A COMMON LAW TORT OF PRIVACY?

• Date: 01 December 2015
• Author: Paula GILIKER BA, MA, BCL (Oxon), PhD (Cantab); Professor of Comparative Law, University of Bristol.
• Published date: 01 December 2015

The Challenges Of Developing A Human Rights Tort

This article will examine the evolution of a new tort — that of misuse of private information — in the courts of england and wales. Stimulated by the introduction of the uk human rights act 1998 (c 42), the english courts are moving towards recognition of a distinct tort which is capable of responding to advances in technology which give rise to increased possibilities for intrusion into the personal lives of private individuals. While such a development may seem preferable to the previous practice of “shoehorning” claims into the existing action for breach of confidence, this article will consider, with reference to recent case law in new zealand and the canadian province of ontario, the challenges which recognition of torts protecting privacy rights present to traditional common law reasoning. In particular, it will examine the extent to which the constitutional framework in each jurisdiction, which provides for protection of a right to privacy and freedom of expression, has led to different responses. Developing a privacy tort is no easy task, both in defining the interest protected and determining its scope and appropriate remedial framework. In analysing how the courts have addressed these issues, the article will consider whether incremental case law development or legislative intervention is more likely to lead to the coherent evolution of this area of law.

1 The interests protected by the law of tort vary considerably in character, from injury to the person to protection against wrongful harm to one's reputation. Yet, as society advances and technology permits more and more intrusion into our personal lives, the means by which harm may be perpetrated against an individual's well-being continue to evolve. Canadian judge, Sharpe JA, commented recently that “[i]nternet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information”,1 but that this must be balanced against the invasions they permit into our personal lives which “cry out for a

remedy”.2 Such concerns are, in fact, far from new. In the seminal article of Warren and Brandeis in 1890, the authors commented on the fact that “[i]nstantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life”.3 Winfield in 1931 further argued that the social exigencies of the day justified the creation of a tort of invasion of personal privacy, either by the courts or (failing that) the Legislature.4 Winfield warned, however, of the dangers of a “sweeping” tort and of the need to identify with some precision a legal framework determining when liability would arise. He identified a number of difficulties which continue to this day. First, how to define a new tort which seeks to protect an interest as imprecise as “privacy”,5 which has been variably described as one protecting our dignity, autonomy or self-esteem,6 our right to identity, personal development and to establish and develop relationships with other human beings,7 or simply the “right to be let alone”?8 Penk and Tobin correctly describe privacy as “multidimensional” in that it may be seen as a right, a value, or a psychological state with links to human dignity and autonomy.9 Secondly, how to provide criteria such that the tort may be applied with some degree of certainty and predictability? A third question also arises, however. In a modern liberal democracy, freedom of expression (and, in particular, freedom of the press) are perceived as values worthy of protection. On this basis, the right to freedom of expression is expressly recognised in a number of constitutional instruments, for example, under the First Amendment to the US Constitution,10 Art 10 of the European Convention on Human Rights11 (“ECHR”), s 14 of the New Zealand Bill of Rights Act 199012 (“Bill of Rights Act”), and s 2 of the Canadian Charter of Rights and Freedoms13 (“Canadian Charter”). The challenge, therefore, for a modern privacy tort is to reach an acceptable balance between protecting the right to privacy and that of the public to know. As seen in the tort of defamation, this inevitably gives rise to difficult value judgments with which both politicians and judges may be reluctant to become openly involved.14

2 In focusing on a particular evolution in the law of tort — the creation of new torts which seek to protect victims against wrongful invasions into their private lives — this article will examine the challenges this has presented to the traditional tort law framework. It will consider three common law jurisdictions where the courts have recently acknowledged to some extent a tort (or torts) protecting privacy rights: England and Wales, New Zealand and the Canadian province of Ontario. These are also jurisdictions in which rights-based instruments such as the ECHR, the Bill of Rights Act, the International Covenant on Civil and Political Rights,15 the United Nations Convention on the Rights of the Child16 and the Canadian Charter have influenced the shape of these new forms of tort law. In critically analysing recent developments, this article will consider how the courts have responded to the challenges of integrating human rights principles into the private law of tort and whether the current legal position indicates that, despite the reluctance of politicians to intervene, this is an area of law in which legislative intervention is not only desirable, but necessary.

I. A tort of privacy? The response of England and Wales

3 Despite the introduction of the UK Human Rights Act 199817 (“the 1998 Act”), the courts of England and Wales have continued to reject the creation of a general tort of invasion of privacy. Lord Hoffmann in Wainwright v Home Office18 was of the view that any perceived gaps in the law could (and should) be filled by judicious development of existing causes of action such as breach of confidence or, following the introduction of the 1998 Act, with claims under the Act for breach of Art 8 of the ECHR (right to a private life).19 There was, in his view, no need to “distort” the principles of the common law.20 In so doing, the House of Lords rejected any analogy with developments in US law and tellingly quoted from Sir Robert Megarry V-C in Malone v Metropolitan Police Commissioner:21“[I]t is no function of the courts to legislate in a new field. The extension of the existing laws and principles is one thing, the creation of an altogether new right is another.”22

4 The House of Lords in Campbell v Mirror Group Newspapers Ltd23 (“Campbell”) in 2004 confirmed that the approach taken by English law would be to acknowledge that, following the 1998 Act, there has been a “shift in the centre of gravity” of the action for breach of confidence.24 No new tort would be created, but the action for breach of confidence would be extended to include not only the divulgence of confidential information but also the unjustified publication of private information: in this case, a series of articles and photographs of supermodel Naomi Campbell detailing and showing her attendance at meetings of Narcotics Anonymous. In so doing, the House of Lords accepted that an action could be brought even where there was no pre-existing relationship of confidence between the individual and the

party obtaining the information.25 This was, however, more than a mere extension of an existing cause of action. In OBG Ltd v Allan,26 Lord Nicholls recognised that two versions of breach of confidence now existed: the traditional action protecting secret/confidential information; and the new action which sought to protect a different interest: that of privacy.27

5 The court also took a further step in Campbell. Influenced by the argument that the court as a “public authority” under s 6(3) of the 1998 Act should seek to develop private law in a convention-compatible way,28 this new action was found to have absorbed the rights protected by Arts 8 and 10 of the ECHR.29 Buxton LJ in the later case of McKennitt v Ash30 (“McKennitt”) declared that to find the rules of what he termed the new “tort of breach of confidence”, the courts should look in the jurisprudence of these articles which were not merely of persuasive or parallel effect but provided the very content of the domestic tort that the English court had to enforce.31

6 From these cases, a new methodology can be identified whereby liability is determined by asking two questions:

(a) Is there a reasonable expectation of privacy? This will be shown if the information is private in the sense that it is protected by Art 8 of the ECHR.

(b) Where Art 8 is engaged, is interference with this right justified in all the circumstances by Art 10 of the ECHR (freedom of expression)?32

In determining whether a reasonable expectation of privacy exists, a number of factors may be relevant, for example, the attributes of the claimant; the nature of the activity in which the claimant was engaged; the place at which it was happening; the nature and purpose of the intrusion; the absence of consent and whether it was known, or could be inferred; and the effect on the claimant and the circumstances in which (and the purposes for which) the information came into the hands of the publisher.33 The court will take account of all the circumstances of the case and, indeed, in many cases, the information in question may be obviously private, for example, information relating to health (as in Campbell), personal relationships (as in McKennitt) or financial matters.34 At stage two, the court will have to ask whether the intrusion into the claimant's privacy is proportionate to the public interest alleged to be served by it.35 The courts take the view that Arts 8 and 10 are of equal weight.36 On this basis, where the values inherent within the two Articles are in conflict, an intense focus on the comparative importance of the...