It is a matter of record there is no such thing as a right to privacy recognised by English law[1] Privacy is a fundamental right of all human beings. It promotes human dignity and other values such as freedom of association

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It is a matter of record there is no such thing as a right to privacy recognised by English law1

Privacy is a fundamental right of all human beings. It promotes human dignity and other values such as freedom of association and freedom of speech.

The concept of privacy is recognised in one form or another in all legal systems. However the protection and the development of this concept vary from society to society. The need for privacy has long extended beyond the commercial context, and now applies to a wide range of circumstance, including the family and home.

The desire for privacy and protection from invasion by the state, institutions as well as other individuals has long been a problem within the UK legal system. As British society is getting more and more complex, our privacy needs are growing. This means that the scope of our laws is stretching to accommodate this growth.

Privacy is the fine line between a person's rights to lead his own life without intrusion, and the right for the surrounding public to be made aware of facts and circumstances which may have an effect on them, whether it is good or bad. This line is constantly moving and its boundaries are constantly stretched, not least by the difficulty that the courts have had in handling this issue2.

The issue of privacy is in every part of law. Therefore I have chosen to narrow it down and trace the development of privacy law with regards to role models, and the press. I will analyse the development prior to the Human Rights Act 19983, discuss the impact of the HRA 1998, and also assess the implications of the Press Complaints Commission4.

PRE HUMAN RIGHTS ACT 1998

Before going any further, it should be noted that there is no such thing as a "right to privacy" within the English legal system. This is clear from the speech of Glidewell LJ in Kaye v Robinson. It has never been defined by parliament. What we seem to have rather is protection where privacy has been breached, via other doctrines, namely breach of confidence and trespass. We have seen the courts using various instruments to accommodate the right to privacy. Prior to the Human Rights Act 1998, the courts used the tort of 'breach of confidence' to give remedy and protect privacy. Since the HRA 1998, this doctrine has been extended to accommodate the requirements of Article 8 and Article 10. However the roots of the development of a 'right to privacy' still lie in this.

Looking at various statutes and case laws, it can be seen that the UK has long sought to protect individual privacy from being invaded. For example The Justices of Peace Act 1361 in England provided for the arrest of peeping toms and eavesdroppers5. However the best historical evidence comes from the writing of parliamentarian William Pitt6 who says;

"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow though it; the storms may enter; the rain may enter - but the King of England cannot enter; all his forces dare not cross the threshold of the ruined tenement".

This clearly demonstrates that the UK does recognise such a thing as privacy.

In its simplest form, a breach of confidence arises when sensitive information comes to the knowledge of a person; in circumstances where it would be unfair where that information to be disclosed to others7

The law of confidence has attracted judicial intervention over the years, but in particular the development of confidence outside of commercial information has been slow.

The early case of Prince Albert v Strange8 was one of the first to see the application of breach of confidence. In this case, private etchings were made for Prince Albert and Queen Victoria, which were copied without authorisation with the intention of publishing. The courts held that this was a situation where the parties were in a position of trust and granted an injunction, as the etchings were obtained in breach of confidence. This in essence marks the beginning of the development of the breach of confidence. The court's intervention in this case extended the application of breach of confidence to all situations where a breach of trust, confidence or contract has led to the misuse of private information, outside of the commercial context and even where there was no financial detriment to the confider.

However a century later, in Argyll v Argyll9 the court intervened again to grant an injunction to prevent the revelation of a legal marital confidence, thus demonstrating that personal information is covered. This case has very recently been developed in light of case of A v B & C (which will be discussed later).

The later case of Coco v Clark10 identified three necessary elements which were needed for a successful claim in breach of confidence. The first was that the information for which protection is sought must have the necessary quality of confidence. This means that the information cannot be something that is already public property and public knowledge. Secondly, it must have been obtained in circumstances that imported an obligation of confidence, and thirdly it must be used in an unauthorised way to the detriment of the person who communicated the information. The elements of Coco v Clark were used in subsequent cases to identify breaches of confidence.

In Stephans v Avery11, a case concerning information communicated within a close friendship, it was held that it was not necessary to identify a formal relationship between the parties. This suggested that that the confidential nature of the information was the most important factor. This case also demonstrated that a newspaper, which was not party to an original relationship, but was directly involved, i.e. approached by one of the parties, could have obligations associated with a relationship of trust imposed upon it.
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The 'Spycatcher' case12 took this a step further and made it clear that if the editor had merely acquired the information, they can be held to be under the same duty of confidence if they are aware that the information is confidential.

However the case of Stephans v Avery also provided a defence to breach of confidence. It was held in this case that, where the disclosure of information included matters "in the public interest", the courts should not apply the principle of breach of confidence. Therefore the press as it stands can trump the duty of ...

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