Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 101
courts. Further the Government considers that any legislation would deem unlawful an invasion of
privacy that cannot be justified in the public interest, something which is already a part of the PCC
Code. It finds the system of self-regulation an attractive one, observing that court proceedings may
further publicise and exacerbate the harm of an invasion of privacy.
Restatement or Recognition of a new Cause of Action
The courts have inched ever closer to recognising the invasion of privacy as a cause of action in its
own right. This has gone as far as recategorising the breach of confidence action – technically an
equitable action – as the misuse of private information where it relates to the alleged disclosure of
private information. The “new” cause of action exists, although in its inchoate state it might be
described as unstable. It has been held by the Court of Appeal that it is not a tort. Recognising the
invasion of privacy as a separate cause of action might not be too great a leap of logic for the courts.
In fact it might be bizarre at this stage not to recognise it as such. Judicial thinking has manoeuvred
itself into a position that demands some form of resolution to the contortion that is now breach of
confidence. The action has been rendered neither confidence nor privacy.
Recognition or restatement could be equally effective, perhaps more so, as legislation. A new cause
of action has been suggested 206 as one that might consist of the following elements which, if met,
would give rise to an action for breach of privacy, namely:
(a) an intrusion
(b) into private life
(c) which would be regarded as highly offensive to a person of reasonable sensibilities.
The intrusion must be unwarranted, or unable to be justified. The “highly offensive” test would
ensure that only meritorious claims would be pursued in the courts. One possible difficulty with the
above is that the element of objective reasonableness required in (c) will be in some way tainted by
the subjectivity arising from the need to place oneself in the shoes of the complainant. But it is clear
that privacy is by its nature a notion that is bound to what is personal and subjective.
Conversely, the courts may prefer to maintain their position, albeit now a tenuous one, on the
information based relationship between privacy and confidence. Even the courts have recognised
the mismatch between the two. Lord Nicholls in Campbell stated “the description of the information
as ‘confidential’ is not altogether comfortable. Information about an individual’s private life would not,
in ordinary usage, be called ‘confidential’. The more natural description today is that such
information is private’”. Considerable effort has been invested in the subsuming of privacy into the
breach of confidence action and it would be surprising if the courts recanted completely the
complex arguments, structurally difficult though they may be, that hold the two concepts together.
It may, therefore, require Parliament to pick up a new broom, and sweep clean. However, for
Parliament to sort out the mess would require an enactment to restore the law of confidence, unless
the House of Lords finds a way to rescue it.
Reform of Regulation
Regulators have a unique role to play in the protection of both media freedom and privacy. Unlike
recourse to the courts, regulatory resolution has the potential to be less adversarial, cheaper and
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See “Privacy and the Media: The Developing Law”, Matrix Chambers, 2002.