Privacy Lecture

Does the Tort of Invasion of Privacy Exist?

Invasion of privacy is perhaps the oddest of all the torts for a singular reason: officially, it doesn’t exist. Statements to this effect can be seen in Wainwright v Home Office.

Case in Focus: Wainwright v Home Office [2004] 2 AC 406

The claimants, a son and his mother, went to visit his brother (her son) in prison. The imprisoned brother had been suspected of taking drugs whilst in jail, and so as a condition of the visit they were asked to consent to a strip search. This was legal, under Rule 86(1) of the Prison Rules 1964. They consented and were searched - a process that both the claimant and his mother found upsetting. The claimant, who had physical and mental disabilities, was held to have suffered PTSD (i.e. recognisable psychological harm.) 

The court held that the search of the son constituted battery - this was largely unchallenged by the defence. However, they rejected the idea that there had been an actionable invasion of privacy. This was concluded by Lord Hoffman (general discussion starts at 15):

“…I would reject the invitation to declare that […] there has been a previously unknown tort of invasion of privacy.”
- Lord Hoffman, at 35.

However, Lord Hoffman does note that there exists a bundle of rights which cover much of the ground that a tort of privacy might cover:

“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. […] 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.”
- Lord Hoffman, at 18.

Lord Hoffman makes an important point however - that there are a number of other torts and legal mechanisms which act to protect the privacy of individuals. So an individual can prevent people from coming into his house via trespass to property, can stop them from rooting through his diary via trespass to goods, and can prevent them from lifting his shirt up via trespass to person. The same snooper is prevented from accessing the individual’s bank account by the law regarding fraud, and from falsely affecting his reputation thanks to the tort of defamation. He can go about his business free from constant interference under harassment law. In essence - the private ‘sphere’ of an individual’s life is protected by a number of different and effective safeguards.

It should also be noted that the lack of a tort of invasion of privacy doesn’t indicate that there isn’t an argument for one. The Leveson inquiry of 2011-12 undertook a protracted examination of invasive media practices, spurred on by a number of high-profile incidents, noting that a lack of proper regulation provided the environment for such incidents to take place. Nevertheless, the courts regard Parliament to be the proper source of such regulation, and Parliament has not yet acted on recommendations to that effect. This also showcases the primary argument against the creation of such a tort - since invasions of privacy usually involve exposing information to the public, they become a matter of free expression (and by extension, press freedom). Since tort law remains most useful to those who can afford access to the courts, a tort of invading privacy would likely do little to help the man on the street, and a lot to help those involved in illegitimate or immoral (but well-paid) practices. Since such practices are invariably kept secret by their perpetrators, they become a matter of privacy. In short: anyone arguing for a tort of invading privacy should be careful what they wish for!

Thus, although there is no tort of invading privacy per se, there does exist a bundle of rights which can be thought of providing a rough de facto basis for protecting privacy. Most of these have already been covered in other sections (and some, like data protection, remain beyond the purview of this work) but two remain to be outlined (and remain key to fleshing out the bundle). These are the Article 8 Right to Respect for Private Life and equitable doctrine of breach of confidence.

Exam Consideration: Privacy is a peripheral issue of tort law due to its non-existence as a clear tort, and its piecemeal nature. Nonetheless, it is a popular subject for essay questions, because it remains a novel area of developing law (and the scope still exists for it to one day become a proper tort).

Human Rights Approaches to Privacy

The Human Rights Act 1998 should not be regarded as providing an individual with a right to bring a claim for invasion of privacy. However, it does provide the basis for the courts interpreting laws in a way which protects privacy.

Article 8 of the Human Rights Act provides everyone with a “right to respect for his private and family life, his home and his correspondence”. This is not absolute, Article 8(2) provides for the right’s restriction, where necessary.

This right can be contrasted with its counter-weight: The Article 10 Right to Freedom of Expression. Again, this right is not absolute, and notes the possibility of limitation under Article 10(2).

The balancing mechanism between these two can be found in s.12(4) of the Act, which notes that courts must give particular regard to the right of freedom of expression when exercising their power.

This provides an important basis for the UK’s protection of privacy, since it means that the other laws mentioned in the ‘bundle’ above will be interpreted in a manner which promotes Article 8 (as long as this doesn’t unduly infringe Article 10.) This effect can be seen in Douglas v Hello! Ltd (No. 1) (with No. 3 discussed under economic torts).

Case in Focus: Douglas v Hello! Ltd (No.1) [2001] 2 WLR

The defendants, Hello! magazine, took unauthorised photos of the wedding of Michael Douglas and Catherine Zeta-Jones. They had an exclusive deal with OK! magazine for the publishing of the wedding photos, and accordingly searched their guests for cameras, and had the people staffing the wedding sign agreements to not take photos. The sought an injunction against the publishing of the photos, and this was granted. The defendant then appealed.

It then fell to the court, under s.12 of the Human Rights Act 1998, to consider the competing rights of privacy under Article 8, against the right to freedom of expression under Article 10. The important question at hand was not if a wrong had been committed - it was largely clear that it had. Instead, the question was whether an injunction was an appropriate remedy, or whether the case could be resolved via the award of damages (thus avoiding the use of a remedy which would involve hampering press freedom, when an alternative award of damages would acknowledge the harm whilst preserving the press’s freedom of expression).

The court held that, on balance, damages would be a sufficient remedy. Sedley LJ mentions Article 8 providing a basis for the application of what can be termed, in the abstract, as privacy law:

"The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life.”
- Sedley LJ, at 128.

In effect, Sedley is acknowledging that the courts should not stop at preventing government intrusion, but instead that Article 8 extends further into the territory of actively promoting privacy rights.

The human rights basis for privacy is important, since it has informed the way the courts have interpreted the breach of confidence doctrine, as the next section will reveal.

Breach of Confidence

The doctrine of breach of confidence is in fact a matter of equity law, rather than tort. It would take too long to describe entirely where it came from, so it will suffice to say that the doctrine is rooted in law aimed at stopping industrial espionage, by promoting the ability of companies to act privately (i.e. in confidence). Over the course of the 20th Century the doctrine developed and widened to take into account situations outside of commercial contexts, with the latest development coming in the form of Campbell v Mirror Group Newspapers.

Case in Focus: Campbell v Mirror Group Newspapers [2004] UKHL 22

Claimant, model Naomi Campbell was photographed by the defendant whilst leaving a drug rehabilitation clinic. At the time, she was publically denying the fact that she was a recovering addict.

The claimant sought damages for the publication of the photos, as a matter of negating breach of confidence. The question was not whether the Mirror newspaper could print a story about the claimant’s drug rehabilitation - they could - but rather whether the pictures could be printed. The defendant argued that the pictures were merely ancillary to the article that they accompanied, and since the article was not in question legally, neither were the photos. The court rejected this argument, holding that this was an actionable breach of confidence. The court effectively redrafted the breach of confidence doctrine to facilitate the balance of Articles 8 and 10:

“The time has come to recognise that the values enshrined in articles 8 and 10 are now part of the cause of action for breach of confidence. […] the courts have been able to achieve this result by absorbing the rights protected by articles 8 and 10 into this cause of action.”
- Lord Nicholls, at 17.

The court implemented a two-part test. Firstly, it will be asked whether the information is of a nature that an individual would reasonably expect to be kept private:

“If the information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. So there is normally no need to go on and ask whether it would be highly offensive for it to be published.”
- Lord Hope, at 96.

Secondly, this must be balanced against the right to freedom of expression:

“They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy.”
- Lord Hope, 113.

What Constitutes Private Information?

There is a developed selection of cases which detail situations in which privacy can reasonably be expected (thus fulfilling the first part of the Campbell test). It should be noted that many of these cases are pre-Campbell, but nonetheless demonstrate when the court will regard information of be sufficiently private. It should go without saying that an individual seeking drug counselling is included in this category (i.e. Campbell).

Sexual relations will always be considered private, even if extra-marital (as salacious as they might be.) Thus, in A v B [2002] 2 All ER 545, a premiership footballer applied for an injunction to stop the publications of details of an extramarital affair he was having. The injunction was granted, and the defendant newspaper appealed. This was held to be sufficiently private, but nevertheless the appeal was allowed on the basis that the injunction would have sufficiently infringed Article 10.

The inside of an individual’s home will be considered private. Thus in Beckham v Mirror Group News Ltd [2001] All ER (D) 307, David and Victoria Beckham successfully obtained an injunction against the publication of photos detailing the inside of their new home. It should also be noted that a public interest argument failed in this case, demonstrating that not everything which interests the public can be defended on the basis of public interest.

An individual’s address will be considered private, but only if there is a demonstrable danger to the individual from the release of that information. Thus, in Mills v News Group Newspapers Ltd [2001] EMLR 957, Heather Mills was unable to obtain an injunction against the defendant newspaper publishing such information. The risk to her was only slight, it was already well known that she lived in the town, and photos of her home had previously published in national publications. This can be contrasted with Venebles & Thompson v News Group Newspapers Ltd [2001] EWHC 32. The notorious murderers of James Bulger were provided with new identities upon release from prison. The defendant newspaper sought to make these identities known, and thus the claimants sought an injunction. This was granted - the release of the information would have presented a significant danger to the claimants.

Information that an individual has had plastic surgery will be considered private. Thus, in Archer v Williams [2003] EWHC 1670, the claimant sought damages for the publication of information regarding a facelift, from a former assistant who had sold her story to the press. The claim was successful.

It should be noted that the law will treat photographs of an individual as a particularly aggressive invasion of privacy, since unlike mere information about an individual’s private life, the taking of a photograph is, by definition, accompanied by the following of an individual, often without their knowledge. Thus, in Campbell, Baroness Hale noted (at 30) that the photographs of the claimant would both induce her into thinking that she was being followed and/or her location betrayed by a confidant, as well as deterring her from returning to the place the photos had been taken (and, after all, deterring a drug addict from seeking counselling is morally dubious.)

Whilst the general scope of privacy is open to the courts to decide, one test can be found in the Australian case of Australian Broadcasting Corporation v Lenah Game Meats [2001] 208 CLF 199. It should be noted that this test was rejected by the judiciary in Campbell, although it remains useful as a general guide. The claimant sought an injunction against the broadcast of a film containing undercover footage of its possum meat slaughterhouse. The claim failed on the basis that the broadcast was of public interest.

In describing the benchmark for privacy, Gleeson CJ provided the following formulation:

“Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”
- Gleeson CJ, at 42

Therefore, introspection can be a useful tool when dealing with privacy: it can be easy to pick up a newspaper and read about another’s business, but upon consideration we would find it highly alarming if such information was to appear about ourselves in the press.

Do Individuals in Public Have Any Expectation of Privacy?

Information which is already in the public domain will generally not be regarded as private. Indeed, s.12(4)(a)(i) of the Human Rights Act 1998 mentions that this factor should be considered by the courts when dealing with questions of Article 8 rights. By extension, that which happens in public will generally be regarded as a non-private. This was noted in A v B (the case of the amorous footballer, mentioned above). Since some of the footballer’s indiscretions had taken place in public, the court erred away from considering them as confidential. This is a general principle, rather than a rule, however - indeed, Campbell was photographed in public (albeit when leaving a very private place).

Appearing in public does not mean that a claimant loses all right to privacy. This can be seen in Peck v UK.

Case in Focus: Peck v UK [2003] EHRR 287 (App. No. 00044647/98)

The applicant (an average, non-famous citizen) was photographed by CCTV wondering the streets with a knife, shortly after he had attempted to commit suicide in 1995. This CCTV was sent (perhaps insensitively, but unmaliciously) to various local newspapers and a national TV programme, all of which published imagery of the applicant. After a failed attempt to have the council’s actions judicial reviewed, he applied to the ECHR on the basis that his Article 8 rights had been breached. The court drew a distinction between foreseeable exposure and the exposure that took place, and the application was successful.

Thus, whilst there was certainly nothing wrong with the council using the CCTV for internal purposes, it had violated the applicant’s rights when it exposed the footage to news organisations. It should be noted, however, that the events of the case took place in 1995. It is extremely doubtful that a similar decision would be made nowadays, since it is now largely impossible to do anything of any interest in public without being captured on the iPhone of a passer-by! Thus it cannot realistically be said that an individual can expect relative privacy whilst out in public.

In general, celebrities and others who seek fame will be afforded less protection by the law than the average individual. This is because one who seeks fame will accordingly, be less able to expect privacy. Similarly, someone who undertakes a notorious act (murder or robbery, for example) will be regarded as having accepted that their lives will be of more interest to the public. This point was also espoused in A v B (footballer, again) - whilst a randomly chosen individual’s sexual indiscretions cannot reasonably be regarded as being of public interest, the same cannot be said for a Premiership footballer. Again, Campbell demonstrates the limit of this principle.

Freedom of Expression

The second part of the Campbell test involves asking whether granting an injunction (the objective of most privacy claims) would unduly infringe on the right to freedom of expression. If the press is involved in the privacy breach (as they invariably often are), the courts will also consider press freedom, under s.12(4) of the Human Rights Act.

This decision will be entirely dependent on the nature of the privacy breach. Thus a tiny privacy breach, such as a picture of a celebrity at an awards ceremony, will only need the slightest justification before it will be held as reasonable (realistically, no substantive justification at all). Conversely, a naked photo of a celebrity taken with a pinhole camera secretly hidden in their bedroom will require a proportionally massive justification (indeed, this would be such a great breach of privacy that it would more than likely be held as unjustifiable).

The essence of the defence’s argument will often take the form of a public interest defence. As noted above, this does not mean that just because the public are interested in something that it will be freely publishable (indeed, if the right celebrity’s bedroom were bugged, it would be probably be of interest to the public). Conversely, it is also doubtful that much of the content of various publications could really be considered as being in the public interest - the world would function perfectly well without telescopic lens photos of female celebrities on their private yachts. The justification for such behaviour is perhaps best understood via the judgement in A v B:

“…it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. […] The court must not ignore the fact that if newspapers do not publish interest which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
- Lord Woolf CJ, at 11.

Thus, since a free press is a matter of public interest, and part of that freedom involves publishing that which might ordinarily be considered distasteful or spurious, even the more lurid practices of journalists are defensible as a matter of public interest.

Exam Consideration: Since privacy law relies heavily on human rights law, it often involves abstract qualitative arguments, rather than the application of strict principle. It will thus often be important that you take notice of the facts of problem questions and ask what each party’s reasonable expectations would be in the situation.

Soft Regulation

The tension which often exists between the press and the subjects of their investigations have led to the creation of the Press Complaints Commission’s (PCC) Code of Practice. This lays down the standard of behaviour expected of contents editors, including standards regarding respect of privacy (see Clause 3). If an individual believes that there has been an invasion of privacy, they can make a complaint to the PCC, who in turn are able to order editors to print retractions and apologies. It should be noted, however, that the PCC does not have the power to grant other remedies, like injunctions or damages, and so it remains relatively toothless.

Other Notes on Privacy

As can be seen from the cases above, there are times at which the court will hold that there has been a breach of privacy, but that an injunction would still be an overzealous remedy (since it is essentially a wrecking ball as far as press freedom goes). In such situations, the court can opt for the compromise of allowing the publication to go ahead, whilst still awarding damages to the claimant.

It is notable that the presence of litigation can actually make a given invasion of privacy more notorious - in essence, the claimant obtains the polar opposite of what they desired (even if they receive damages for the original breach of privacy). Colloquially, this is known as the ‘Streisand effect’ - named for a now notorious US case in which singer Barbara Streisand attempted to obtain an injunction against the publishing of pictures of her home on the Californian coast (on a website dedicated entirely to surveying coastal erosion, no less). For proof of the Streisand effect, you need look no further than any article on the matter - it will invariably contain the photo in question. In short: a wise claimant would be advised to be wary of jumping both feet first into litigation for breach of privacy.

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