Privacy in English law
Encyclopedia
Privacy in English law is a rapidly developing area of English law
that considers in what situations an individual has a legal right to informational privacy, that is to say the protection of personal (or private) information from misuse or unauthorised disclosure. Privacy law is distinct from those laws such as trespass
or assault
that are designed to protect physical privacy. Such laws are generally considered as part of criminal law
or the law of tort. Historically, English common law
has recognised no general right
or tort
of privacy, and was offered only limited protection through the doctrine of breach of confidence
and a "piecemeal" collection of related legislation on topics like harassment
and data protection.
The introduction of the Human Rights Act 1998
incorporated into English law the European Convention on Human Rights
. Article 8.1 of the ECHR provided an explicit right to respect for a private life for the first time within English law. The Convention also requires the judiciary to "have regard" to the Convention in developing the common law.
concluded that: "nowhere have we found a wholly satisfactory statutory definition of privacy".
. This point was reaffirmed when the House of Lords ruled in Home Office v Wainwright (a case involving a strip search undertaken on the plaintiff Mary Wainwright while visiting Armley prison). It has also been stated that the European Convention on Human Rights does not require the development of an independent tort of privacy. In the absence of a common law right to privacy in English law torts such as the equitable doctrine breach of confidence, torts linked to the intentional infliction of harm to the person and public law torts relating to the use of police powers have been used to fill a lacuna in the law. The judiciary has developed the law in an incremental fashion and have resisted the opportunity to create a new tort.
's case against The People
Newspaper was one of the first celebrity privacy cases. The media referred to the case as a "watershed". The disc jockey sued after the newspaper printed nude photographs of her taken while on her honeymoon. However the case was settled out of court and so did not establish a precedent. The decision was seen as discrediting the Press Complaints Commission
The expansion of the doctrine of breach of confidence under the Human Rights Act
began with the Douglas v Hello!
decision. Section 6 of the Human Rights Act requires English courts to give effect to the rights in the Convention when developing the common law. There is no need to show a pre-existing relationship of confidence where private information is involved and the courts have recognised that the publication of private material represents a detriment in itself. The Human Rights act has horizontal effect in disputes between private individuals meaning that the Human Rights Act is just as applicable as if one party had been a public body. Breach of confidence now extends to private information (regardless of whether it is confidential) so as to give effect to Article 8 of the European Convention on Human Rights. Before this breach of confidence afforded "umbrella protection" to both personal and non-personal information.
gives enough weight to freedom of the press and whether intervention by Parliament
would be beneficial. The editor of the satirical magazine Private Eye Ian Hislop
has argued against the development of English privacy law. He told BBC Panorama: "You don't have to prove it [an allegation] isn't true, you just have to prove that it's private by your definition. And in some of the cases the definition of privacy is pretty weak." However, Liberal Democrat
politician Mark Oaten
has stated that the press were right to expose details of his private life:
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
that considers in what situations an individual has a legal right to informational privacy, that is to say the protection of personal (or private) information from misuse or unauthorised disclosure. Privacy law is distinct from those laws such as trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
or assault
Assault
In law, assault is a crime causing a victim to fear violence. The term is often confused with battery, which involves physical contact. The specific meaning of assault varies between countries, but can refer to an act that causes another to apprehend immediate and personal violence, or in the more...
that are designed to protect physical privacy. Such laws are generally considered as part of criminal law
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
or the law of tort. Historically, English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
has recognised no general right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
or tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of privacy, and was offered only limited protection through the doctrine of breach of confidence
Breach of confidence
The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of...
and a "piecemeal" collection of related legislation on topics like harassment
Harassment
Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behaviour intended to disturb or upset, and it is characteristically repetitive. In the legal sense, it is intentional behaviour which is found threatening or disturbing...
and data protection.
The introduction of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
incorporated into English law the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
. Article 8.1 of the ECHR provided an explicit right to respect for a private life for the first time within English law. The Convention also requires the judiciary to "have regard" to the Convention in developing the common law.
Definition
The earliest definition of privacy in English law was given by Judge Cooley who defined privacy as "the right to be left alone". In 1972 the Younger Committee, an inquiry into privacy stated that the term could not be defined satisfactorily. Again in 1990 the Calcutt CommitteeDavid Calcutt
Sir David Charles Calcutt QC was an eminent barrister and public servant, knighted in 1991. He was the Master of Magdalene College, Cambridge from 1985 until 1994. He was also responsible for the creation of the Press Complaints Commission.-References:...
concluded that: "nowhere have we found a wholly satisfactory statutory definition of privacy".
Common law
There is currently no freestanding right to privacy at common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. This point was reaffirmed when the House of Lords ruled in Home Office v Wainwright (a case involving a strip search undertaken on the plaintiff Mary Wainwright while visiting Armley prison). It has also been stated that the European Convention on Human Rights does not require the development of an independent tort of privacy. In the absence of a common law right to privacy in English law torts such as the equitable doctrine breach of confidence, torts linked to the intentional infliction of harm to the person and public law torts relating to the use of police powers have been used to fill a lacuna in the law. The judiciary has developed the law in an incremental fashion and have resisted the opportunity to create a new tort.
Expansion of privacy laws
British radio DJ Sara CoxSara Cox
Sara Cox , known as "Coxy", is an English TV presenter and radio DJ, most well known for presenting the breakfast show on BBC Radio 1 between 2000 and 2003...
's case against The People
The People
The People, previously known as the Sunday People, is a British tabloid Sunday-only newspaper. The paper was founded on 16 October 1881.It is published by the Trinity Mirror Group.In July 2011 it had an average daily circulation of 806,544....
Newspaper was one of the first celebrity privacy cases. The media referred to the case as a "watershed". The disc jockey sued after the newspaper printed nude photographs of her taken while on her honeymoon. However the case was settled out of court and so did not establish a precedent. The decision was seen as discrediting the Press Complaints Commission
Press Complaints Commission
The Press Complaints Commission is a voluntary regulatory body for British printed newspapers and magazines, consisting of representatives of the major publishers. The PCC is funded by the annual levy it charges newspapers and magazines...
The expansion of the doctrine of breach of confidence under the Human Rights Act
Human Rights Act
A human rights act is a statute that sets out individual rights and freedoms under the law. Many jurisdictions have bills of rights enshrined into law and called the "Human Rights Act". This naming convention is commonly used in Commonwealth nations...
began with the Douglas v Hello!
Douglas v Hello!
Douglas v Hello! Ltd [2005] was a series of cases in which Michael Douglas and Catherine Zeta Jones challenged unauthorized photos of their wedding...
decision. Section 6 of the Human Rights Act requires English courts to give effect to the rights in the Convention when developing the common law. There is no need to show a pre-existing relationship of confidence where private information is involved and the courts have recognised that the publication of private material represents a detriment in itself. The Human Rights act has horizontal effect in disputes between private individuals meaning that the Human Rights Act is just as applicable as if one party had been a public body. Breach of confidence now extends to private information (regardless of whether it is confidential) so as to give effect to Article 8 of the European Convention on Human Rights. Before this breach of confidence afforded "umbrella protection" to both personal and non-personal information.
ECHR challenge
Following Max Mosley's successful action against the News of the World Newspaper for publishing details of his private life, he announced that he would challenge English law's implementation of the Article 8 right to privacy guaranteed when the Human Rights Act implemented the European Convention on Human Rights into English law. In this ruling the European Court of Human Rights will be asked to rule on the issue of "prior notification". This would require journalists to approach the subject of any investigation and inform them of the details of any allegations made about them, therefore allowing an injunction to be claimed.Debate
The increasing protections afforded to the private lives of individuals has sparked debate as to whether English lawEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
gives enough weight to freedom of the press and whether intervention by Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
would be beneficial. The editor of the satirical magazine Private Eye Ian Hislop
Ian Hislop
Ian David Hislop is a British journalist, satirist, comedian, writer, broadcaster and editor of the satirical magazine Private Eye...
has argued against the development of English privacy law. He told BBC Panorama: "You don't have to prove it [an allegation] isn't true, you just have to prove that it's private by your definition. And in some of the cases the definition of privacy is pretty weak." However, Liberal Democrat
Liberal Democrats
The Liberal Democrats are a social liberal political party in the United Kingdom which supports constitutional and electoral reform, progressive taxation, wealth taxation, human rights laws, cultural liberalism, banking reform and civil liberties .The party was formed in 1988 by a merger of the...
politician Mark Oaten
Mark Oaten
Mark Oaten is a former British Liberal Democrat politician. He served as the Member of Parliament for Winchester from 1997 to 2010, and was his party's Home Affairs spokesperson from 2003 to 2006...
has stated that the press were right to expose details of his private life:
- "I concluded that however awful it may be, it's better to have a press which can expose MPs' private lives because it means we have a free press… it means we can expose corruption." Max MosleyMax MosleyMax Rufus Mosley is the former president of the Fédération Internationale de l'Automobile , a non-profit association that represents the interests of motoring organisations and car users worldwide...
has argued for the further advancement of the law whereas the editor of the Daily MailDaily MailThe Daily Mail is a British daily middle-market tabloid newspaper owned by the Daily Mail and General Trust. First published in 1896 by Lord Northcliffe, it is the United Kingdom's second biggest-selling daily newspaper after The Sun. Its sister paper The Mail on Sunday was launched in 1982...
newspaper Paul DacrePaul DacrePaul Michael Dacre is a British journalist and current editor of the British newspaper the Daily Mail. He is also editor in chief of the Mail group titles, which also includes The Mail on Sunday. He is also a director of the Daily Mail and General Trust plc and was a member of the Press Complaints...
has accused Mr Justice Eady, the judge in the Mosley case, of bringing in a privacy law by the back door.
Key cases
- Prince Albert v StrangePrince Albert v StrangePrince Albert v Strange was a court decision made by the High Court of Chancery in 1849, and began the development of confidence law in England. The court awarded Prince Albert an injunction, restraining Strange from publishing a catalogue describing Prince Albert’s etchings...
- A v. B plcA v. B plcA v. B plc is a case in English law in which a Premiership footballer sought an injunction to prevent a Sunday newspaper from publishing details of his extra marital affair. The Court of Appeal granted a temporary injunction against publication...
- Bernstein of Leigh v. Skyviews & General LtdBernstein of Leigh v. Skyviews & General LtdBernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479 is a case in English law in which a plaintiff attempted to sue for trespass when aerial photographs were taken of his property...
- Douglas v Hello!Douglas v Hello!Douglas v Hello! Ltd [2005] was a series of cases in which Michael Douglas and Catherine Zeta Jones challenged unauthorized photos of their wedding...
- Kaye v. Robertson
- Mosley v News Group Newspapers Limited
- McKennitt v AshMcKennitt v AshMcKennitt v Ash is an English legal case in which Loreena McKennitt, a Canadian folk singer, sued in England to prevent publication of extracts of a book written by a former friend on the grounds of privacy...
- Campbell v Mirror Group Newspapers Ltd
- Wainwright v Home Office
- Theakston v Mirror Group Newspapers LtdTheakston v Mirror Group Newspapers LtdTheakston v Mirror Group Newspapers Ltd [2002] EWHC 137 was a High Court judgment in which British television presenter Jamie Theakston attempted to injunct the Sunday People from publishing a story about how he visited a brothel in Mayfair, London....
- His Royal Highness the Prince of Wales v. Associated Newspapers LtdHis Royal Highness the Prince of Wales v. Associated Newspapers LtdHis Royal Highness the Prince of Wales v Associated Newspapers Ltd [2006] EWHC 11 is an English legal case brought about when the Mail on Sunday published extracts of the Diary of Prince Charles, second in line to the British throne....
See also
- Breach of confidenceBreach of confidenceThe tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of...
- European Convention on Human RightsEuropean Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
- Press Complaints CommissionPress Complaints CommissionThe Press Complaints Commission is a voluntary regulatory body for British printed newspapers and magazines, consisting of representatives of the major publishers. The PCC is funded by the annual levy it charges newspapers and magazines...
Further reading
- J. Morgan, “Privacy, Confidence and Horizontal Effect: “Hello” Trouble” (2003) 62 (2) Cambridge Law Journal 444
- H. Fenwick and G. Phillipson, “Confidence and Privacy: A Re-Examination” [1996] Cambridge Law Journal 447.
- H. Fenwick and G. Phillipson, “Breach of Confidence as a Privacy Remedy in the Human Rights Act Era” (2000) 63 Modern Law Review 660.
- R. Singh and J. Strachan, “Privacy Postponed” [2003] European Human Rights Law Review Special Issue: Privacy 12-25.