10.2 Privacy Lecture

Tort of Invasion of Privacy

The tort of invasion of privacy doesn’t technically exist, Wainwright v Home Office [2004]. However, there does exist a bundle of rights which can be thought of providing a basis for protecting privacy. Two of these include the Article 8 Right to Respect for Private Life and the equitable doctrine of breach of confidence.

Human Rights Approaches

Article 8 of the Human Rights Act 1998 provides everyone with a ‘right to respect for his private and family life, his home and his correspondence.’ Article 8(2) provides for the right’s restriction, where necessary.

The counterweight is Article 10 and the Right to Freedom of Expression, which can also be limited under Article 10(2). The balancing mechanism for these two rights can be found in section 12(4) of the Act, noting that freedom of expression must be given particular regard to.

This provides a basis for protecting privacy since other laws can be interpreted in a manner promoting Article 8 (but without unduly infringing Article 10), Douglas v Hello! Ltd (No 1).

Breach of Confidence

The doctrine of breach of confidence is a manner of equity law, rather than tort, which promotes the ability of companies to act privately. The court in Campbell v Mirror Group Newspapers [2004] restated the doctrine to facilitate the balance of Articles 8 and 10. The court implemented a 2-part test representing an acknowledgment of both articles respectively:

  1. If information is clearly private, a reasonable expectation of privacy is assumed and it is held to be offensive for it to be published.
  1. Where the publication of private information pursues a legitimate aim proportionate to the harm that may be done is then to be considered.

Private Information

A number of cases detail the situations in which privacy may be expected.

  • Sexual relations will always be considered private, A v B [2002].
  • Information that an individual has had plastic surgery will be considered private, Archer v Williams [2003].
  • Photographs will be treated as a particularly aggressive invasion of an individual’s privacy, since it necessarily involves following an individual, often without their knowledge, Campbell.

Whilst the general scope of privacy is open for the courts to decide, one test in Australian Broadcasting Corporation v Lenah Game Meats [2001] provides some useful guidance. Introspection is a useful tool; upon consideration, would one find it alarming to read such information about oneself in the press?

Expectation of Privacy

Information which is already in the public domain will generally not be regarded as private, Section 12(4)(a)(i) Human Rights Act 1998. By extension, that which happens in public will generally be regarded as non-private, A v B.

Appearing as a public figure does not mean that a claimant loses all rights to privacy, Peck v UK [2003]. However, in general those who seek fame will be afforded less protection than the average individual.

Freedom of Expression

If the press is involved in the privacy breach, the courts will also consider press freedom under section 12(4) of the Human Rights Act. The decision will be entirely dependent on the nature of the privacy breach.

The essence of the defence’s argument will often take the form of a public interest defence. In A v B this was explained as being a matter of enabling a free press.

Soft Regulation

The Press Complaints Commission’s Code of Practice acts as soft regulation of the standard of behaviour expected of contents editors.

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