Chapter 16 Pointers to 'pause for reflection' and 'counterpoint' boxes

Invasion of privacy

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Lord Hoffmann is clearly reticent about 'creating' (judicially or via Parliament) a 'tort' of invasion of privacy: this is clear from his opinion in Wainwright as well as other cases. While this may at one time have been problematic, in that there was no direct route to making a claim, even with substantial infringement of one's privacy, the suggestion is that this is no longer so, because sections 6 and 7 of the Human Rights Act 1998 would allow someone to sue in domestic law when one of their fundamental human rights from the European Convention has been violated. One problem here is that the HRA only allows 'public authorities' to be sued (s6(1)) (so this would have been OK for the Wainwrights), though this problem might be countered by the fact that in s6(3) the definition of what may be thought to be a public authority is extended to include 'a court or tribunal'. In practice, what this means is that courts must make their decisions compatible with human rights. Given that Article 8(1) of the European Convention stipulates that 'Everyone has the right to respect for his private and family life, his home and his correspondence', then Lord Hoffmann may be right. This, of course, must be weighed up against any compelling factors in Article 8(2) (which gives instances in which the right may be derogated from, such as in the interests of national security or public safety). Case law since the coming into force of the HRA shows us that Article 8 has had a great impact and is largely, in fact, responsible for the way and direction in which the law has developed – though we must be careful, as we need to remember that Article 10 (Freedom of Expression) is a 'competing' right and it, too, has influenced the outcome of many cases. On the balance to be struck between the two rights, see section 16.5.2 and much of the case law from the last few years.

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