subject of any investigation and inform them of the details of any allegations made about them, therefore allowing an injunction to be claimed.[14] The ECHR ruled that domestic law was not in conflict with the convention.[15]
Debate[edit]
The increasing protections afforded to the private lives of individuals has sparked debate as to whether English law gives enough weight to freedom of the press and whether intervention by Parliament would be beneficial. The editor of the satirical magazine Private Eye Ian Hislop has argued against the development of English privacy law. He told BBC’s Panorama: “You don’t have to prove it [an allegation] isn’t true, you just have to prove that it’s private by your definition. And in some of the cases the definition of privacy is pretty weak.”[16] However, Liberal Democrat politician Mark Oaten has stated that the press were right to expose details of his private life:
“I concluded that however awful it may be, it’s better to have a press which can expose MPs’ private lives because it means we have a free press… it means we can expose corruption.”[16] Max Mosley has argued for the further advancement of the law[17] whereas the editor of the Daily Mail newspaper Paul Dacre has accused Mr Justice Eady, the judge in the Mosley case, of bringing in a privacy law by the back door.[18]
Key cases[edit]
Bernstein of Leigh v. Skyviews & General Ltd
Mosley v News Group Newspapers Limited
Campbell v Mirror Group Newspapers Ltd
Theakston v Mirror Group Newspapers Ltd
His Royal Highness the Prince of Wales v. Associated Newspapers Ltd
Halliday v Creation Consumer Finance Ltd (CCF)
Murray v Big Pictures (UK) Ltd
Wood v Commissioner of Police for the Metropolis
European rulings[edit]
See also[edit]
2011 British privacy injunctions controversy
European Convention on Human Rights
Further reading[edit]
J. Morgan, “Privacy, Confidence and Horizontal Effect: “Hello” Trouble” (2003) 62 (2) Cambridge Law Journal 444
H. Fenwick and G. Phillipson, “Confidence and Privacy: A Re-Examination” [1996] Cambridge Law Journal 447.
H. Fenwick and G. Phillipson, “Breach of Confidence as a Privacy Remedy in the Human Rights Act Era” (2000) 63 Modern Law Review 660.
R. Singh and J. Strachan, “Privacy Postponed” [2003] European Human Rights Law Review Special Issue: Privacy 12-25.
Notes and references[edit]
^ Jump up to:a b http://www.11sb.com/pdf/privacyaftermaxmosley.pdf
^ Jump up to:a b “Princess Diana, Privacy Laws And Press Freedom In The United Kingdom”. Leeds.ac.uk. 1997-10-30. Retrieved 2009-07-03.
^ Home Office v Wainwright [2001] EWCA Civ. 2081, Gordon Kaye v. Andrew Robertson and Sport Newspapers Ltd
^ Dyer, Clare (2003-10-17). “Law lords rule there is no right to privacy | UK news”. The Guardian. London. Retrieved 2009-07-03.
^ Jump up to:a b http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdf
^ A v. B plc [2003] Q.B. 195.
^ Home Office v Wainwright [2001] EWCA Civ. 2081.
^ Ellis v Chief Constable Essex Police [2003] EWHC 1321.
^ [2001] EWCA Civ. 2081, at para. 42.
^ “Cox privacy case ‘a watershed'”. BBC News. 2003-06-07. Retrieved 2010-05-22.
^ “Privacy law remains confused”. BBC News. 2003-06-09. Retrieved 2010-05-22.
^ See Lord Nicholls [17] – [18] and Lord Hoffman [50] in Campbell v MGN [2004]
^ Jump up to:a b “Programmes | Law in Action | Mosley v UK”. BBC News. 2009-02-24. Retrieved 2009-07-03.
^ Clive Coleman (2011-05-10). “BBC News – Max Mosley loses European court privacy law bid”. Bbc.co.uk. Retrieved 2013-10-27.
^ Jump up to:a b “UK | Is it farewell for Kiss and Tell?”. BBC News. 2009-06-15. Retrieved 2009-07-03.
^ “BBC – Panorama – Max Mosley on his right to privacy”. BBC News. 2009-06-12. Retrieved 2009-07-03.
^ “UK | Mail editor accuses Mosley judge”. BBC News. 2008-11-10. Retrieved 2009-07-03.
External links[edit]
Can I Sue Google If It Says I’m Gay? The Tales of Internet Defamation in the UK
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Category:English privacy law
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Articles relating to English privacy law
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This category has only the following subcategory.
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► English privacy case law (37 P)
Pages in category “English privacy law”
The following 12 pages are in this category, out of 12 total. This list may not reflect recent changes (learn more).
A
Absolute privilege in English law
Absolute privilege in English law
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Absolute privilege is a complete defence to an action for defamation in English law. If the defence of absolute privilege applies it is irrelevant that a defendant has acted with malice, knew information was false or acted solely to damage the reputation of the plaintiff.[1] Absolute privilege can be deployed in a narrow range of cases. Statements made in judicial proceedings are protected as are communications between a solicitor and their client. The Bill of Rights of 1689 provides that proceedings of the Parliament of the United Kingdom are also covered by absolute privilege.
Reports of court proceedings
Sections 14(1) to (3) of the Defamation Act 1996 read:
(1) A fair and accurate report of proceedings in public before a court to which this section applies, if published contemporaneously with the proceedings, is absolutely privileged.
(2) A report of proceedings which by an order of the court, or as a consequence of any statutory provision, is required to be postponed shall be treated as published contemporaneously if it is published as soon as practicable after publication is permitted.
(3) This section applies to—
(a) any court in the United Kingdom,
(b) the European Court of Justice or any court attached to that court,
(c) the European Court of Human Rights, and
(d) any international criminal tribunal established by the Security Council of the United Nations or by an international agreement to which the United Kingdom is a party.
In paragraph (a) “court” includes any tribunal or body exercising the judicial power of the State.[2]
The defence under this section is excluded by section 8(6) of the Rehabilitation of Offenders Act 1974 (as amended by subsection (4) of this section).
Section 14 replaces section 3 of the Law of Libel Amendment Act 1888 and section 8 of the Defamation Act 1952.
Inquiries
Section 37(3) of the Inquiries Act 2005 provides:
For the purposes of the law of defamation, the same privilege attaches to—
(a) any statement made in or for the purposes of proceedings before an inquiry (including the report and any interim report of the inquiry), and
(b) reports of proceedings before an inquiry,
as would be the case if those proceedings were proceedings before a court in the relevant part of the United Kingdom.[3]
Welsh assembly
Section 42 of the Government of Wales Act 2006 provides:
(1) For the purposes of the law of defamation—
(a) any statement made in Assembly proceedings, and
(b) the publication under the authority of the Assembly of any statement,
is absolutely privileged.
(2) The Welsh Ministers may by regulations make provision for and in connection with establishing in any legal proceedings that any statement or publication is absolutely privileged by virtue of subsection (1).
(3) No regulations are to be made under subsection (2) unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, the Assembly.
(4) In this section “statement” has the same meaning as in the Defamation Act 1996 (c. 31).[4]
This section replaces section 77 of the Government of Wales Act 1998.
Reports by the Parliamentary Commissioner for Administration
Section 10(5) of the Parliamentary Commissioner Act 1967 provides:
For the purposes of the law of defamation, any such publication as is hereinafter mentioned shall be absolutely privileged, that is to say—
(a) the publication of any matter by the Commissioner in making a report to either House of Parliament for the purposes of this Act;
(b) the publication of any matter by a member of the House of Commons in communicating with the Commissioner or his officers for those purposes or by the Commissioner or his officers in communicating with such a member for those purposes; .
(c) the publication by such a member to the person by whom a complaint was made under this Act of a report or statement sent to the member in respect of the complaint in pursuance of subsection (1) of this section;
(d) the publication by the Commissioner to such a person as is mentioned in subsection (2) [or (2A)] of this section of a report sent to that person in pursuance of that subsection.[5]
Local Commissioner in Wales
Section 74 of the Local Government Act 2000 provides:
For the purposes of the law of defamation, any statement (whether written or oral) made by a Local Commissioner in Wales in connection with the exercise of his functions under this Part shall be absolutely privileged.[6]
Fair trading
Section 82(2) of the Fair Trading Act 1973 provides:
For the purposes of the law relating to defamation, absolute privilege shall attach to any report of the Advisory Committee or of the Commission under this Act.[7]
Competition
Section 57 of the Competition Act 1998 provides:
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision made, by the Director in the exercise of any of his functions under this Part.[8]
Enterprise
Section 108 of the Enterprise Act 2002 provides:
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the OFT, [OFCOM,] the Commission or the Secretary of State in the exercise of any of their functions under this Part.[9]
Section 173 of that Act provides:
For the purposes of the law relating to defamation, absolute privilege attaches to any advice, guidance, notice or direction given, or decision or report made, by the OFT, by the Secretary of State, by the appropriate Minister (other than the Secretary of State acting alone) or by the Commission in the exercise of any of their functions under this Part.[10]
History[edit]
Section 69(2) of the Courts and Legal Services Act 1990 formerly provided:
For the purposes of the law of defamation, the publication by the Lord Chancellor, a designated judge or the Director of any advice or reasons given by or to him in the exercise of functions under this Part shall be absolutely privileged.[11]
See also[edit]
References[edit]
^ Loveland, Ian (8 June 2000). Political Libels: A Comparative Study. Hart Publishing. ISBN 978-1-84113-115-3. page 11
^ Copy of section 14 of the Defamation Act 1996, from Legislation.gov.uk
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Anonymised injunctions in English law
B
Breach of confidence in English law
2011 British privacy injunctions controversy
H
Hyper-injunctions in English law
I
L
List of known legal cases involving super-injunctions
List of privacy injunction cases in English law
M
N
P
S
Super-injunctions in English law
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Our privacy threatened, but more changes to make the government-private. Are we losing our rights to Private as in the word private
I want to hear from you tell me about it. Let’s get the truth out there.
All of you are looking for your feedback regarding privacy. Your privacy. What about your private property. If you live in a council house or a leased place, the owner can access your house. At a moment’s notice. Your home and personal possessions. Questions from people have asked for assistance on this, so we are all interested in your views. I want to get your perspective on this, thank you for your interest, and we are all looking forward to reading your stories and information about your privacy. Please leave your names private. Do you realize that you sine your private-a-way rights when you sign a piece of paper? If you’re unemployed, if you get assistance through benefits, you’re open. Being trapped and tracked and then manipulated to keep you from moving forward—the repression of a professional society. Suppose you signed a parking ticket or any official document. Please, let’s debate this so we can all hear your views on the grey place. We are interested in going for right standing citizens in private areas all private places such as your own home. Your telephone line. Didn’t you over audio devices in the house: your DNA, medical records, any questions on a private citizen. If you break the law, you want no longer private. If you are a criminal, you want no longer private. And I agree with that. As I’m sure, you also agree with that. So if you wish to proven yourself to be a criminal, Life is no longer private. There is a grey area between being accused and not accused and been convicted. This information is held on file, even if. You are proving to be an upright standing citizen. We are all looking forward to your all views on this subject. Many thanks for your time, and we’re looking forward to having a debate on this. Please research all Quotations; this may provide information to change the law. You are even finding out more ways of improving it.