To determine the limits of a tort of invasion of privacy it is essential to define the limits of the “private life” which the law aims to protect. There has never been an attempt to create a thorough formal definition.
In this sphere, as in many others, the common law proceeds with a “molecular” motion. Thus, new categories are being added by analogy and established ones on a case to case basis. However, it is still important to assist advisers and courts in assessing new and borderline cases.Useful assistance for creating a definition can be obtained through a number of sources. Firstly, there is Article 8 of the European Convention on Human Rights which states that: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence”.
By taking into consideration the meanings of these words the courts are, evidently, dealing with the ‘human rights to privacy’ rather than private law rights. Nonetheless, the convention case law does provide some guidance as to the meaning of ‘home’ and ‘private life’.A few of the areas it covers are: the business premises of a professional person;68 sexual activity,69 even where a number of people are present and the activity is video taped;70 and a photograph taken during an interview at an army centre71 (but not a photograph taken during a political demonstration72). Furthermore, there are ‘privacy codes’ which apply to the press and to broadcasters. 73 Clause 3 of the PCC Code states that: “(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence.A publication will be expected to justify intrusions into any individual’s private without consent. (ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note – private places are public or private property where there is reasonable expectation of privacy.
” The privacy codes of the ITC74 and BSC75 make specific provisions in relation to matters such as: filming in public and semi-public places; filming police operations; filming in circumstances of distress; revisiting past events; secret filming and the use of children in programmes.All these are areas which could potentially be the subject of protection by a tort of invasion of privacy. Even in the absence of ‘horizontal’ application, it is likely that the Human Rights Act will have considerable impact on media law. 76 It is clear that there are many situations in which the media infringes the private life and home of individuals. Although the press is not governed by direct state regulation, it is strongly arguable that the Press Complaints Commission is a functional public authority77 and, as a result, it must act in conformity with Article 8.In comparison, The Broadcasting Standards Commission is a body established by statute and is also a functional public authority.
Consequently, if the Press Complaints Commission or the Broadcasting Standards Commission failed to establish and effectively police a regulatory regime which provides proper protection for Article 8 rights then their actions may be unlawful under section 6 of the Human Rights Act. Therefore, the ‘victim’ may be entitled to damages or injunctive relief. On the other hand, the effect of ‘privacy rights’ in the media law context gives rise to complex issues of balancing of the rights under the convention.Similar to the rest of the Convention, Article 8 is interested in providing guarantees against the activities of the government or other public bodies. But the European Court has developed an idea that in some respects the Convention puts a ‘positive obligation’ on the member states to make provision in their laws for other rights as against the government or as against other private bodies or individuals. 79 This notion of ‘positive obligation’ has been primarily used in the context of Article 8. The issue concerning protection of privacy has been raised on several occasions on applications from the U. K.
However, none have yet gone beyond the admissibility stage and on each occasion the Commission found that other remedies could satisfy any requirement under the convention. 80 Relatively recently the Commission held that the developing law of breach of confidence could well satisfy whatever positive obligation existed in this area. 81 While the Human Rights Bill was being debated, the media were vocal in their concern that the UK courts would create a fully developed right of privacy in our law. The result was the inclusion of s. 12 in the Human Rights Act.This gave some protection against interim injunctions and highlighted the importance of the extent to which material the claimant sought to suppress was already in the public domain or was of public interest.
On the other hand, it also obliged the court to have regard to “any relevant privacy code”. The courts will read this as a further incentive to develop a UK law of privacy. (2) Human Rights, Privacy and Recent Cases A number of commentators have suggested that the HRA will give a decisive impetus to the pre-existing but slow development of a new tort of privacy at common law.Just over five years ago Lord Irvine LC said in the course of debates on the Human Rights Bill that: “the judges are pen-poised regardless of incorporation of the convention to develop a right of privacy to be protected by common law …
it will be a better law if the judges develop it after incorporation because they will have regard to article 8 and 10, giving Article 10 its due value …
I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like to fashion a common law right to privacy”.The response of the courts to these suggestions has been ambiguous. The case law after 2 October 2000 does not speak with one voice. In H (A Healthcare Worker) v Associated Newspapers Limited83 Lord Phillips referred to: “the development of the law of privacy, under the stimulus of the Human Rights Act, under which the possibility of a new civil law right is being recognised as one that can be legitimately protected by the grant of an injunction. ” In contrast, in Wainwright v Home office,84 the court of Appeal held that there was no common law tort of invasion of privacy.Lord Woolf CJ commented that the HRA “certainly cannot be relied on to change the substantive law by introducing a retrospective right to privacy which does not exist at common law. “85 The judges were divided as to whether or not a tort of invasion of privacy was desirable.
Mummery LJ foresaw “serious technical difficulties and conceptual problems in judicial development of a ‘blockbuster’ tort vaguely embracing such a potentially wide range of situations.” He suggested that because “privacy” covers an extremely wide range of cases, which are affected by an extremely wide range of policy considerations, the social balance should be struck by parliament and not by the judges. 87 On the other hand, Buxton LJ said that recognition of a right to privacy is an attractive prospect but “authority in this court precludes our taking that course.
” It is already clear that the UK parliament has refused to legislate to protect privacy from media intrusion. 88 The European Convention on Human Rights and the Human Rights Act may spur the judiciary to act instead.The law of breach of confidence has shown capacity for growth and the government is adamant that it could go even further, as illustrated in Spencer v UK. 89 This argument was not lost in the Court of appeal in Douglas v Hello90 which considered that Kaye v Robertson may well be decided differently today. However, In a thorough and clear judgment handed down in the High Court, on 11 April 2003,91 Mr Justice Lindsay found for Michael Douglas and Catherine Zeta-Jones in their action for breach of confidence (with an award of nominal damages under the Data Protection Act), but against them in their privacy claim.The judge found that despite the massive publicity which accompanied the wedding, it was nonetheless “private”.
He also found that the contract with OK Magazine was “a means of reducing the risk of intrusion by unauthorised members of the media and hence of preserving the privacy of [the wedding]. ” The judge made some important observations about the law of privacy in dismissing the claimants’ claim in that respect. The main reason he gave for dismissing that part of the claimants’ action was that he doubted that UK law had a distinct right of privacy.
He observed that the case of Peck92 showed that UK law did not adequately protect the European Convention right in this respect. He said that Parliament should step in to correct this deficiency, but that if Parliament failed to grasp the nettle the court would ultimately have to do so. That would not happen until the court was faced (as it was not here) with a claim where breach of confidence did not provide an adequate remedy.
93It was arguable that other jurisdictions, in general terms no less free or democratic than England and Wales, had apparently workable laws of privacy which neither oppressed nor stifled, the judge (Mr Justice Lindsay) said. It was also apparent from the remarks of Lord Justice Sedley in one of the earlier hearings in the Court of Appeal that a strong case could be made, by way of the Convention and the Human Rights Act coupled with decisions of the European Court of Human Rights, that “in some respects we do now have a law of privacy”.94 However, Mr Justice Lindsay declined to accept the invitation to hold that there was an existing law of privacy under which Mr Douglas and Miss Zeta Jones were entitled to relief. Another example, which illustrates the capacity for growth of the law of breach of confidence under the stimulus of the Human Rights Act was the injunction granted by the High Court to protect the new identities of the killers of Jamie Bulger after their release from custody.
Their new identities and appearances were confidential and the judge decided that the need to protect them was paramount in view 9of the risk of revenge attacks. The high risk of such attacks allowed the applicants to invoke article 2 of the European Convention on Human Rights, which is ‘the right to life’. The judge granted the injunction against the world so that it would apply directly against all newspapers96 rather than rely on the indirect effect of the law of contempt.