Is there a tort of invasion of privacy?

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’. 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’. This point was graphically illustrated in the case of Kaye v Robertson. 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; however it has also been pointed out that the action was not brought in confidence, and no cases derived from the law of confidence were cited in court. 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.”

The protection of privacy was also referred to in the case of R v Khan. 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. The House of Lords did not lament this lacuna in the law. The House of Lords concluded that the evidence could not be rendered inadmissible even though it could be said to have contravened Article 8. Lord Nolan said: “…it would be a strange reflection on our law if a man who has admitted his participation in the illegal importation of large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded.” When Lord Nolan heard the case he, along with Lord Taylor, highlighted the fact that the Convention had not been incorporated into English Statutory law. It remains open to speculation whether a decision similar to R v Khan would be adopted today, or whether the same result would be achieved in a more roundabout way on the basis of national interest.

On the other hand, the common law continues to evolve to meet new social needs and the Court of Appeal has recently referred with apparent approval to the “development of a new civil right of privacy”. However, in a later case a differently constituted court refused to deal with the point. It was stated that whether or not there is “a separate cause of action based upon a new tort involving the infringement of privacy” was a “vexed question” which was not necessary for first instance judges to tackle when considering applications for injunctions. This issue has been avoided in a great number of high profile cases which have been described in the media as being about ‘privacy’. It has been suggested that now may be time to directly confront this issue. It has been argued that the potential new tort of privacy will assist both claimant and defendants and their advisors in assessing where they stand when “privacy” issues arise.

There have been occasions where the court has recognised privacy over and above other legal provisions, but this recognition has not been consistent. In the case of Haig v Aitken the trustee in bankruptcy of Jonathan Aitken, ex-Conservative MP and Cabinet member, wished to ‘realize’ valuable papers belonging to Aitken that were personal to him in a variety of ways. The papers included letters to heads of state and to former ministers, and even ‘intimate’ correspondence. Under insolvency law, it was recognised by the court that, because Mr Aitken was a bankrupt, his estate should be transferred to the trustee in bankruptcy for him to ‘realize’ it (i.e. to sell it for the benefit of Mr Aitken’s creditiors). However, the court upheld Mr Aitken’s claim that, given their personal nature, the documents ought not to be sold because they were protected under Article 8 of the Convention.

Under recent case law there have been three diverse views raised in regards to the availability and desirability of a tort of invasion of privacy. Firstly it has been argued that there is no common law tort of invasion of privacy and the courts are prevented from developing such law due to the binding authority of the Court of Appeal. Then again, even before the Human rights Act the courts were slowly developing a tort of invasion of privacy based on breach of confidence. The Court of Appeal did not consider a claim based on breach of confidence in Kaye v Robinson and the point as to whether there was a right of privacy in English Law was explicitly left open in a number of cases. Others claim that there is no tort and no need to develop one because in “the great majority of situations, if not all situations, where the protection of privacy is justified … an action for breach of confidence now will … provide the necessary protection.” This view does involve some expansion of the cause of action for breach of confidence resulting, in part, from the HRA but reflecting pre-existing case law. It has also been argued that a new tort is required and is now available or at least developing, in part at least as a result of the impetus provided by the Human Rights Act.

In March 2002 it seemed that attempts by lawyers to establish a law of privacy on the basis of article 8 of the Human Rights Act, the right to a private life, seemed to have failed due to the competing right to freedom of expression, protected by article 10. As a result of this news the newspapers started celebrating ‘press freedom’ victory. These celebrations were very premature because after Naomi Campbell’s victory over the Mirror newspaper this territory must be fought over all over again

A recent case which looked at invasion of privacy was that of a married footballer (Garry Flitcroft) who said his affair with a lap dancer was a private matter and obtained an injunction to prevent the Sunday people reporting it. At the Court of Appeal Lord Woolf, the Lord Chief Justice, was widely interpreted to indicate that rights to freedom of expression under article 10 of the Human Rights Act clearly outweighed rights to privacy under article 8. 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”

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A person who takes a photograph of another person in a hospital bed, without his knowledge, is not under an ‘obligation of confidence’ to the person whose photograph he has taken. A claim for breach of confidence can only be held in such cases through the imposition of a ‘deemed’ obligation of confidence on the photographer. In the words of Sedley LJ, the law “needs to construct an artificial relationship of confidentiality between intruder and victim” This was also recognised by the Court of Appeal in A v B & C which said that: “A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know what the other person can reasonably expect his privacy to be protected”. A “duty of confidence” like this seems to be indistinguishable from a tortuous duty not to intrude into a person’s privacy. In addition, there have been various cases which are generally accepted as involving invasion of privacy where the ‘private’ information in question is not ‘confidential’. Examples of these types of cases include: a public figure’s personal address; photographs of a well known novelist’s child lying on a hotel beach; information that a woman has left her husband for another woman; and a photograph taken through a window from a public street with a normal camera. This information was available to neighbours, to other users of the beach, to friends and associates or to passers by. However, in each of these cases the media friendly Press Complaints Commission found there to be a breach of the ‘privacy protection’ provision in clause 3 of the code. An extended cause of action for breach of confidence would be of no assistance in any of these situations unless ‘deeming’ were extended to information which is not normally regarded as confidential. A person will be liable for obtaining information which was deemed to be confidential in circumstances in which they were deemed to owe a duty of confidence.

An action for breach of confidence is not available in a situation where a person had simply been made the subject matter of surveillance (by, for example, video surveillance being directed to a private garden) without ‘information’ being gathered. In the Wainwright case the strip searching of the claimants did not involve any infringement of a right of confidence. However, by persuading a person to remove their clothes in circumstances in which there is no legal power to do so involves a clear invasion of that person’s “private life” and it has been suggested that it should receive protection in appropriate cases from the law of tort. It seems that these difficulties will be overcome by the recognition of a specific tort of invasion of privacy. As Sedley LJ put it in Douglas v Hello “What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people who trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.”

(2) Analysing the elements of the potential tort

There has been little discussion of this issue in the English case law. The relatively few ‘privacy’ cases which have gone to trial have been dealt with on conventional ‘breach of confidence’ grounds. The present state of the authorities indicates that there are two possible routes to defining the elements of a tort of invasion of privacy. Some suggest that the new tort could be based on an expanded action for breach of confidence or it could become a new ‘self-standing’ tort. Firstly, in order to provide appropriate protection for generally recognised privacy interests, an expanded ‘breach of confidence based cause of action’ may require some of the following elements: Firstly, the collection of information (or material which is deemed to be information), which is, or which is deemed to be, confidential; Secondly, the breach must be by a person who is or is deemed to be in a relationship of confidence with the claimant (such a relationship being deemed to exist if the person either knows or ought to know that the claimant can reasonably expect his privacy to be protected); and finally the person used, or is deemed to have used, the information to the actual or deemed detriment of the claimant. It seems that the repeated recourse to ‘deeming’ is not in line with the modern law and it may be healthier for the elements of the tort to be defined without reference to legal fictions.

The complications involved in defining the limits of an independent tort of invasion of privacy are notorious. One problem is the range of interests which are said to be covered by the concept of ‘privacy’. In addition to the ‘right to be left alone’, privacy rights have been said to cover matters as diverse as an individual’s dignity or moral integrity, the authorised circulation of portraits, the control of personal information the establishment and development of emotional relationships with others, and the freedom from media intrusion. The wide range of areas in which the right has been called upon has led to scepticism as whether it is helpful to speak of a general ‘right to privacy’ at all. On the other hand, it is very important to distinguish the right to be free from unwarranted state interference and the private law tort of invasion of privacy. The latter clearly has a much narrower range.

(3)The private law tort of invasion of privacy in other jurisdictions

This private law tort of invasion of privacy was first suggested at the end of the nineteenth century in the United States, where it has been extensively analysed and developed in their case law. However, it has been restricted to the four areas summarised in the Restatement of the Law of Torts which states that: “(2) The right of privacy is evaded by: (a) the unreasonable intrusion upon the seclusion of another; (b) the appropriation of the other’s name or likeness; (c) unreasonable publicity given to the other’s private life; (d) publicity that unreasonably places the other in a false light before the public.” This includes a number of torts which serve slightly different purposes. It has been suggested that a new common law tort of invasion of privacy should cover only the first and third of these, i.e. intrusion upon seclusion and unreasonable publicity. The second and fourth are similar to property rights which may require protection of a different type. The Restatement described intrusion upon seclusion in the following terms: “One who intentionally intrudes, physically or otherwise, upon the solitude of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” Publicity given to private life is described as “one who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of privacy, if the matter publicised is of a kind that: (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”

In comparison, the common law in New Zealand has developed a tort of invasion of privacy. The courts wanted to synthesise the first and third parts of the definition in the Restatement. Consequently, it has been suggested that four conditions must be established to prove commission of the tort of breach of privacy: “(1) That the facts which were disclosed were private facts as distinct from public facts; (2) that the disclosure of the private facts was a public disclosure as distinct from a private disclosure; (3) that the facts which were disclosed would be highly offensive and objectionable to a reasonable person of ordinary sensibilities; (4) that any legitimate public interest in the disclosure would be insufficient to override the right to privacy in respect of them.” After careful scrutiny I have found that this formulation of the tort suffers from two shortcomings. Firstly, it only deals with the “public” disclosure of “private” facts. It does not cover invasions of privacy by intrusion where no information is published. Secondly, the fourth element (that of “public interest”) is best regarded as a defence rather than an essential part of the tort.

(4) Proposals for a new tort

In the United Kingdom there have been a number of proposals as to the ‘elements’ of a new tort from official bodies. On 16 March 1993, the National Heritage Committee of the House of Commons published a report on “Privacy and Media intrusions”. It recommended a Protection of Privacy Bill which would define a tort of “infringement of privacy” to cover conduct which included the following: obtaining and/or publishing harmful or embarrassing personal material or photographs; obtaining and/or publishing private information or photographs without the permission of the person concerned; (iii) Publishing inaccurate or misleading personal information; or violating the peace of another by intruding upon him or her, or persistently communicating with him or her.

Secondly, the Calcutt committee on privacy and related matters suggested that “A right to privacy would include protection from: (a) 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.” 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. The first element (‘intrusion’) may take two forms. 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).

In considering the first element (intrusion) the only question is whether or not there has been some ‘observation’ or ‘publication’. The question as to whether the intrusion is into the “private realm” of a person’s life is considered as part of the second element (i.e. ‘into a person’s private life’). When considering the existence of ‘intrusion’ the availability of material in the public domain should be irrelevant. This should be dealt with in relation to the third element (i.e. ‘highly offensive to a reasonable person of ordinary sensibilities’). The third element provides a useful ‘threshold’ which privacy claims must meet. The High Court of Australia have recently described this as being “in many circumstances a useful practical test of what is private.” This test was referred to with approval by the Court of appeal in A v B & C and by Morland J in Campbell v MGN Ltd. It has been suggested that this should be an objective test, for example, what would a reasonable person of ordinary sensibilities feel if they were placed in the same situation as the claimant? This third

Wainwright v Home Office (2001) EWCA Civ 2081, para 57, Mummery LJ

Lord Denning in Re X (a minor) (1975) Fam 47, 58. Also illustrated in Malone v Commissioner of Police (No 2) (1979) Ch 344, 372

(1991) FSR 62.

This is illustrated in, Khorasandjian v Bush (1993) QB 727, 744; and Wainwright v Home Office (2001) paras 100 to 101 (Buxton LJ).

Douglas v Hello (2001) 1 QB 967, 988 (para 73) Brooke LJ.

Opinions differ as to whether this would have made any difference. Lord Scott believed that it would (“Confidentiality”, in J Beatson and Y Cripps, Freedom of Expression and Freedom of Information, Oxford University Press, 2000, p.272) while Lord Bingham said that it would not unless the action for breach of confidence had been substantially extended (Lord Bingham, “Opinion: Should there be a law to protect rights of personal privacy?”, in The Business of Judging, Oxford university Press, 2000, pp.148-149).

Tom Crone, Law and the Media, Focal Press, 2002, page 115

(1997) AC 558

See footnote 7

H (A Healthcare Worker) v Associated Newspapers Ltd (2002) EWCA Civ 195, para 40.

A v B & C (2002) EWCA Civ, para 1 (vi).

For example: A v B & C; Campbell v MGN Ltd (2002) EWHC 499 (QB), para 5.

(2000) 3 All ER 80

See footnote 1

See footnote 3

Lord Browne Wilkinson (558 & 571) and Lord Nolan (582-583) (in R V Khan (1997) AC 558

see footnote 11

As the Court of Appeal said in Av B & C (2002): “The court’s approach … has been modified because under section 6 of the 1998 Act, the court, as a public authority, is required not to act “in a way which is incompatible with a Convention right”. The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.”

For example: Venables v News Group Nespapers Ltd (2001) 2 WLR 1038; Douglas v Hello (2001) 1 QB 967, 988; H (A Healthcare Worker) v Associated Newspapers Ltd (2002) EWCA Civ 195,

Douglas v Hello (2001) QB 967 at 1001 (para 126).

(2002) EWCA Civ 337, para 11 (x).

PCC Complaint dated 4 June 2000, Renate John v Sunday Mirror; this is also illustrated in Mills v News Group Newspapers (2001) EMLR 957 in which Lawrence Collins J said that it “may be somewhat artificial to classify the address of a person as confidential information.” (para 21).

PCC Complaint dated 17 August 2001, Rowling v OK Magazine.

PCC Complaint Dated 11 June 1999, Charters v Sun.

PCC Complaint Dated 6 August 1998, McQuarrie v Scotland on Sunday.

See footnote 1, para 87.

It is important to note that in Wainwright the Court of Appeal accepted that if the incident had taken place after 2 October 2000 the claimants would have had a freestanding HRA claim against the Home Office for breach of Article 8. On the other hand, if those requiring removal of clothes had been private security guards employed by a private body then there would have been no HRA claim at any date. A potential tort of invasion of privacy would avoid such an anomaly.

See footnote 3, at 1001 (para 126)

It is important to note that in April 2003 Michael Douglas and Catherine Zeta-Jones failed in their privacy claim, but they were successful in their action for breach of confidence (with an award of nominal damages under the Data Protection Act). The fundamentals of this case will be discussed further.

This is illustrated in the case of Campbell v MGN Ltd (2002) EWHC 499 (QB). In this case the claimant (Naomi Campbell) decided not to pursue her claim for breach of privacy.

Hugh Tomlinson QC, Privacy and the Media – ‘The Developing Law’, 2002, page 11

Ibid

Warren and Brandeis ‘The Right to Privacy’ (1890) 4 Harvard L Rev 193, p.13

D Feldman, ‘Secrecy, Dignity, or Autonomy? Views of Privacy as a Social Value’ (1994) 47 Current Legal Problems, p.41.

See footnote 33, (Warren and Brandeis, p.195)

A Westin, Privacy and Freedom, (Bodley Head, 1967), p. 116. R Wacks, The Protection of Privacy, (Sweet & Maxwell, 1980), p.84.

X v Iceland (1976) 5 DR 86

For example, Kaye v Robertson (1991) FSR 62.

R Wacks, ‘The Poverty of Privacy’ (1980) 96 LQR 73, p.7

What might be called “the human right to privacy”

Warren and Brandeis ‘The Right to Privacy’ (1890) 4 Harvard L Rev 193, p.19

Restatement of the Law of Torts, 2nd Edition, para 625A ff.

Ibid

Australian Broadcasting Corporation v Lenah Game Meats (2001) HCA 63, paras 120-128 (Gummow and hayne JJ, with whom Gaudron J agreed).

Tucker v News Media Ownership Ltd (1986) 2 NZLR 716; Bradley v Wingnut Films Ltd (1993) 1 NZLR 415; P v D (2000) 2 NZLR 591; and L v G (2002) DC Reg 234.

HC 294-1, paras 48-9; In addition, the committee also recommended that the Bill should include provisions specifying criminal offences resulting from the unauthorised use of invasive technology and harassment. The Committee’s recommendations were not implemented.

Report of the Committee on Privacy and Related Matters (1990) Cm 1102 (The Calcutt report), para 3.8.

Consultation Paper, July 1993

Hugh Tomlinson QC, Privacy and the Media – ‘The Developing Law’, 2002, page 15

Corresponding to the first and third aspects of the tort identified in the Restatement (USA).

Australian Broadcasting Corporation v Lenah Game Meats (2001) HCA 63, para 42 (Gleeson CJ).

(2002) EWCA Civ, para 11 (vii)

(2002) EWHC 499 (QB), at para 40 (1)

P v D (2000) 2 NZLR 591, at 681 element would allow the nature of the intrusion to be taken into account: a reasonable person of ordinary sensibilities may well regard a ‘surreptitious’ intrusion by means of , for example, a photograph taken with a telephoto lens, to be more offensive than a photograph taken with an ordinary camera. The third element would probably exclude from the tort intrusions that are regarded as of a ‘borderline’ nature, such as: a single “observation” of a person sitting in a private setting; the taking of a single non-published photograph; the publication of a trivial item of personal information; the publication of information which is already well known; and the publication of information about a relationship to friends and relatives. These “intrusions” would not be actionable because none of them would be “highly offensive to a reasonable person”. The third element would also provide a ‘filter’ for claims and valuable protection for the media from harassment by unmerited claims by over-sensitive public figures.

(6) Breach of confidence

English law does provide some protection against abuse and unauthorised use of confidential information. It is possible for a breach of confidence to give rise to a claim for an invasion of privacy, for example, the taking of unauthorized photographs or films of a person or his home. This is based on a ‘confidential relationship’ as stated by the court in the Spycatcher case. In this case it was held that a breach of an obligation not to take photographs may allow a claimant to bring action for breach of confidence. In Shelley Films v Rex Features, the defendant was prevented from using photographs taken on a film-set that had signs prohibiting photography. Furthermore, in Creation Records v News Group Newspapers Limited, a photographer from The Sun newspaper published photographs taken during a photo shoot for the cover of a new record by the rock group Oasis. Even though the photographer was lawfully at the scene, the court still found that the security measures at the shot made it arguable it was intended to be confidential. Therefore an injunction was granted preventing the publication of the photographs. In contrast, in other areas it has been a difficult task for the courts to balance the total protection of privacy with the public interest. In the recent past, authors of books containing confidential government material have faced litigation by the government in order to prevent publication of that material and there was also the ‘possibility of prosecution under the Official Secrets Act 1989’.

In its original decision in the Spycatcher case, the House of Lords upheld an injunction against several newspapers who wanted to publish serializations of Spycatcher immediately after its publication in the United States. In its subsequent decision the House of Lords decided not to grant a permanent injunction. It seems very unlikely that the House of Lords preferred to safeguard free speech over maintaining confidentiality, ‘since this decision was mainly based on the fact that the confidentiality had already been broken and no such duty was owed by the third parties’. Thus, the House of Lords adopted a more practical standpoint and found that a permanent injunction in the UK was depicted as being futile in view of the fact that the material had already been published. Nevertheless the court stated that: “…the right to personal privacy is clearly one which the law should in this field seek to protect”. They also noted that an injunction would have been granted in relation to the publication if it had first been made in the UK: “…there is no room for discrimination between secrets of greater or lesser importance, nor any room for close examination of the precise manner in which revelation of any particular matter may prejudice the national interest.”

In the case of A-G v Punch Ltd (2001), the court looked at confidentiality in relation to David Shayler. The Court of Appeal decided to grant the appeal of Punch and its editor, James Steen, against their convictions for contempt of court since, amongst other things, it could not be shown that the disclosure by them of information supplied by Shayler defeated, in whole or in part, the function of the court in granting the injunction. In contrast, during 2001 Dame Stella Rimington, who had been Director General for MI5 for four years, published her memoirs Open Secret, which contained confidential government material. Although the Home Office stated that the government ‘regretted’ Rimington’s decision to publish the book, it still said that for the most part it would not resist its publication. It seems that this was because the memoirs were edited to appease both MI5 and the Government itself.

The problem faced by the court of balancing the total protection of privacy with other public interests is expected to continue into the future following the incorporation of the conflicting rights to privacy in Article 8 and freedom of expression under Article 10. This could have been the case in September 2000 where the celebrity couple, David and Victoria Beckham, sued Andrew Morton in relation to his ‘unauthorised biography’. This biography revealed intimate details about their personal and professional lives. Furthermore, Andrew Morton had gathered the information from a former bodyguard who had already signed a confidentiality clause on commencing employment with the Beckhams. However, this matter was settled out of court on the basis that 200 offending words were deleted from the manuscript. On the other hand, if the case did proceed to trial, then the court would have had to weigh Andrew Morton’s right to express himself under Article 10 with the Beckham’s right to privacy under Article 8.

(7) Which types of activities or information constitute “Private Life”?

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; sexual activity, even where a number of people are present and the activity is video taped; and a photograph taken during an interview at an army centre (but not a photograph taken during a political demonstration).

Furthermore, there are ‘privacy codes’ which apply to the press and to broadcasters. 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 ITC and BSC 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”.

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.

Is there a tort of invasion of privacy?

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