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<strong>Overlooked</strong>: 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.
82 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain Breach of Confidence: the Protection of Privacy through the Back Door While the courts have generally been unwilling to recognise a new tort of invasion of privacy, they have been prepared to carve out some protection by utilising the traditional breach of confidence action. It is helpful to consider the three elements of this action, as established in Coco v AN Clark (Engineers) Ltd 157 . (a) The information subject to the alleged breach of confidence must have the necessary quality of confidence; (b) The information must have been imparted in circumstances importing an obligation of confidence; and (c) There must be an unauthorised disclosure or use of the information. There must be some existing information upon which to mount an action for breach of confidence. Often this information can be extremely valuable. One of the more memorable cases to be heard soon after the coming into force of the HRA was the application for an interim injunction in Douglas and others v Hello! Ltd 158 . The claimants, a well-known celebrity couple, made an agreement with OK! magazine to publish carefully selected pictures of their forthcoming wedding and reception. At the event photography, other than by the official OK! magazine photographer, was strictly prohibited. The claimants subsequently discovered that, in spite of this precaution, surreptitiously obtained photos of the wedding and reception were to appear in Hello!. The claimants applied for and were granted an interim injunction on the basis that publishing the photos would be a breach of confidence. The defendants appealed, and it is here that we can see how the Court of Appeal drew on the traditional action for breach of confidence to address privacy concerns. Although the injunction was lifted, the Court of Appeal judges, with differing degrees of emphasis, suggested that English law would now recognise and protect where appropriate a right of privacy. However, the majority were concerned to locate the available protection in the equitable doctrine of breach of confidence. It was already settled law that, in relation to the second of the requirements for breach of confidence, it was no longer necessary for there to be an express confidential relationship between confider and confidant. A duty of confidence will arise where a person is in receipt of information that he fairly and reasonably knows or ought to know is confidential 159 . The Court of Appeal advanced further here. It stated that, even where there is no relationship or deemed relationship, the law should nonetheless protect those who have suffered an unwarranted intrusion into their private lives, and not only those who have suffered an abuse of trust. The concept of privacy was for the first time distinguished as a legal concept capable of affording protection in respect of an individual’s inherent autonomy. However, the reliance on the law of confidence was confusing and unhelpful. That the confidential or deemed confidential relationship could now be dispensed with formed the basis of the justification for the imposition of an indefinite injunction against the defendant and the 157 [1969] RPC 41. 158 [2001] QB 967. 159 Attorney General v Guardian Newspapers Ltd. (No.2) [1990] 1 AC 109
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Overlooked - Liberty

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