Evaluation of the development of the law; should we have a full-blown privacy law?

Introduction

It is difficult to define the right to privacy in a definitive manner and the lack of a coherent definition of ‘privacy’ lies at the heart of lack of legislative will in creating a comprehensive privacy law or creating a specific tort of invasion of privacy. The notion of privacy may well mean different things to different people. Another factor responsible for lack of legislative will is the obvious conflict posed in interests of privacy and freedom of expression. Both rights are recognised by the European Convention of Human Rights (ECHR), and therefore balancing is required between these two rights.

This essay argues that the changing dimensions of the right to privacy have well led to the creation of a limited tort of privacy and therefore, there is a need to take it to the logical next level and create a full blown privacy law.

Right to Privacy - Protections in Common Law & Statutory Law

In Wainwright v Home Office, [2004] 2 AC 406, Lord Hoffman stated that English law neither contains nor needs to contain a specific privacy tort (Horsey and Rackley, 2015, p.434). Similar opinion was expressed by Baroness Hale in Campbell v Mirror Group Newspapers, [2004] UKHL 22, where she said that English law could not develop the general tort of invasion of privacy. This suggests that there is a perception that there cannot be or should not be a full blown privacy law and that the protections that are offered by the law at present are sufficient. There have always been protections in the law of tort where right to privacy is protected. These protections are found in the law of: trespass, nuisance, defamation, malicious falsehood, and breach of confidence. The Protection from Harassment Act 1997, which is primarily a law to penalise harassment of people, also has a close nexus with right to privacy, as harassment may even take the form of intrusion into privacy.

But the protection of the right to privacy in common law is piecemeal in nature as also seen in Kaye v Robertson and Sport Newspapers Ltd, [1991] FSR 62 where the Court of Appeal recognised the need for creation of tort of privacy but also held that any such creation will have to come from the Parliament.

One of the important factors that obstructs an enactment of a full blown law on privacy, is the need to balance privacy interests with the right to freedom of expression. The ECHR protects both rights. The Human Rights Act 1998 (HRA 1998), which incorporates ECHR rights in English law, has accordingly both these rights to protect and the courts are well placed to do so (Moreham, 2006). ECHR, article 8 recognises the right to private and family life. It is not an absolute right and can be derogated from, if necessary for the ‘public interest’ and to protect other people’s freedoms. ECHR, article 10 is the right to freedom of expression. As such, balancing of competing interests is required as between the right to privacy and the right to freedom of expression. It is important to note that article 10(2) provides certain restrictions on freedom of expression, including those restrictions that are “are necessary in a democratic society”. In Campbell v Mirror Group Newspapers, the court has given equal preeminence to both rights. In a recent case, Mosley v News Group Newspapers, [2008] EWHC 1777 (QB), the court has refused to allow ‘public interest’ arguments in private life of Mosley to prevail over his right to privacy. Thus we do see protection of the right to privacy in both the common law and statutory law.

Development of Breach of confidence

Breach of confidence stems from equity and its purpose is to protect secret or confidential information. An action for breach of confidentiality has been the mainstay of right to privacy protection in English law. For the sustainability of the action, there has to be a duty of confidentiality by the party (Coco v AN Clark (Engineers) Ltd, [1969] RPC 41). In Coco, three requirements were laid down by the court: information should have the necessary quality of confidence; it should be imparted in circumstances importing an obligation of confidence; and it should have been misused to claimant’s detriment.

It is not necessary that the duty should be preexisting (Attorney General v Guardian Newspapers Ltd, No.2, [1990] 1 AC 109). Obligation of confidence would arise whenever a party gains knowledge of information and knows (or ought to know) that such information was confidential (Venables & Thompson v News Group Newspapers Ltd., [2001] EWHC 32 (QB)). At the very least, where an individual experiences a traumatic or humiliating event in a public place or retreats to a secluded place, the right to privacy should be protected (Moreham, 2006). Equitable remedy developed by courts from Albert v Strange, ChD 8 Feb 1849 and has continued to develop over time. Recent cases have pointed to the trend in further strengthening of the law. In Campbell v Mirror Group Newspapers Ltd, [2004] UKHL 22, a two stage test was devised by the court, which involved: claimant’s reasonable expectation of privacy; and consideration if that interest in maintaining privacy outweighed defendant’s interest in freedom of expression. Campbell is also important because majority of the court felt it was unnecessary to refer to Convention rights and simply revising the scope of the tort would be enough (Morgan, 2004). In Douglas v Hello Ltd, [2005] EWCA Civ 595 , breach of confidentiality became a privacy action in every sense of the term (Horsey and Rackley, 2015, p.443). But the case also became important as is now made it possible to file a number of other privacy claims, especially for celebrities and public figures. Campbell v Mirror Group Newspapers, [2004] UKHL 22, which is the “closest the British courts have come to recognising a tort of privacy, always under the name of breach of contract” (Horsey and Rackley, 2015, p.445). Moreover, as Lord Nicholls admitted, the passage of HRA 1998 and the ECtHR jurisprudence now prompted him to acknowledge that values in ECHR, articles 8 & 12 are now part of the cause of action of breach of confidence.

Vidal-Hall v Google Inc., [2015] EWCA Civ 311, is a Campbell derivation, where new tort has emerged to protect ‘private information’, especially in the area of data protection. Additionally, the plaintiff is not required to prove pecuniary loss. This remedy exists along-side traditional breach of confidence which protects confidential information. By and large, it is seen that the judiciary has been ambivalent to the right of privacy (Phillipson, 2003).

Lack of legislative intent

The Younger Committee Report on Privacy (1972) came on the heels of three failed bills in the Parliament that related to the right of privacy. Each of the three bills introduced at different times in the 1960s failed. The last of these bills, Mr. Brian Walder’s Bill (1969) was rejected as it was though to encroach too much into freedom of expression. The Younger Committee Report also did not support extending the law of liberty any further than where it was at that point of time. Two points are pertinent here: (a) it was thought that there were sufficient remedies for intrusion of privacy; and (b) self regulation of media outlets was preferred (Horsey and Rackley, 2015, p.436).

The Calcutt Committee (1990) also rejected the creation of a tort of privacy and once again expressed their approval of self regulation of media through the Press Complaints Commission. An important factor responsible for the rejection was that there was no definitive meaning of ‘privacy’ and the Committee studied without success the laws of USA and France in order to find a sufficient definition. Even before the HRA 1998, British broadcasters have been under a statutory obligation to respect privacy, under the Broadcasting Act 1996. If there was any unwarranted infringement of privacy in any programme, complaints against the same could be made to the Ofcom. The Broadcasting Code of Ofcom, section 8 defines the best practices with respect to private lives. BBC’s Editorial Guidelines are also made on the same lines. Therefore, the major focus was on self regulation for the purpose of protection of privacy rights. The Culture, Media and Sport Select Committee in its 2007 report, ‘Self Regulation of the Press’ also was laudatory of the self regulations and the balance already developed in the privacy-freedom of expression conflict pertaining to the press. It went so far as to say that any statutory regulation would be “a dangerous interference with the freedom of the press”. We see therefore, that regulation was left to the courts, OFCOM and the press itself. The Press Complaints Commission was (PCC) given more authority for self regulation. It is pertinent to note that PCC was set up by press to regulate press. Although the Editor’s Code of Practice suggested ‘privacy’ should be respected but PCC had few powers and was thought to be flawed. The PCC came under heavy criticism in the Leveson enquiry and was finally wound up 2014. The Independent Press Standards Organisation (IPSO) was established in its place. It is important to note here that one of the key recommendations of the Leveson Committee was that self regulation of the media was the best route, albeit with some independent verification of these regulatory arrangements (Horsey and Rackley, p.2015, p.440).

Conclusion

The tort of privacy has been developed by the courts through common and statutory law, in all but name. Sufficient progress has been made in this area and the law has evolved into something much more tangible as far as the right to privacy is concerned. In light of this evolution, even if a full blown privacy law were to be made, it would not disturb the right to freedom of expression is a great way. Rather it may give direction to the courts as to how to continue resolving such conflicts between two important rights.

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