Current Position of Privacy Law in the UK

In recent years, the law on privacy has developed from the time of the traditional breach of confidence cases such as Coco v Clark (1969) [1] and Attorney-General and Observer Ltd. v. Times Newspapers Ltd. (“Spycatcher “) [2] to the Human Right era with cases such as Von Hannover v Germany (2005) [3] , Campbell v Mirror Group Plc (2004) [4] , PG and JH v United Kingdom (2001) [5] . These developments have lead to the acknowledgement of a legitimate expectation of protection and respect for private life.

However, privacy has being consider in several cases such as Peck v United Kingdom (2003) [6] in which the European Court of Human Right acknowledge that even though defendant was filmed in a public street, he was not there for the purpose of participating in any public event and he was not a public figure therefore his right under Art. 8 were violated [7] . Although, the plaintiff in this case was successful in his claim, this case expose further gaps in domestic privacy protection and thereby calling for more legislative reforms, this time in the area of close circuit television which is not specifically covered by the Regulation of Investigatory Power Act 2000 [8] . This highlighted the argument that English law do not have an adequate remedy to cover invasion of privacy through capture images either still or recording in semi-public and public places.

Chapter 1: This chapter will provide an introduction to UK privacy protection before the enactment of the Human Right Act 1998. It will focus mainly on, the remedy of trespass and traditional breach of confidence.

Chapter 2: This chapter will explore the changes made to privacy in the United Kingdom after the Human Right Act was passed.

Chapter 3: This chapter will explore the meaning of public privacy and the development of this in the United Kingdom by exploring the decision of the House of Lords in Campbell v Mirror group newspaper and the decision of the ECHR in Hannover v Germany and its effects on English law on privacy.

Chapter 4: This chapter will analyse the decisions in Wainwright v United Kingdom and Peck v United Kingdom analysing the loopholes in the law of privacy after the emergence of the Human Right.

Conclusion: This final chapter will take into consideration all the arguments developed from case law and Government consultation papers, in order to draw on a conclusion of whether the current law on privacy is adequate to deal with all kinds of privacy, especially, those invaded with cameras and CCTV surveillance and if reform is needed how it can be introduced into the English legal system, while also considering the implication of these reforms.

Chapter One

Introduction to the UK privacy protection before the Human Right Act 1998.

What is Privacy?

The right to privacy refer to the general right to be left alone, a desire to be allowed to enjoy a particular space, either alone or with others, which the state or others should not be allowed to penetrate [9] .

According to the Calcutt Committee, privacy was defined as;

The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication [10] .

Legal Academic writers such as Winfield defined infringement of privacy as an ‘unauthorised interference with a person’s seclusion of himself or his property from the public.’ [11] The most concise was the one adopted by Judge Cooley, when he called it ‘the right to be let alone.’ [12]

W.A. Parent has complained that a conception in which attention can invade privacy is far too broad, because it means that we lose privacy every time we step outside the house and therefore become a subject of at least some attention from strangers [13] ; this, however, misses the point that privacy need not be an absolute state of affairs to be valuable and that in fact in our everyday lives are constant trade off between sociability, human interactions, the formations of relationships, the aim is for a reasonable degree of privacy not an absolute state [14] .

As Helen Fenwick suggested, a legal right to privacy seek to give the individual the ability to apply his or her own standards in terms of information and attention, within ordinary societal constraints [15] . Although, this has been the major issue when considering privacy in public places, as a result of the differences in jurisdiction between the European court of Human Right and domestic courts.

English Law has been reluctant to recognise a general law of personal privacy [16] . Although, there have been several debates on the need for privacy right, numerous objections have arisen as to the development of this new area of law and effectively hindered its establishment. These have included the concerns over the effect it would have on the press, limiting what was reported on, also known as the “chilling effect”.

However, the right to respect for privacy as has for sometime been recognised as part of domestic law of a number of countries. For example, the United States of America have the US Privacy Act 1974 and the tort or torts of invasion of privacy. In Canada, they have the Canadian Protection of Privacy Act 1974 and in France, Art 1382 of the French Civil Code [17] .

The legal debate on whether the United Kingdom should recognise a remedy for invasion of privacy (by statue or common law) has been continuing since 1961 when the private member bill “A Right to Privacy” was introduced by Lord Mancroft in the House of Lords [18] . The first clause of this bill proposed that;

A person should have a right of action against any other person who without his consent published of or concerning him in any newspaper or by means of cinematography, exhibition or television or sound broadcasting words relating to his personal affairs or conduct.

Although two judges, Lord Goddard and Denning spoke in favour of the Bill, the third Judge speaking for the government Viscount Kilmuir LC felt;

that the difficulties involved in creating a new legal right, which would restrain the improper invasion of privacy without at the same time interfering with proper reporting of matters which ought to be reported, were such as to outweigh the merits of the proposal [19] .

These were followed by governmental expert reports on the matter such as the JUSTICE Report (1970) [20] , The Calcutt Report (1990) [21] and The National Heritage Report (1993) [22] .

The Calcutt Report on invasion of privacy concluded that there was no “pressing social need” to provide remedy for those whose image or voices are appropriated without their consent. They suggested protection of Breach of Confidence; despite the fact that it was questionable whether it can cover this aspect of privacy.

The Younger Committee’s Report on Privacy’ in 1972 was carried out in response to the government’s query on whether “….legislation is needed to give further protection to the individual citizen…against intrusions into privacy although it recommended new tortuous liabilities and highlighted the possibility of using the equitable principle of breach of confidence as a cause of action for protecting information unlawfully acquired [23] .

The Younger’s in their recommendation recognised that there is a need for changes in law as regards surreptitious unlawful surveillance by the means of technical device and also unlawful surveillance by such means [24] . In terms of the two main kind of invasion of privacy identified by the Younger Committee, protection is offered by the torts of trespass. Information privacy is mainly protected by the law of breach of confidence [25] .

Even Judges have recognised the need for privacy legislation. Lord Denning in the case Schering Chemical v Falkman Ltd (1982) [26] he stated that, ‘while freedom of expression is a fundament right, so also is the right to privacy.’ [27]

Despite these recommendations, it has not been smooth sailing in favour of general law of privacy in the United Kingdom. Rather indirect piecemeal protection of privacy has been afforded where the facts on individual case have permitted through the application of existing cause of action. A variety of areas of torts and equity, such as breach of confidence, trespass, copyright and defamation are use to defend general right to privacy [28] .

For example in Kaye v Robertson Glidewell LF stated: ‘It is well known that in English law there is no right to privacy….in the absence of such right the plaintiff’s advisers have sought to base their claim on other well established right of action [29] . It is clear from this statement that these areas and others were treated as covering specific and distinct interests which only incidentally offered protection to privacy.

This does not mean that protection was not offered prior to the enactment of the Human Right Act 1998. The development of these laws has been all over the place and not systematically directed at privacy as such. Breach of confidence and trespass are common law remedies which are most likely to assist a litigant complaining of disclosure of personal information obtained surreptitiously [30] . However, these remedies are very limited; breach of confidence is more focused on contractual relationship of confidence between parties and trespass on property rights.

The most difficult question with these remedies

This is despite the fact that the term ‘privacy’ was used in a number of rulings [31] .Without doubt such arrangement is questionable, given the amount of distress and harm that can be cause to an individual when their images is recorded and distributed in public places. Any non-consensual photography or surveillance is a compromise of dignity and secret surveillance can logically never be consensual, and should never be allowed

Simply because we venture into public, to go about our further our private lives, we do not as a matter of fact relinquish all claims to a private sphere. Even tactic consent to being observed by others cannot automatically extend to their taking and justification of publishing photographs

The Law of Trespass as Privacy Protection

The law of trespass to the person, alongside the law of assault can protect an individual from interference with his or her physical person. In addition to these, law of trespass to land can impact on the right to private and home life and thus be relied on in the claim of invasion of privacy.

The law of trespass to land is primarily concerned with the protection of property rather than privacy as such but it is capable of protecting specific aspects of a person’s right to private life.

The law of trespass does provide some privacy protection in respect of land which is in the possession of an individual however it is very limited as the claimants has to prove the following;

that the interference with the plaintiff’s interest was direct; and

some physical contact with the plaintiff or his property.

This principle was relied on in Hickman v Maisey (1900), [32] where the claimant relied on trespass to prove invasion of privacy. In this case the claimant owned and occupied land on which for a fee he allowed a race horse trainer to train horse. The defendant, a racing tout, observed the horses from a highway that crossed the claimant’s land, with a view to gain information about the horses. The claimant brought an action in trespass for damages and an injunction. He was successful with claim and was awarded damages in addition to the injunction.

Trespass however is very limited as a remedy for privacy. To make a successful claim a defendant’s unauthorised presence on claimant’s land is very significant [33] . It will only really prove useful when privacy is infringed by entry onto the victim’s own land.

In situation where there is invasion onto land by another, the victim will depend upon the other’s willingness to sue which will quite naturally often not be in his interest. For example in Kaye v Robertson, the hospital authority would have been able to sue for trespass as the reporter committed trespass against them, but the victim of invasion of privacy would not because he’s only a hospital patient and intrusion was not at his personal property. Therefore only an individual with an interest in the land over which the infringement of privacy right occurs has a remedy in trespass.

An injunction may be granted to prevent a future trespass; one may not be available to prevent the publication of information or photograph obtained as a result of the trespass [34] . It could also be analyse that if the situation of Hickman had been that the defendant watched the horses from a land that was not claimants, claimants would not have been successful with the claim of trespass as a privacy remedy.

This lay more emphasis on the fact that an individual cannot expect a reasonable expectation of privacy when engaging in their everyday activities which acquire a private quality, such as out walking in the public. There can be no protection if the victim is in a public place.

Breach of Confidence as Privacy Protection

The concept ‘breach of confidence’ has been the strongest candidate for increasing the protection of privacy in the English Law. The Younger Committee considered the law of breach of confidence offers the most effective protection of privacy in the whole of existing English law civil or criminal as it covers more aspect of private privacy than trespass [35] .

An action of Breach of Confidence is the closest in substance to an action of invasion of privacy when it comes to disclosure of personal information. Traditionally this remedy is very limited as it does not cover all areas of privacy especially invasion through surreptitious means [36] .

The equitable principle of breach of confidence has developed from its original purpose of dealing with commercial information into also providing protection for disclosure of personal information.

The traditional ingredients for a successful claim for breach of confidence were set down by Megarry J in Coco v A.N. Clark (Engineers) Ltd [37] :

The information must have ‘the necessary quality of confidence about it’;

The information ‘must have been imparted in circumstances importing an obligation of confidence’; and

There must have been an ‘unauthorised use of that information to the detriment of the party communicating it’.

Even though the focus of breach of confidence was the protection of commercial information, this did not mean that personal information was not protected at all. However, according to Megarry J in Coco v A.N. Clark Engineers Ltd [38] , invasion of privacy in public places could not be classified as breach of confidence. Megarry V.C in his statement said “something which is public knowledge cannot per se provide any foundation for proceeding for breach of confidence”. This statement highlights the loopholes in breach of confidence as a law protecting privacy because the courts have not expressly considered the question of whether a person can have a reasonable expectation of privacy in the public places because they made it clear that confidentiality cannot be attached to information which had reached the public domain.

Lord Goff elaborated on this in Attorney-General and Observer Ltd. v. Times Newspapers Ltd. (“Spycatcher”) [39] . He said: The principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain then, as a general rule, the principle of confidentiality can have no application to it. That is; information cannot be confidential if everyone knows it. However, it is difficult to decide when information is in classified to be in the public domain. [40]

Under the traditional model of confidence, one or two ingredients had to be satisfied for an obligation of confidentiality to arise. The first was that, at least in cases involving personal, as opposed to commercial information there had to be some identifiable, pre-existing, intimate or necessarily confidential relationship between confider and confidant, such as professional relationship from which the obligation of confidence could be inferred [41] .

As Lord Hoffman analysed; Breach of confidence was an equitable remedy and equity traditionally fastens on the conscience of one party to enforce equitable duties which arise out of his relationship with the other. So the action did not depend upon the personal nature of the information or extent of publication but upon whether a confidential relationship existed between the person who imparted the information and the person who received it [42] .

Personal information, even if it had the necessary quality of confidence, could only be protected if it been imparted in circumstances importing an obligation of confidence. Historically, the action for breach of confidence required a pre-existing relationship of confidence between the parties such as professional relationship of trust [43] .

This requirement laid heavy stress on the limitation of traditional breach of confidence as a doctrine centred more or less on a relationship of confidence, as it could not offer effective privacy protection where as it is most commonly found the wrong complained of was an intentional and even surreptitious taking of information with a view to publication.

Privacy however, is not relationship based in the same way as confidence. Anyone might invade an individual’s privacy whether or not there has been any previous contract let alone a relationship of trust and confidence between them [44] . Clearly, such requirement would be fatal when breach of confidence is employ to protect privacy.

Subsequent cases however, showed a trend toward a new approach towards breach of confidence. In Francome v Mirror Group Newspaper Ltd [45] , an injunction was sought to restrain publication of an illegally tapped phone conversation. This case paid more attention to the way the information was gather rather than the relationship between the parties and satisfying the criteria laid down in Coco v Clark and thereby increased the scope of breach of confidence as a privacy remedy.

Further development of this expansion can be confirmed through the statement made by Browne- Wilkinson in Stephens v Avery that “….the existence of confidential relationship was no longer the determining factor [46] . Instead, confidentiality was enforced simply on the grounds that the information was received and ‘on the basis that it was confidential.

The span of breach of confidence was furthered developed in Attorney General v Guardian Newspaper Ltd, in which Lord Geoff identified the requirement to be:

“…confidential information [which] comes to the knowledge of a person…in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should precluded from disclosing the information to others” [47] .

He also noted that there would be an obligation of confidence in a situation whereby “…an obviously such as a private diary, is dropped in a public place and then picked up by a passer-by.” Lord Keith furthered on, commented that breach of confidence should seek to protect the right to privacy [48] .

The new model re-interpreted the implied agreement of confidentiality; it is now implied into dealing between parties, not on the basis of mutual, though unspoken agreement on the matter, but on the at basis that a reasonable man in the position of the defendant would assume such an obligation [49] .

It may now cover cases where obviously personal information is surreptitiously obtained by the media and then published without the consent, since in such cases it would be open to the court to find that the reasonable man would assumed an obligation of confidence [50] .

When used this way, the essential importance served by protecting confidence thus becomes simply preventing private or personal information entering the public domain without the plaintiff’s consent. While still termed ‘breach of confidence’ the action becomes almost indistinguishable from a ‘pure’ privacy tort [51] .

While these changes emphasised a significant development on this area of law, it still does not effectively cover the invasion of privacy through the use photographs or recordings without the consent of those depicted and common law was not showing any willingness either to cover this limitation in law.

This incapability of English law was illustrated only a year later, in Kaye v Robertson [52] .

The claimant (Gordon Kaye) was a well known actor who was involved in a serious car accident resulting in extensive head surgery. Whilst recovering in his hospital bed, journalist from the “The Sunday Sport”, ignoring signs put up by the hospital prohibiting such action, gained entry and began taking photographs using flash photography and interviewing the claimant. When it was announced by the defendants that publication was to take place, a friend acting on behalf of the claimant sought an injunction.

The Court of Appeal was clearly shocked at the defendants’ actions as Lord Bingham highlighted in his statement that; “Any reasonable and fair-minded person hearing the facts … would in my judgment conclude that these defendants had wronged the plaintiff” and considered that the plaintiff had suffered “a monstrous invasion of his privacy … “. There was no clearer situation of a person having the “right to be let alone by strangers with no public interest to pursue … “. Notwithstanding this monstrous invasion of the plaintiff’s privacy, the Court conceded that invasion of privacy was not actionable under English law

Kaye v Robertson, illustrated that at that point the scope of breach of confidence was not wide enough to protect privacy in a broad sense and confirmed that UK law did not recognise a law of privacy.

As much as Mr Kaye deserved protection, English law failed to provide an adequate remedy and it was very much criticized in Kaye v Robertson.