Chapter 16 Answers to end-of-chapter questions

Invasion of privacy

1. Why do you think the judiciary and various governments in the UK have been so reluctant to formulate a specific law relating to the invasion of privacy?

There have been, as we explained in the chapter (see e.g. section 16.2), many reasons given for why no such law has ever been formulated in the UK, including definitional problems (what is privacy?), concerns about too many claims (or too many frivolous claims – 'floodgates' argument), a lack of a suitable remedy and the impact the creation of a privacy law would have on freedom of expression. Lord Hoffmann, in Wainwright v Home Office, said that English law contains no specific tort of invasion of privacy and does not need to create one. He said (at 18):

'The need in the United States to break down the concept of "invasion of privacy" into a number of loosely-linked torts must cast doubt upon the value of any high-level generalisation which can perform a useful function in enabling one to deduce the rule to be applied in a concrete case. English law has so far been unwilling, perhaps unable, to formulate any such high-level principle. There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. Sir Brian Neill's well known article "Privacy: a challenge for the next century" in Protecting Privacy (ed. B Markesinis, 1999) contains a survey. Common law torts include trespass, nuisance, defamation and malicious falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act 1997 and the Data Protection Act 1998. There are also extra-legal remedies under Codes of Practice applicable to broadcasters and newspapers. But there are gaps; cases in which the courts have considered that an invasion of privacy deserves a remedy which the existing law does not offer. Sometimes the perceived gap can be filled by judicious development of an existing principle. The law of breach of confidence has in recent years undergone such a process: see in particular the judgment of Lord Phillips of Worth Matravers MR in Campbell v MGN Ltd [2003] QB 633. On the other hand, an attempt to create a tort of telephone harassment by a radical change in the basis of the action for private nuisance in Khorasandjian v Bush [1993] QB 727 was held by the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655 to be a step too far. The gap was filled by the 1997 Act.'

He seems to suggest that the primary (modern) reason for not formulating a specific law on invasion of privacy is that we simply don't need one, as existing mechanisms in the law are sufficient to protect people's privacy interests.

Do you agree with him and/or with any of the other reasons given? Have a look back at the Counterpoint box in section 16.2 to see what we think. For an even better answer to this question, you might want to include discussion (and critique) of recent case law – particularly revolving around (super) injunctions and also consider the reasons for establishing, and the findings of, the Leveson Inquiry, as well as developments leading to there now being (‘officially’) a tort of misuse of private information (Google Inc v Vidal- Hall and others [2015]). Where did this stem from, and why? How has human rights law affected the development of tort law and privacy? Do we in fact now have a tort of invasion of privacy, in all but name? If so, on what principles does it rest and how does the case law (especially the most recent cases) demonstrate these in practice?

2. Look at the recent cases that revolve around invasions of privacy (for example, von Hannover, Douglas, Campbell, Murray, Mosley). How many of the claimants in these cases really had a 'reasonable expectation of privacy' in respect of the information they did not want to be in the press? Can you define 'a reasonable expectation of privacy' any more easily than 'privacy'?

An answer to this question would involve knowledge of the particular situations the claimants found themselves in when the alleged violation of privacy occurred. All of the claimants are 'famous' in one way or another (a princess, Hollywood film star, supermodel, author and Formula One racing boss, respectively). A better answer would consider whether there were any differences in these cases that would mean that for some of them the right to have their privacy interest was clearer than in others. For example, you might agree that, following von Hannover and Murray, children of famous people should not be photographed, even in public places (there is very recent case law considering issues around the same topic – see e.g. Weller and others v Associated Newspapers Ltd [2015]; PJS v News Group Newspapers Ltd [2016]). But this is a debate – and this should be recognised. What harm occurs here? Is it the child taking the claim or, read differently, are cases like Murray better seen as claims by the parent – in which case, why should it matter that she was on a public street with her son?

Similarly, while what happened in Murray happened in a public place, Max Mosley was behind closed doors when the pictures were taken of him – engaged in consensual sexual activity (and there are many other privacy cases emerging over recent years where it is the details of the claimant’s consensual sexual activities that are at issue – including PJS). Should this make his case the strongest one? Or does the fact that Douglas involved something as personal as a wedding put it on the same footing? Or is it the fact that there is another issue – breach of contract – in the Douglas case that makes it seem like the correct decision (if it does)? What about Campbell – again, the 'privateness' of medical treatment might single this case out as making her deserving of protection. An important thing to consider here is the use of breach of confidence, and how the development of this equitable concept has made it easier for the courts to define what a reasonable expectation of privacy is.

What we are discussing here is whether the expectations of privacy that these people had were, in fact, reasonable – and, as illustrated, there may be different reasons why we believe this to be the case. However, there are also counter-arguments. Does the fact, for example, that Michael Douglas and his wife had already sold pictures of their high-profile wedding to one glossy magazine mean that their expectation of privacy was not reasonable? Is it important to expose people – like professional footballers or politicians – who could be defined as ‘role models’ (see e.g. Terry, Trimingham, AAA).

An even better answer would not limit itself to the five cases mentioned in the question title: these are only examples and seemingly more and more cases are being reported. Are there other cases where you feel that a finding that there was a reasonable expectation of privacy was questionable (perhaps Jagger? Rocknroll?) or where you agree that the claimant's privacy right should have been protected (perhaps McKennitt?). What about some of the more recent cases involving injunctions and so-called super-injunctions (e.g. Donald, PJS)? To be more critical, you might discuss further cases in which you feel that the privacy right should have been acknowledged, but wasn't (perhaps Wainwright? Maybe Rhodes?) could be considered.

Even that is not the end of the answer. You also have to look at whether a 'reasonable expectation of privacy' is any easier to define than 'privacy’ itself. There are (at least) two parts to this – first, we have to assume that we know what we are talking about when we use the word privacy, in order to be able to defend a reasonable expectation of it. Latterly, much of the definition (if there is one) has focused on the right given to individuals under Article 8 of the ECHR. More importantly, we can question the highly subjective nature of what is a ‘reasonable’ expectation (and for whom). Perhaps you could argue that celebrities have less of a 'reasonable' expectation of privacy as regards anything they do in a public space – after all, the public might be interested in what they look like when they 'pop out to the shops for a bottle of milk' (Campbell, [154]). In addition, there is the countervailing right of freedom of expression (Article 10), which relates to the public’s ‘right to know’. And the problem that the protection of privacy can come too late – i.e. after the event (e.g.Richard v BBC and another [2018]). Even better answers will go beyond the law to look at 'celebrity culture' and why all this suddenly seems to matter. There have been some great judicial comments in this respect, which would be worth searching out and including.

3. What harm(s) does the law find should be recognised as invasion of privacy? Is there anycommon element among the successful cases?

This essay question requires you to bring together the issues you've been considering in the previous questions. As with all essay questions it is important that you establish your argument or thesis at the beginning of your answer.

Obviously, one could define ‘harm’ as the invasion of privacy itself – and this, we suppose, is how the claimants in these cases view it, or they would not claim. But given that the law now requires any court considering these issues to balance the content of the right under Article 8 ECHR against that under Article 10, what we are talking about here is ‘reasonableness’. Our courts have determined, through numerous judgments and over many years (and particularly since the coming into force of the HRA) that, really, an invasion of one’s privacy can only be ‘harmful’ (in a legal sense) if it is unreasonable. Do you agree? This means that the concept(s) of harm has become narrower – it is only certain things (or types of thing) that judges seem to agree is harmful per se and it is these this question requires you to seek out, isolate and analyse.

Another angle is to consider the judicially created ‘new’ tort of misuse of personal information, and how/why this has developed to a point that it could be considered a tort (see Google Inc v Vidal- Hall and others [2015]), having first emerged as a concept (though not a ‘tort’ in and of itself) in Campbell v MGN 10 years previously. Evidently this protects a particular aspect of one’s privacy – does this mean that ‘personal information’ is now valued more highly than privacy itself? Is everyone’s personal information protected?

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