There has been little discussion of this issue in the English case law.
The relatively few ‘privacy’ cases which have gone to trial have been dealt with on conventional ‘breach of confidence’ grounds. 30 The present state of the authorities indicates that there are two possible routes to defining the elements of a tort of invasion of privacy. Some suggest that the new tort could be based on an expanded action for breach of confidence or it could become a new ‘self-standing’ tort.Firstly, in order to provide appropriate protection for generally recognised privacy interests, an expanded ‘breach of confidence based cause of action’31 may require some of the following elements: Firstly, the collection of information (or material which is deemed to be information), which is, or which is deemed to be, confidential; Secondly, the breach must be by a person who is or is deemed to be in a relationship of confidence with the claimant (such a relationship being deemed to exist if the person either knows or ought to know that the claimant can reasonably expect his privacy to be protected).
And finally the person used, or is deemed to have used, the information to the actual or deemed detriment of the claimant. It seems that the repeated recourse to ‘deeming’ is not in line with the modern law and it may be healthier for the elements of the tort to be defined without reference to legal fictions. The complications involved in defining the limits of an independent tort of invasion of privacy are notorious. One problem is the range of interests which are said to be covered by the concept of ‘privacy’.In addition to the ‘right to be left alone’,33 privacy rights have been said to cover matters as diverse as an individual’s dignity or moral integrity,34 the authorised circulation of portraits,35 the control of personal information36 the establishment and development of emotional relationships with others,37 and the freedom from media intrusion. 38 The wide range of areas in which the right has been called upon has led to scepticism as whether it is helpful to speak of a general ‘right to privacy’ at all.On the other hand, it is very important to distinguish the right to be free from unwarranted state interference40 and the private law tort of invasion of privacy. The latter clearly has a much narrower range.
(3)The private law tort of invasion of privacy in other jurisdictions This private law tort of invasion of privacy was first suggested at the end of the nineteenth century in the United States41, where it has been extensively analysed and developed in their case law.However, it has been restricted to the four areas summarised in the Restatement of the Law of Torts43 which states that: “(2) The right of privacy is evaded by: (a) the unreasonable intrusion upon the seclusion of another; (b) the appropriation of the other’s name or likeness; (c) unreasonable publicity given to the other’s private life; (d) publicity that unreasonably places the other in a false light before the public. “This includes a number of torts which serve slightly different purposes.
44 It has been suggested that a new common law tort of invasion of privacy should cover only the first and third of these, i. e. intrusion upon seclusion and unreasonable publicity.
The second and fourth are similar to property rights which may require protection of a different type.The Restatement described intrusion upon seclusion in the following terms: “One who intentionally intrudes, physically or otherwise, upon the solitude of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. ” Publicity given to private life is described as “one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicised is of a kind that: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public. ” In comparison, the common law in New Zealand has developed a tort of invasion of privacy.The courts wanted to synthesise the first and third parts of the definition in the Restatement. Consequently, it has been suggested that four conditions must be established to prove commission of the tort of breach of privacy: “(1) That the facts which were disclosed were private facts as distinct from public facts; (2) that the disclosure of the private facts was a public disclosure as distinct from a private disclosure; (3) that the facts which were disclosed would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) that any legitimate public interest in the disclosure would be insufficient to override the right to privacy in respect of them.” After careful scrutiny I have found that this formulation of the tort suffers from two shortcomings.
Firstly, it only deals with the “public” disclosure of “private” facts. It does not cover invasions of privacy by intrusion where no information is published. Secondly, the fourth element (that of “public interest”) is best regarded as a defence rather than an essential part of the tort.
(4) Proposals for a new tort In the United Kingdom there have been a number of proposals as to the ‘elements’ of a new tort from official bodies. On 16 March 1993, the National Heritage Committee of the House of Commons published a report on “Privacy and Media intrusions”.It recommended a Protection of Privacy Bill which would define a tort of “infringement of privacy” to cover conduct which included the following:46 obtaining and/or publishing harmful or embarrassing personal material or photographs; obtaining and/or publishing private information or photographs without the permission of the person concerned; Publishing inaccurate or misleading personal information; or violating the peace of another by intruding upon him or her, or persistently communicating with him or her.Secondly, the Calcutt committee on privacy and related matters47 suggested that “A right to privacy would include protection from: (a) physical intrusion; (b) publication of hurtful or embarrassing personal material (whether true or false); (c) publication of inaccurate or misleading personal material; and (d) publication of photographs or recordings of the individual taken without consent. “Finally, in July 1993, the Lord Chancellor issued a consultation paper proposing a new civil wrong in the following terms: “A natural person shall have a cause of action in tort, in respect of conduct which constitutes an infringement of his privacy, causing him substantial distress, provided that such distress would have also have been suffered by a person of ordinary sensibilities in the circumstances of the complainant.
“48 On the other hand, the former chairman of the Press Complaints commission, Lord Wakeham, consistently argued that a law protecting privacy would be counter-productive, protecting only the rich, while limiting public interest investigations (see Appendix 2). (5) Defining the new tortIt seems like the best way of defining the elements of the new tort would be to use the process highlighted in the American and New Zealand case law. This would be a method which develops breach of confidence but breaks free from its constraints and reflects generally held views as to the limits of the word “private”. One feasible way of doing this is by defining the tort of invasion of privacy on the basis of three elements. Therefore, in order to establish an invasion of privacy, there must be: (1) an intrusion; (2) into a person’s life; (3) which is highly offensive to a reasonable person of ordinary sensibilities. 49 The first element (‘intrusion’) may take two forms.
50 Firstly, it could include the observation, recording or surveillance by the defendant of the claimant.This would include matters such as photography, films and tape recording but would also include visual or aural observation. Secondly it could include the publication of information about the claimant, such as, factual information (whether true or false), photographs, films or recordings (whether actually or purportedly recording the claimant). In considering the first element (intrusion) the only question is whether or not there has been some ‘observation’ or ‘publication’. The question as to whether the intrusion is into the “private realm” of a person’s life is considered as part of the second element (i. e.
‘into a person’s private life’). When considering the existence of ‘intrusion’ the availability of material in the public domain should be irrelevant.This should be dealt with in relation to the third element (i. e. ‘highly offensive to a reasonable person of ordinary sensibilities’). The third element provides a useful ‘threshold’ which privacy claims must meet.
The High Court of Australia have recently described this as being “in many circumstances a useful practical test of what is private. “51 This test was referred to with approval by the Court of appeal in A v B & C52 and by Morland J in Campbell v MGN Ltd. 53 It has been suggested that this should be an objective test, for example, what would a reasonable person of ordinary sensibilities feel if they were placed in the same situation as the claimant?54 This third element would allow the nature of the intrusion to be taken into account: a reasonable person of ordinary sensibilities may well regard a ‘surreptitious’ intrusion by means of , for example, a photograph taken with a telephoto lens, to be more offensive than a photograph taken with an ordinary camera. 55 The third element would probably exclude from the tort intrusions that are regarded as of a ‘borderline’ nature, such as: a single “observation” of a person sitting in a private setting; the taking of a single non-published photograph; the publication of a trivial item of personal information; the publication of information which is already well known; and the publication of information about a relationship to friends and relatives.These “intrusions” would not be actionable because none of them would be “highly offensive to a reasonable person”.
The third element would also provide a ‘filter’ for claims and valuable protection for the media from harassment by unmerited claims by over-sensitive public figures. (6) Breach of confidence English law does provide some protection against abuse and unauthorised use of confidential information. It is possible for a breach of confidence to give rise to a claim for an invasion of privacy, for example, the taking of unauthorized photographs or films of a person or his home. This is based on a ‘confidential relationship’ as stated by the court in the Spycatcher case56.In this case it was held that a breach of an obligation not to take photographs may allow a claimant to bring action for breach of confidence. In Shelley Films v Rex Features,57 the defendant was prevented from using photographs taken on a film-set that had signs prohibiting photography. Furthermore, in Creation Records v News Group Newspapers Limited,58 a photographer from The Sun newspaper published photographs taken during a photo shoot for the cover of a new record by the rock group Oasis.
Even though the photographer was lawfully at the scene, the court still found that the security measures at the shot made it arguable it was intended to be confidential. Therefore an injunction was granted preventing the publication of the photographs.In contrast, in other areas it has been a difficult task for the courts to balance the total protection of privacy with the public interest. In the recent past, authors of books59 containing confidential government material have faced litigation by the government in order to prevent publication of that material and there was also the ‘possibility of prosecution under the Official Secrets Act 1989’.
60 In its original decision in the Spycatcher case,61 the House of Lords upheld an injunction62 against several newspapers who wanted to publish serializations of Spycatcher immediately after its publication in the United States. In its subsequent decision63 the House of Lords decided not to grant a permanent injunction.It seems very unlikely that the House of Lords preferred to safeguard free speech over maintaining confidentiality, ‘since this decision was mainly based on the fact that the confidentiality had already been broken and no such duty was owed by the third parties’. 64 Thus, the House of Lords adopted a more practical standpoint and found that a permanent injunction in the UK was depicted as being futile in view of the fact that the material had already been published.
Nevertheless the court stated that: “… the right to personal privacy is clearly one which the law should in this field seek to protect”.They also noted that an injunction would have been granted in relation to the publication if it had first been made in the UK: “…
there is no room for discrimination between secrets of greater or lesser importance, nor any room for close examination of the precise manner in which revelation of any particular matter may prejudice the national interest. “65 In the case of A-G v Punch Ltd (2001), the court looked at confidentiality in relation to David Shayler. 66 The Court of Appeal decided to grant the appeal of Punch and its editor, James Steen, against their convictions for contempt of court since, amongst other things, it could not be shown that the disclosure by them of information supplied by Shayler defeated, in whole or in part, the function of the court in granting the injunction.In contrast, during 2001 Dame Stella Rimington, who had been Director General for MI5 for four years, published her memoirs Open Secret, which contained confidential government material. Although the Home Office stated that the government ‘regretted’ Rimington’s decision to publish the book, it still said that for the most part it would not resist its publication. It seems that this was because the memoirs were edited to appease both MI5 and the Government itself. 67 The problem faced by the court of balancing the total protection of privacy with other public interests is expected to continue into the future following the incorporation of the conflicting rights to privacy in Article 8 and freedom of expression under Article.
This could have been the case in September 2000 where the celebrity couple, David and Victoria Beckham, sued Andrew Morton in relation to his ‘unauthorised biography’. This biography revealed intimate details about their personal and professional lives. Furthermore, Andrew Morton had gathered the information from a former bodyguard who had already signed a confidentiality clause on commencing employment with the Beckhams. However, this matter was settled out of court on the basis that 200 offending words were deleted from the manuscript. On the other hand, if the case did proceed to trial, then the court would have had to weigh Andrew Morton’s right to express himself under Article 10 with the Beckham’s right to privacy under.