Overlooked - Liberty

Overlooked: Surveillance and personal privacy in modern Britain 81
Other Ways to Protect Privacy
It may be possible to utilise other causes of action to protect privacy in certain situations. A
complainant might be able to bring claims in public or private nuisance (the former perhaps only in
very limited circumstances) or for trespass to land and/or to the person. Malicious falsehood and
defamation might also be relevant in redressing invasions of privacy, however, neither will be
appropriate if information that is revealed about the complainant is not false.
Where information that is revealed through an invasion of privacy is false, but not defamatory or
injurious, how could a claimant seek redress If it was not possible to institute “false privacy” claims
in this situation, a complainant would have less protection if the information revealed was false, than
if it were true.
A Stand-alone Tort of Breach of Privacy
The protection of privacy in the UK has come about largely through the development of case law,
rather than by legislative or regulatory means. It is helpful to consider how this protection has
evolved by analysis of the relevant case law in this area.
In Kaye v Robertson and Another 154 the Court of Appeal confirmed that in English law there was
at this time (prior to the HRA) no right to privacy, and hence no right of action for breach of privacy.
In this case a famous actor sought to prevent The Sunday Sport from publishing an “interview”
and photographs taken while he was recovering from a road accident in intensive care, after a
journalist and photographer gained access to his hospital room. He had not been fit to consent,
and had not consented, to the interview. Having no specific right to privacy, Kaye could rely only
on claims for malicious falsehood and passing off. Ruefully, the Court of Appeal perceived their illfitting
nature and commented that it was now desirable for Parliament to consider how to protect
an individual’s right to privacy.
Ten years later in Secretary of State for Home Department v Wainwright 155 , the Court of Appeal and
House of Lords confirmed the absence of a specific tort of invasion of privacy and reiterated that it
was for Parliament, and not the courts, to delineate the “proper ambit” of protection in this area. The
case concerned a mother and her son who were subjected to a humiliating strip search when they
went to visit a member of their family in prison. They both experienced emotional distress and the
son suffered from post traumatic stress disorder. The incident took place before the HRA had come
into force. This meant that the Wainwrights could not rely on the provisions of the HRA that would
have allowed them to bring proceedings in the domestic courts against the Home Office in respect
of the breach of their Convention right to privacy. The matter progressed to the House of Lords
where it was reiterated that there existed no general cause of action in English law for an invasion
of privacy, capable of providing the Wainwrights with a remedy under English law. The Wainwrights
eventually succeeded in Strasbourg, where the ECtHR held in September 2006 156 that there had
been a violation of Article 8 (privacy) and Article 13 (effective remedy).
154
[1991] FSR 62.
155
[2002] QB 1334 (CA) and [2004] 2 AC 406 (HL).
156
Application No. 12350/04.