Needing Privacy: preserving the status-quo or reforming the law?
Who said Privacy is dead?: assessing the need for a statutory tort provision.
Abstract: Historically, English common law has provided scant comfort and protection to claimants who have suffered an invasion of their private lives; they instead were compelled to seek aid from Strasbourg. The English courts were reluctant to recognise privacy as being worthy of a place in Tort, not wishing to diminish the importance of free speech and citing practical difficulties. It was believed the incorporation of the European Convention on Human Rights into domestic law as the Human Rights Act 1998 (HRA 1998) would act as a catalyst for reform, yet the courts are seemingly still hesitant to develop privacy law. Despite the acceptance of the HRA 1998 as a constitutional statute, privacy has not been accepted as a constitutional right. As the privacy sphere increasingly shrinks in the modern world, courts are frequently forced to balance the right to privacy with the right to freedom of expression. This paper examines whether the time has indeed come for Parliament to legislate and create a new statutory provision in tort, or whether the current law should remain untouched.
Introduction: Whose right is it anyway?
It may come as a surprise that advocating the right to privacy is such a contentious issue. Traditionally, the English courts have been reluctant to recognise the merits of a Tort of privacy, a stance considered by some as ‘one of the most serious lacunae’[1] in English law. It has been condemned by the Court of Appeal[2] and although the notion of respecting individual privacy is now recognised at the common law, it is quite puzzling that in stark contrast to ‘virtually every other Western democracy’[3] an invasion of privacy garners no legal remedy in English law. This ‘absence of law’ has been highlighted as being a ‘ripe’ legal battleground;[4] an accurate description when one considers the impact the HRA 1998 has had in the domestic courts. For not only must the courts deal with a vague and tangled[5] collection of Torts that seemingly protect loose areas of privacy, including the breach of confidence and misuse of information, there is a continuous battle between Article 8 and Article 10. This battle masks a debate of political and constitutional issues, including the role of the Press, the rights of private individuals and the interpretative responsibilities of the courts as protectors of human rights. This article thus examines the current protections afforded and practiced by the domestic courts and scrutinises the standing of the HRA 1998. It shall also compare privacy laws in other jurisdictions, namely the USA and Australia. It shall seek to prove that the real obstacle to rectifying the law of privacy is not necessarily whether reform is needed, but instead who will throw down the gauntlet and take up the challenge of doing so. It is respectfully suggested that in contemplation of an answer to this query, joint effort from both the legislature and judiciary is both necessary and desired.
The Legal Concept
In order to determine how best to protect this sphere, the question must first be asked - what exactly is privacy?
Cooke states that privacy is ‘notoriously difficult’ to define.[6] Its concept is elusive and has unfortunately become ‘a loose political term.’[7] Warren and Brandeis described it as the right to be left alone[8] and recently it has been defined to include the right to be forgotten[9]. It is therefore evident that privacy has a broad meaning, apparently validating Freund’s criticism of it becoming ‘too greedy a legal concept…giving excessive protection.’[10] For the purposes of this article, the focus will be on the invasion of private information, which may be defined as information pertaining to an intimate and personal sphere of an individual’s life[11].
With regards to the English legal viewpoint, it is argued that privacy has been recognised as being an underpinning value for various strands of tort law. In fact, it has been claimed that it is ‘seriously-misleading’ to firmly declare there is no common law tort of invasion of privacy especially when one considers the substantial development of the old law of breach of confidence, and the recent develops of a new, specific tort of misuse of private information[12]. These shall be examined later on as torts offering indirect protection of privacy. Yet paradoxically, the direct protection of privacy itself has not been ‘elevated…to the status of a legal principle’[13] from which judges may derive conditions of tortious liability.
Being denied the status of a tort is arguably disastrous. Tort plays an important administrative and constitutional law role within English law. Samuel claims tort aims to not only protect expectation interest and promote deterrence, it also aims to protect rights.[14] This means an infringement rather than behaviour as such gives rise to an action or claim. As a result, the law is clear and concise, relying on judge-devised tests to determine whether an infringement occurred, to what extent it has impacted upon the victim, etc. In providing for a statutory tort of privacy, the law would be clarified and perhaps less politically motivated. For with an emphasis on infringement, the focus is neutral, coolly focusing on how the law was disregarded and how best to remedy the situation.
Wright, believing the impact of the HRA 1998 has been to encourage the courts to recognise a de facto right to privacy, argues that prior to the implementation of the 1998 Act to restrict the invasion of private information, one was forced to undergo ‘legal gymnastics’ due to the lack of tort status.[15] However, although the HRA 1998 is important in respect of rights protection and itself gives rise to statutory action against a public authority that infringes a human right, arguably it is not the solution envisaged by Wright. A human rights claim would appear ‘not to be regarded as an action in tort’.[16] The House of Lords in particular has taken a firm stance here, ‘the 1998 Act is not a tort statute. Its objects are different and broader.’[17] It is to the HRA 1998 and its constitutional status we shall now turn.
The Constitutional Context
The HRA 1998 signified a major constitutional change in that it ‘brought rights home’[18] by enabling citizens of the UK to seek legal remedies at a domestic level and have their rights enforced in the domestic courts, after years of claimants forced to seek legal redress in Strasbourg. Described as one of the most fundamental constitutional enactments in the UK, it has been questioned for its potential to create a ‘human rights culture’.[19]
Diceyan notions[20] of equality of the law, the insistence of clear and accessible law and the sovereignty of Parliament ‘still retain a high degree of influence’ meaning human rights standards with regards to both the common law and the HRA 1998 will have their strongest impact at judicial approaches to statutory interpretation. [21] Leyland and Anthony remark upon the argument that frequent judicial recourse the HRA 1998 can result in arguments that courts are ‘acquiring too much power’ on political matters; they dismiss this line of thought as ‘not always valid’ as the courts believe the protection of human rights as being fundamental to the concept of the rule of law. [22] It is submitted that such recourse is not just beneficial in but is essential to reforming the current laws of privacy in the UK. This can be highlighted by two points.
Firstly, the very provisions of the Act could help play an instrumental role in reform. Arguably the heartbeat of the Act, s3 requires that legislation be read and given effect by the courts in such a way that is Convention compliant. Combined with s6 (1) whereby it is unlawful for a public authority to act in a way which in incompatible with the Convention[23] and evidentially this establishes a powerful interpretative obligation and indeed a creative tool that can effect practical change, especially when considering that it is accepted that the common law is able to ‘fill the gaps’ in the absence of concrete legislative protection.[24] It is submitted this suggests the courts, whilst respecting the separation of powers doctrine and the principle of parliamentary sovereignty, can develop the law so it adapts to the changes in society[25]. Although obviously far-reaching,[26] this has the potential to provide better protection of vital rights and as such it is argued this is what is required for the advocacy of recognition of a tort of privacy.
Secondly, s2 requires courts and tribunals to ‘take into account’ ECHR jurisprudence, whenever made or given so far as it is relevant to court proceedings. Although not formally binding and domestic courts need do no more than ‘keep pace’ with evolving Strasbourg decisions, they should however strive to follow the ‘clear and constant’ jurisprudence of the ECHR[27]. Again, it is argued this can only aid in the reform of the law of privacy. The ECHR has adopted a clear approach to both Article 8 individually and the need to balance it with Article 10. It is open for member states to use their margin of appreciation and legislate further on Convention rights, [28] it is reasoned in that it understands how terrorism concerns can influence a member state’s discretion, [29] most importantly it accepts that certain incidents which take place in public can still fall within someone’s private life and for which they can have a reasonable expectation of privacy[30].
It is interesting to note that following the decision in Von Hannover[31], in that near-continuous observation and intrusion by the German press mounted to a ‘campaign’ on Princess Caroline’s privacy, the Court of Appeal followed Strasbourg jurisprudence as opposed to a conflicting House of Lord’s judgement[32] when deciding Murray[33]. The recognition of a reasonable expectation of privacy in a public place overruled the judgement that individuals ‘must simply accept’ they may be observed and photographed without consent in public[34]. The Court of Appeal was not bound by the ECHR decision (Campbell was more binding a decision), but they chose to adapt the privacy law by adhering to a recent Strasbourg ruling which resulted in greater protection. This provides a platform for further judicial development in reforming the law of privacy.
Arguably Murray and Peck involved vulnerable individuals (a young child and a suicidal man) as so perhaps greater protection was afforded to them. However, there is no doubt that they mark an improvement in protecting privacy, respecting dignity and recognising the existence of a private sphere even whilst in public.
To conclude, the recognition of the HRA 1998 as a constitutional statute and the articles requiring ‘special respect’[35] should bestow the label of a constitutional right to Article 8. The elevation of privacy to a domestic tort is surely not an additional step too far.
The Tangled Web – Examining the current UK law.
A general, overarching and ’all-embracing cause of action’[36] for invasion of privacy has been refused recognition by the law. The ‘patchy’ common law had developed ‘no coherent rules’ to protect privacy,[37] whilst at the same time conversely protected duties of confidence including the privacy of a prisoner’s correspondence with his legal advisers[38]. It is asserted that the breach of confidence and the misuse of information already provide adequate protection for privacy and a statutory tort would merely complicate the law[39]. This article however claims it would be unwise to pretend all that has happened is the evolution of breach of confidence; that privacy itself is not developing. These torts shall now be examined.
Breach of confidence is considered as the ‘most promising of all existing English torts’[40] in the context of privacy. It was originally confined to cases involving the presence of a past or existing relationship between parties, illustrated when a divorced husband was restrained from publishing articles disclosing details regarding martial secrets.[41] However, the tort was updated to recognise a duty of confidence may arise in equity independently of such relationships. Lord Goff held ‘in express terms’ that it could be invoked provided confidential information comes to the knowledge of one, who knowing it is confidential and cannot disclose it, does so. [42] In addition, the interest in confidentiality must outweigh the public interest in disclosure. If the information is already in the public domain, the tort cannot be applied.[43] Not only is this a shallow attempt at protection, it also triggers the conflict with the role of the Press. In the Mosley case, the News of the World published a video of the events on its website and was viewed by some 1.4 million people before he was notified. Evidently, it was too late to claw back his interest in privacy, but surely the onus was on the media to notify him prior to posting the video. It did not, because it wished to inform the public on the grounds of public interest, and was determined to counter-argue on the grounds of free speech.
Douglas determined that to disclose such information would be unconscionable, yet Brooke LJs restated that as there has to be an obligation of confidence which arises only on private occasions, the Court of Appeal reversed the granting of an injunction[44]. It is argued therefore that such a decision is to the detriment of effective privacy protection and demonstrates the need for a statutory privacy provision. It is this inconsistent development which proves its unreliability; consider the dictum of Laws J:
…law would protect what would now reasonably be called a right of privacy, although the name accorded to the cause of action would be that of breach of confidence.[45]
Again, it is reiterated that in the absence of legislation, courts should now develop the law so as to give relief and instigate reform; it is clear that relying on an inconsistently applied breach of confidence is ill-advised.
Misuse of private information combines elements the breach of confidence with Article 8 and it was this ‘extensive development’ in the common law that impressed the Strasbourg court as an effective domestic legal remedy.[46] It requires a careful balancing act between Article 8 and Article 10 and the examination of whether disclosed facts had a reasonable expectation of privacy[47]. This is not so straightforward in practical application. In a society where it is considered the norm to communicate via social networking sites, are we entitled to a reasonable expectation of privacy of blogging? According to a recent controversial decision[48], apparently not.
In a conventional scenario involving reasonable expectation of privacy, a significant case is that of A v B[49], involving a footballer player who had engaged in adulterous relationships and tried to seek an interim injunction to prevent the women from having their stories published.
The Court of Appeal overruled the judge at first instance, arguing that there was a substantial difference between a martial relationship where there is a reasonable expectation of privacy, and his own relationships where there was not. The public interest criterion was also satisfied, and the onus of establishing an interest entitled to privacy was placed on the claimant[50]. This case was followed by the seminal Campbell[51]. Ms Campbell sought damages from the respondent paper which had published articles and photographs, including one of her attending a Narcotics Anonymous meeting, to contradict her previous assertions she was not a drug addict. The case reached the House of Lords where her appeal was allowed. The majority found an infringement of her Article 8 rights, recognising the ‘potential for disclosure to cause harm was an important factor’ [52] (albeit Lords Nicholls and Hoffmann, dissenting, argued in favour of Article 10 and a degree of journalistic appreciation). In recognising an ‘essence of a new tort’ as the misuse of private information[53] the majority held the requirement for an initially confidential relationship was no longer necessary. The claimant must have a reasonable expectation of privacy relating to the information, and the courts needs must balance the interest in keeping the information quiet against revealing it. Article 8 and Article 10 would require balancing also, but both were of equal value – it was the potential of harm to the claimant that was ultimately important. That it was recognised as a tort indicates the sincerity of the court in recognising the need to provide protection and damages[54].
However, inconsistency and confusion tarnishes the otherwise promising potential of this action. The House of Lords have argued the existence of the HRA 1998 defeats the argument for the creation of a tort of invasion of privacy[55]. Cooke comments this case demonstrates the refusal of the courts to create a tort of privacy and recognises that this is to be left to the will of Parliament instead[56]. Wainwright was actually a case involving the recognition (or rather, the failure to protect) of dignity; as the claimant and her son were humiliated and distressed during a strip search. Lord Scott commented that such humiliation could well be commonplace in daily life[57] but surely this blurs the distinction in the difference of context between the private and the public? It can be one thing to experience distress and embarrassment whilst shopping for example, but should public officials be freely enabled to denigrate dignity?
It is therefore submitted that the current law is in need of reform to rectify a patchy and vague collection of laws that fail to adequately protect privacy. It is hoped the time has arrived for the courts to initiate reform. Understanding the separation of powers doctrine it is acknowledged this could result in parliamentary consternation given the importance of parliamentary sovereignty. However, it is hoped both the judiciary and legislature can ensure reform together, for ‘oil and vinegar may not mix in solution but they combine to make an acceptable salad dressing’.[58] Yet, the adamant refusal of the courts to recognise a tort of privacy due to an ‘imprecise label’ with no ‘supposed wrong’ may make this an arduous process.[59]
An American Comparative
American law is similar in that there is also a continuous balancing act between privacy and the free speech, being between the Fourth and First Amendments respectively. Yet any additional resemblance is ‘superficial’[60] for whatever preference the English law has for reputation, the US courts seemingly have for free speech.
The ‘invasion of privacy’ is protected by four distinct torts, the closest to our understanding being that of ‘public disclosure of private facts.’ However, US privacy torts which are ‘notoriously difficult to satisfy’,[61] even then maintain a protected zone of privacy-intrusive free speech. The majority will of the American people is considered the proper standard of what a privacy expectation should be; ‘highly offensive’ is a high standard. As such, the US courts have ‘erected freedom of speech to an overriding constitutional imperative’.[62] They refused to uphold a privacy claim brought by a chronically private former child protégé, who was exposed in an article in The New Yorker which was merciless in invading his personal life[63]. They had no sympathy for the privacy claim of a student who posted a critical comment about her former hometown online and discovered her former headmaster had published them with her full name[64]. The US approach to privacy is concise and categorised, but free speech tends to prevail in conflicting circumstances and ‘rarely’ provides an effective legal remedy[65].
Kalven[66] bemoans the existence of a hybrid tort, which resulted in paradoxical legalese confusion - for should a name be used without consent, it is offensive because ‘the attribution is false’ yet where the answer ‘to its being nondefamatory is that it is a use of a name without consent’[67]. Kalven also asserts that defamation in the US has been colonised by privacy, whilst libel and slander are to be swallowed up.
It is respectfully observed this is faintly hysterical and devoid of common sense, for privacy cannot take over that which it acts as a foundational basis for. The torts are elaborately constructed, a high standard of ‘offensiveness’ ensures protection is merited and through being recognised as torts, they provide tangible legal redress for victims. Although the HRA 1998 enables courts to grant relief[68], if fault lies with legislation, under s4(2) English courts can only issue a declaration of incompatibility which cannot match compensation or injunctions as a remedy.
The Approach Down Under
The Australian government in an attempt to demonstrate its sincerity in tackling the possible problem of privacy recently published a consultation paper to enquire whether there was an actual need for a new statutory tort. Richardson believes that in the Commonwealth cousin of the UK ‘public pressure for more effective legal privacy protection might be increasing’[69] especially when considered in light of the Murdoch press’ phone hacking scandal. She however favours incremental development of the common law as opposed to a statutory cause of action and intervention by the government when it comes to privacy protection. Richardson claims that existing law ‘already provides a significant degree of protection’ for the privacy sphere, and that the action of breach of confidence ‘especially’ functions as a privacy doctrine. [70] This paper suggests although this is the current law of the UK, it is inadequate as a fully-functioning privacy doctrine, and needs to be subject to reform.
In comparing Australian law to the UK, Keane is highly critical of the UK approach, arguing the ‘clearest problem about the purported conflict between a right to privacy and a right to free speech can be seen in the UK’. Courts have ‘extrapolated’ a right to privacy from the HRA 1998, thus ‘inflicting significant collateral damage on free speech’. Keane argues that this situation is due to the ‘failure’ of the British Government to debate and legislate for a narrowly framed and defined right to privacy.[71] Although stated in an exaggerated manner, this is a view shared by this article. A debate on privacy in Parliament is indeed long overdue, and there has been a prolonged and continuing failure to rescue a lagging development in English common law.
Specifically comparing the differences within breach of confidence, it would appear Australian law is ‘more strict’ for unlike in the UK, there is no ‘overarching public interest consideration’ in Australia.[72] Defendants are entitled to expose wrongful or criminal conduct, ‘but only to the relevant authorities.’ It is ‘highly unlikely’ that an Australian court would sanction media disclosure, save for conduct of a serious nature, for example wrongdoing in public office. Australian law also does not recognise a person’s capacity to select portions of their life in the public domain but yet lose the ability to argue for the right to privacy for doing so[73]. It is submitted that as this was the foundation of the decision to partly reject Ms Campbell’s privacy claim, it is suggested that Ms Campbell most likely would have succeeded in Australia compared to what Mukerjea asserts is the ‘privacy mecca’ of the UK.[74]
It is clear that privacy is also a controversial battleground in Australia. It is interesting to note an acknowledgement that should privacy become a statutory tort, ‘such a right will no more prevent invasions pf privacy than the law of negligence prevents car accidents.’ However, Pearce argues that it would ‘reduce [invasions of privacy] and provide legal redress in cases of serious personal harm.’[75] Enshrining privacy as a statutory tort would ensure greater and more efficient protection, and act as a powerful deterrent to prevent distressing invasions into a persona sphere. The HRA 1998, although placing respect for human rights at the centre of any legal dispute, requires citizens to understand Article 8 to be a qualified right that may be restricted. This surely dents any shield the Act claims to lend to privacy. Citizens may agree to cede their rights to the state for the benefit of the community entire, but only on the condition that the state holds these rights on trust[76]. In establishing privacy as a tort, the British government would be demonstrating their sincere commitment of respecting this vital, natural right to the general public, who had been so outraged by the News of the World hacking scandal.[77]
Conclusion
It is clear that the question of reforming the law of privacy in the UK is not straightforward. As has been discussed, there is an acknowledgement there has been development in the common law, specifically in the substantial development of the tort of breach of confidence. However, it is submitted that this development has been neither ‘coherent nor consistent’[78] which has resulted in confusion and conflict. High profile celebrity cases and the revelations of the News of the World phone hacking scandal have ignited the debate surrounding the failure to adequately protect privacy in a world of technological advancement. That Article 8 and Article 10 appear stuck at loggerheads, forcing the courts to regularly balance competing interests under the HRA 1998 is another complex issue, especially in a political context. The difficulty in restricting the media and strengthening privacy laws is the ‘risk of inhibiting the investigative role of the media….crucial in establishing the accountability of government.’[79] It involves a difficult task of careful judgement; however undoubtedly ’difficult this area may be; unimportant it is not.’[80] It is therefore submitted that reform is needed, and that it should be via a careful and reasoned path. The courts as protectors of human rights should be prepared to instigate such reform, being in a better position due to their understanding of balancing privacy and free speech and so trigger a Parliamentary debate. The result could be concise legislation, perhaps similar to the approach practised in the USA that recognises privacy as a Tort in a categorised manner. This would provide clarity of the law, providing effective remedies to victims and necessary relief to courts.
It is perhaps fitting to conclude on a wry, wary acknowledgement of past proposals to reform the law. The 1980s Calcutt Committee positively set about drafting a statutory tort of privacy. Within six months, the chairman was pessimistic, for the committee were unable to even agree on the actual pronunciation of privacy[81]. It is hoped the future holds a more productive prospect for privacy.
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Bibliography
Primary Sources
Case Law
Australia
ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199; 185 ALR 1; 76 ALJR 1
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
European Court of Human Rights
Earl Spencer v United Kingdom (28851/95) (1998) 25 E.H.R.R. CD105
Mosley v United Kingdom (48009/08) [2012] E.M.L.R. 1; [2012] 1 F.C.R. 99
Murray v United Kingdom (14310/88) (1995) 19 E.H.R.R. 193
Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15; (2003) 36 E.H.R.R. 41
Von Hannover v Germany (59320/00) [2004] ECHR 294
United Kingdom
A v B Plc [2003] Q.B. 195; [2002] 3 W.L.R. 542
A and Others v Secretary of State for the Home Department [2004] UKHL 56
Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109
Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22; [2004] 2 A.C. 457
Derbyshire CC v Times Newspapers [1993] AC 534
Donoghue v Stevenson [1932] UKHL 100
Douglas v Hello! Ltd [2001] QB 967; [2001] 2 W.L.R. 992
Duchess of Argyll v Duke of Argyll [1967] Ch 302
Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804
Kaye v Robertson [1991] F.S.R. 62 (CA); Times, March 21, 1990
Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB); [2008] E.M.L.R. 20
Murray v Express Newspapers (2009) Ch 481
R (Greenfield) v Secretary for the Home Department [2005] UKHL 14; [2005] 1 W.L.R. 673
R (Daly) v Secretary for the Home Department [2001] UKHL 26; [2001] 2 AC 532
R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368
R (Ullah) v Special Adjudicator [2004] 2 AC 323
The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB)
The Gleaner Co Ltd and Another v Abrahams [2003] UKPC 55; [2004] 1 A.C. 628
Theakston v MGN Ltd [2002] EWHC 137 (QB); [2002] E.M.L.R. 22
Thoburn v Sunderland CC [2003] QB 151, [2002] 3 WLR 247
Wainwright v Home Office [2003] UKHL 53; [2004] 2 AC 406
Watkins v Home Office [2006] UKHL 17; [2006] 2 AC 395
United States of America
Moreno v Hanford Sentinel, Inc 2009 WL 866795 (Cal. App. Ct. April 2, 2009)
Sidis v F-R Publishing Corporation 311 U.S. 711 61 S. Ct. 393 85 L. Ed. 462 1940 U.S.
Legislation
Anti-Terrorism, Crime and Security Act 2001
Human Rights Act 1998
Rent Act 1977
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Footnote citations:
[1] G Phillipson and H Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Era’ 63 MLR 660
[2] Kaye v Robertson [1991] FSR 62, (CA)
[3] N 1, 661
[4] L Clements and J Young, ‘Human Rights: Changing the Culture’ (March 1999) 26 Journal of Law and Society 1,4
[5] N McBride and R Bagshaw, Tort Law (4th edn, Pearson 2012) 590
[6] J Cooke, Law of Tort (11th edn, Pearson 2013) 493
[7] D McClean, Privacy and Its Invasion (Greenwood Press 1995) 3
[8] S Warren and L Brandeis, The Right to Privacy (December 1890) 4 Harvard LR 193 ,193
[9] A Travis and C Arthur, ‘EU court backs 'right to be forgotten': Google must amend results on request’ (The Guardian 13th May 2014)
[10] P Freund, Privacy (1961) 192 in Neill E, Rites of Privacy and the Privacy Trade: On the Limits of Protection for the Self (MQUP 2001) 70
[11] J Wright, Tort Law & Human Rights (Hart Publishing 2001) 163
[12] W.V.H Rogers, Winfield & Jolowicz: Tort (18th edn, Sweet & Maxwell 2010) 669
[13] N 5, 589
[14] G Samuel, Law of Obligations (Edward Elgar Publishing 2010) 161
[15] N 11, 164-165
[16] N 14, 162
[17] R (Greenfield) v Secretary for the Home Department [2005] UKHL 14, para 19 (per Lord Bingham)
[18] Consultation Paper: Bringing Rights Home: Labour’s Plans to Incorporate the European Convention on Human Rights into UK Law (1996) London: Labour Party
[19] N 4
[20] AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn, London: Macmillan 1959)
[21] H Barnett, Constitutional & Administrative Law (9th edn, Routledge 2011) 400
[22] P Leyland and G Anthony, Textbook on Administrative Law (7th edn, OUP 2013) 59
[23] S6(3)(b) includes courts and tribunals as ‘public authorities’.
[24] A Acquisti, L John and G Loewenstein, ‘What Is Privacy Worth?’ (June 2013) 42 JLS 249, 253
[25] Ghaidan v Godin-Mendoza [2004] 2 AC 557; where the House of Lords interpreted the ‘spouse’ to relate to a surviving homosexual partner to enable him to benefit from the relevant Rent Act 1977 provision.
[26] Consider Lord Atkin in relation to establishing the duty of care in the seminal case, Donoghue v Stevenson [1932] UKHL 100 (para 40-41)
[27] R (Ullah) v Special Adjudicator [2004] 2 AC 323 para 20
[28] Mosley v United Kingdom (48009/08) [2012] E.M.L.R. 1
[29] Murray v United Kingdom (14310/88) (1995) 19 E.H.R.R. 193
[30] Peck v United Kingdom (44647/98) [2003] E.M.L.R. 15
[31] Von Hannover v Germany (59320/00) [2004] ECHR 294
[32] Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22
[33] Murray v Express Newspapers (2009) Ch 481
[34] N 32, para 73 per Lord Hoffmann
[35] Thoburn v Sunderland CC [2003] QB 151 para 62-64 per Laws LJ
[36] N 5, 589-590
[37] T Bingham, The Rule of Law (Penguin Books 2011) 76
[38] R (Daly) v Secretary for the Home Department [2001] UKHL 26
[39] N 5, 593
[40] J Cooke, Law of Tort (11th edn, Pearson 2013) 500
[41] Duchess of Argyll v Duke of Argyll [1967] Ch 302
[42] Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109, 281
[43] Mosley v News Group Newspapers Ltd [2008] EWHC 1777
[44] Douglas v Hello! Ltd [2001] QB 967, 973
[45] Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, 807
[46]Earl Spencer v United Kingdom (28851/95) (1998) 25 E.H.R.R. CD105
[47] Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, para 134 (per Baroness Hale) and para 21 (per Lord Nicholls)
[48] The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 para 33
[49] A v B Plc [2003] Q.B. 195
[50] Ibid para 60 (per Lord Woolf CJ)
[51] N 47
[52] Ibid, para 98 (per Lord Hope)
[53] Ibid, para 14 (per Lord Nicholls)
[54] Rogers, Winfield & Jolowicz: Tort (18th edn, Sweet & Maxwell 2010) 676
[55] Wainwright v Home Office [2003] UKHL 53 para 34 (per Lord Hoffmann)
[56] N 40, 503
[57] N 47, para 62
[58] The Gleaner Co Ltd and Another v Abrahams [2003] UKPC 55 para 54
[59] Watkins v Home Office [2006] UKHL 17, para 62 (per Lord Rodger)
[60]Deakin, Johnston and Markesinis, Markesinis and Deakin’s Tort Law (5th edn, OUP 2003) 721
[61] D McLean, Privacy and Its Invasion (Greenwood Press 1995) 120
[62] M Richardson, ‘When should privacy be legally protected?’ (2012) 341 Issues in Society 13
[63] Sidis v F-R Publishing Corporation 311 U.S. 711 61 S. Ct. 393 85 L. Ed. 462 1940 U.S.
[64] Moreno v Hanford Sentinel, Inc 2009 WL 866795 (Cal. App. Ct. April 2, 2009)
[65] N 41, 739
[66] H Kalvin, ‘Privacy in Tort Law – Were Warren and Brandeis Wrong?’ (1966) 31 Law and Contemporary Problems 326, 339-340
[67] J Wade, Defamation and the Right of Privacy, (1962) 15 Vand.L.Rev. 1093,1120-22
[68] S8; the courts must be ‘satisfied’ the award is necessary s8(3). See too s12 specifically relating to relief that may restrict Article 10.
[69] M Richardson, ‘When should privacy be legally protected?’ (2012) 341 Issues in Society 12
[70] Ibid, 13
[71] B Keane, ‘How the Media will react to a right to privacy’ 341 Issues in Society 40
[72]S Mukerjea, ‘Little Evdence Australia Needs a New Privacy Law’ (2012) 341 Issues in Society 17
[73] Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
[74] Ibid, 18
[75] M Pearce, ‘Legislate the Right to Privacy’ (2012) 341 Issues in Society 14
[76] T Paine, Rights of Man (Dover Publications 2000)
[77] Independent report: Leveson Inquiry - Report into the culture, practices and ethics of the press
https://www.gov.uk/government/publications/leveson-inquiry-report-into-the-culture-practices-and-ethics-of-the-press (Published 29th November 2012) accessed 21st April 2014 para 7-9
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[80] T Bingham, The Rule of Law (Penguin Books 2011) 76
[81] D Eady, ‘Injunctions and the protection of privacy’ (2010) 29(4) Civil Justice Quarterly 411, 413