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  • Level: GCSE
  • Subject: Law
  • Word count: 5981

Is there a tort of invasion of privacy?

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CONFIDENCEAND PRIVACY (1) Is there a tort of invasion of privacy? It has often been said that the English law does not recognise a right to privacy 'as such'.1 It has been widely agreed that privacy rights might find incidental protection by causes of action designed to protect other interests, but there is no distinct cause of action for 'invasion of privacy'.2 This point was graphically illustrated in the case of Kaye v Robertson.3 This case involved a well known actor who had undergone extensive surgery and was in hospital when he was photographed and allegedly interviewed by a tabloid newspaper. The journalist and the photographer for the newspaper ignored notices asking visitors to ask permission from a member of staff before visiting patients. The claimant relied on causes of action in libel, trespass to the person, passing-off and malicious falsehood. It was accepted by the claimant's lawyers that his rights could not be protected by an action for breach of privacy. This case is frequently cited in support of the proposition that the English law does not recognise a tort of privacy;4 however it has also been pointed out5 that the action was not brought in confidence, and no cases derived from the law of confidence were cited in court.6 Although the Court of appeal refused his application, it noted that the case: "...highlighted, yet again, the failure of both the common law and of statute to protect in an effective way the personal privacy of individual citizens."7 The protection of privacy was also referred to in the case of R v Khan8. This case involved the admissibility of evidence secured through the use of concealed police surveillance equipment in relation to the defendant's suspected heroin importation, the House of Lords noted that the Article 8 (ECHR) right to privacy would only be of relevance in order to assist the construction of the law in a case of ambiguity or doubt. ...read more.


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 tort It 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). ...read more.


The privacy codes of the ITC54 and BSC54 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. CONCLUSION The adjudication of regulators, whether published or broadcast, has limited effect. Since regulators seek to avoid repeating the offending material, the adjudication tends to be enigmatic. In addition, some adjudications are anonymous, and this means that they often have limited value in providing either vindication for the complainant or future guidance for the media. Some BSC and ITC decisions must be broadcast, and all adverse PCC decisions must be published. Thus, broadcasters tend to take more steps towards avoiding invasions of privacy than the printed press (i.e. newspapers and most magazines). In practice, the lack of any other remedies, such as fines or awards of compensation, means that invasion of privacy will occur in all forms of the media. In general there is no restraint or monitoring. On the other hand, the public's 'right to know' should not be blocked, as Lord Woolf said: "the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest".54 On the whole, privacy is protected to a certain extent by regulators, their powers are limited and the ability to challenge their decisions, up to now, has also been very limited. It remains to be seen whether applications under the Human Rights Act or the regulation under OFCOM will improve this position. The major flaw in the regulatory system, as regards to the protection of privacy, is that the regulators have no power to stop broadcast or publication. The only remedy is adjudication, by which time the information has already been published and the damage done. Therefore there is clearly a lot of room for improvement. ...read more.

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