Confidence and privacy torts

It has often been said that the English law does not recognise a right to privacy 'as such'. 1 It has been widely agreed that privacy rights might find incidental protection by causes of action designed to protect other interests, but there is no distinct cause of action for 'invasion of privacy'. 2 This point was graphically illustrated in the case of Kaye v Robertson. 3 This case involved a well known actor who had undergone extensive surgery and was in hospital when he was photographed and allegedly interviewed by a tabloid newspaper.

The journalist and the photographer for the newspaper ignored notices asking visitors to ask permission from a member of staff before visiting patients. The claimant relied on causes of action in libel, trespass to the person, passing-off and malicious falsehood. It was accepted by the claimant's lawyers that his rights could not be protected by an action for breach of privacy.

This case is frequently cited in support of the proposition that the English law does not recognise a tort of privacy;4 however it has also been pointed out5 that the action was not brought in confidence, and no cases derived from the law of confidence were cited in court. 6 Although the Court of appeal refused his application, it noted that the case: "… highlighted, yet again, the failure of both the common law and of statute to protect in an effective way the personal privacy of individual citizens. "7 The protection of privacy was also referred to in the case of R v Khan8.

This case involved the admissibility of evidence secured through the use of concealed police surveillance equipment in relation to the defendant's suspected heroin importation, the House of Lords noted that the Article 8 (ECHR) right to privacy would only be of relevance in order to assist the construction of the law in a case of ambiguity or doubt. The House of Lords did not lament this lacuna in the law. The House of Lords concluded that the evidence could not be rendered inadmissible even though it could be said to have contravened Article 8. Lord Nolan said: "…

it would be a strange reflection on our law if a man who has admitted his participation in the illegal importation of large quantity of heroin should have his conviction set aside on the grounds that his privacy has been invaded. "9 When Lord Nolan heard the case he, along with Lord Taylor, highlighted the fact that the Convention had not been incorporated into English Statutory law. It remains open to speculation whether a decision similar to R v Khan would be adopted today, or whether the same result would be achieved in a more roundabout way on the basis of national interest.

On the other hand, the common law continues to evolve to meet new social needs and the Court of Appeal has recently referred with apparent approval to the "development of a new civil right of privacy". 10 However, in a later case a differently constituted court refused to deal with the point. It was stated that whether or not there is "a separate cause of action based upon a new tort involving the infringement of privacy" was a "vexed question" which was not necessary for first instance judges to tackle when considering applications for injunctions.

This issue has been avoided in a great number of high profile cases which have been described in the media as being about 'privacy'. 12 It has been suggested that now may be time to directly confront this issue. It has been argued that the potential new tort of privacy will assist both claimant and defendants and their advisors in assessing where they stand when "privacy" issues arise. There have been occasions where the court has recognised privacy over and above other legal provisions, but this recognition has not been consistent.

In the case of Haig v Aitken13 the trustee in bankruptcy of Jonathan Aitken, ex-Conservative MP and Cabinet member, wished to 'realize' valuable papers belonging to Aitken that were personal to him in a variety of ways. The papers included letters to heads of state and to former ministers, and even 'intimate' correspondence. Under insolvency law, it was recognised by the court that, because Mr Aitken was a bankrupt, his estate should be transferred to the trustee in bankruptcy for him to 'realize' it (i. e. to sell it for the benefit of Mr Aitken's creditiors).

However, the court upheld Mr Aitken's claim that, given their personal nature, the documents ought not to be sold because they were protected under Article 8 of the Convention. Under recent case law there have been three diverse views raised in regards to the availability and desirability of a tort of invasion of privacy. Firstly it has been argued that there is no common law tort of invasion of privacy and the courts are prevented from developing such law due to the binding authority of the Court of Appeal.

14 Then again, even before the Human rights Act the courts were slowly developing a tort of invasion of privacy based on breach of confidence. The Court of Appeal did not consider a claim based on breach of confidence in Kaye v Robinson15 and the point as to whether there was a right of privacy in English Law was explicitly left open in a number of cases. 16 Others claim that there is no tort and no need to develop one because in "the great majority of situations, if not all situations, where the protection of privacy is justified … an action for breach of confidence now will … provide the necessary protection.

"17 This view does involve some expansion of the cause of action for breach of confidence resulting, in part, from the HRA but reflecting pre-existing case law. 18 It has also been argued that a new tort is required and is now available or at least developing, in part at least as a result of the impetus provided by the Human Rights Act. 19 In March 2002 it seemed that attempts by lawyers to establish a law of privacy on the basis of article 8 of the Human Rights Act, the right to a private life, seemed to have failed due to the competing right to freedom of expression, protected by article 10.

As a result of this news the newspapers started celebrating 'press freedom' victory. These celebrations were very premature because after Naomi Campbell's victory over the Mirror newspaper this territory must be fought over all over again (see Appendix 1) A recent case which looked at invasion of privacy was that of a married footballer (Garry Flitcroft) who said his affair with a lap dancer was a private matter and obtained an injunction to prevent the Sunday people reporting it.

At the Court of Appeal Lord Woolf, the Lord Chief Justice, was widely interpreted to indicate that rights to freedom of expression under article 10 of the Human Rights Act clearly outweighed rights to privacy under article 8. Lord Woolf said: " the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest" (see Appendix 2) A person who takes a photograph of another person in a hospital bed, without his knowledge, is not under an 'obligation of confidence' to the person whose photograph he has taken.

A claim for breach of confidence can only be held in such cases through the imposition of a 'deemed' obligation of confidence on the photographer. In the words of Sedley LJ, the law "needs to construct an artificial relationship of confidentiality between intruder and victim"20 This was also recognised by the Court of Appeal in A v B & C21 which said that: "A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know what the other person can reasonably expect his privacy to be protected".

A "duty of confidence" like this seems to be indistinguishable from a tortuous duty not to intrude into a person's privacy. In addition, there have been various cases which are generally accepted as involving invasion of privacy where the 'private' information in question is not 'confidential'. Examples of these types of cases include: a public figure's personal address22; photographs of a well known novelist's child lying on a hotel beach23; information that a woman has left her husband for another woman24; and a photograph taken through a window from a public street with a normal camera.

This information was available to neighbours, to other users of the beach, to friends and associates or to passers by. However, in each of these cases the media friendly Press Complaints Commission found there to be a breach of the 'privacy protection' provision in clause 3 of the code. An extended cause of action for breach of confidence would be of no assistance in any of these situations unless 'deeming' were extended to information which is not normally regarded as confidential. A person will be liable for obtaining information which was deemed to be confidential in circumstances in which they were deemed to owe a duty of confidence.

An action for breach of confidence is not available in a situation where a person had simply been made the subject matter of surveillance (by, for example, video surveillance being directed to a private garden) without 'information' being gathered. In the Wainwright case the strip searching of the claimants did not involve any infringement of a right of confidence. 26 However, by persuading a person to remove their clothes in circumstances in which there is no legal power to do so involves a clear invasion of that person's "private life" and it has been suggested that it should receive protection in appropriate cases from the law of tort.

It seems that these difficulties will be overcome by the recognition of a specific tort of invasion of privacy. As Sedley LJ put it in Douglas v Hello28 "What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people who trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy. "