Privacy and Injunctions - Evidence - Parliament

Ministry of Justice and Department for Culture, Media and Sport—Written evidence
Protection of privacy prior to the coming into force of the Human Rights Act 1998
5. Prior to the entry into force of the Human Rights Act, a singular right to privacy was
not recognised in the English common law. The absence of such a right was
confirmed by the Court of Appeal in Kaye v Robertson 294 . Bingham LJ said that the
defendants’ conduct towards the claimant was a “monstrous invasion of privacy” and
it was this which underlay the claimant’s complaint but it alone, however gross, did
not entitle him to any relief in English law. Leggatt LJ said that the right of privacy
“had so long been disregarded here that it can only be recognised by the legislature.”
6. When seeking to protect their privacy, claimants could rely on the protection
afforded by other existing causes of action and legislative provisions. For example:
• Breach of confidence (this has long offered protection from publication or other
kinds of misuse of information on the basis that to disclose it would be a breach of
confidentiality. For example, in Prince Albert v Strange 295 an injunction was granted to
prevent the disclosure of private etchings; and details of sex lives have also been held
to be confidential 296 ).
• Trespass (a tort which protects legal occupiers whose land or property is interfered
with).
• Nuisance (persistent watching, telephoning etc of an individual can be a nuisance).
• Defamation (there can be a remedy in relation to the publication of private
information where the defamation action concerns information which is discreditable
and personal (e.g. sexual or financial). However, there are limitations to the extent
to which defamation can be a remedy for protecting privacy: since justification is a
complete defence, the publication of true but private facts is not actionable. Also,
not all private information will be defamatory so there may be no cause of action in
defamation).
• Malicious falsehood (where the information published is false and published with
malice).
• The Protection from Harassment Act 1997 (which protects against conduct causing
alarm, harassment or distress).
Reviews relating to privacy law
7. A number of reviews took place in the years preceding the introduction of the
Human Rights Act which considered issues relating to privacy and press regulation.
These included the Younger report (1972) 297 , which focused primarily on the impact
on privacy of technological developments such as surveillance devices; the McGregor
report (1977) 298 , which recommended that the Press Council (which was at that time
responsible for press self-regulation) should apply more stringent standards in
relation to complaints about invasions of privacy by the press; the Lindop report
294 (1990) Times, 21 March (Court of Appeal)
295 (1849) 2 De Gex & Sm 652.
296 See for example, Stephens v Avery [1988] 1 Ch 449.
297 Report of the Committee on Privacy (Cmnd 5012, 1972)
298 Fund Report of the Royal Commission on the Press (Cmnd 6810, 1977)
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