Podcast: the Ugly
I have chosen a privacy question, as this topic seems to be gaining currency on tort courses, is now a distinct chapter in textbooks (even revision guides) and also brings in a blend of ‘pure’ tort and some of the human rights jurisprudence that is increasingly a feature of the study of modern tort law. It also enables me to comment on the use of case law, analysis, response to questions, etc. – all of the things that I believe should be features of effective feedback.
I think that the point should be made – if it isn’t already - in this feature that feedback is not just about giving a negative critique of what the student has produced, and that they should be shown ‘how to’ as well as ‘how not to’.
In Campbell v MGN Ltd [2004] AC 457, Lord Nicholls observed that ‘protection of various phpects of privacy is a fast developing area of the law’. (At p. 464.)
By reference to the relevant authorities, analyse developments in the law of tort that drew his Lordship to this conclusion.
Podcast: the Ugly
It could be argued that in English law there is no specialist tort for the invasion of privacy. (1) This is a poor opening. 'It could be argued' is very vague in the context of a quote that is definitive on the issue. If that is the case then it is unlikely that there could be developments in the law that would create a civil liability for invasions of it. This essay will compare and contrast (2) Pay specific attention to what the question asks. There is no requirement to compare and contrast US and UK law. the law in the USA and the UK in establishing how privacy claims are dealt with.
There is a great deal of similarity between defamation and privacy claims in English law, although the former has never been seen to protect privacy rights. But because there is a problem with determining whether published material is defamatory or not, there is a potential role for privacy. Defamation can be either permanent or temporary. If it is permanent, it is usually known as libel, and if it is temporary, such as speech, it is known as slander. Words used must be capable of defamatory meaning, must be able to be seen to refer to the particular claimant and must also have been published, which is when a third party is informed. Because of the cost of bringing or defending a defamation claim it may be that this can prevent a person from publishing material about another person if that person indicates that they might bring an action in defamation, which would then protect their privacy. (3) This entire outline of defamation, as well as being very superficial, is completely superfluous and a waste of words. It does nothing to address the question and is irrelevant.
American law has been described as being complicated, but does offer a person some means to protect their own privacy. The balance is different to English law though because of the fact that there is a constitutional right guaranteed for freedom of speech, and so the law that has developed has been established in that context and there is a better balance. It was argued by American writers Warren and Brandies that there should be a right to privacy like there is a right to property (4) It is always good to make reference to academic writing in an essay. However, it is important to accurately reflect the point made, and it helps if the name (Brandeis) is correctly spelt.
It was stated in the case of Wainwright that there is no English tort of an invasion of privacy by Lord Hoffmann. In that case a strip search of a mother and son when they visited a relative in prison was claimed to have caused psychiatric harm, and was claimed to have been a breach of their privacy. It was held that there was no remedy, so we can see that the courts were not able to find an invasion of privacy in that case.
In the case of Campbell, a celebrity model, who had denied that she was a drug addict, was photographed leaving a drug clinic and the picture was put on the front page of a tabloid newspaper. The model successfully claimed that the publication of the picture and details of her treatment was a breach of her privacy. This was because, there was not a public interest in the details of her medical treatment and like anyone else she had a right for that sort of information not to be disclosed. This was even so despite the fact that the claimant had previously said she was not a drug user. It seems, though, that it is just celebrities that are taking advantage of privacy laws. In a case involving Catherine Zeta-Jones getting married, a photographer from a magazine published unauthorised pictures. The pictures were unauthorised because the claimant had signed an exclusive deal with another magazine to publish the pictures (5) While the very basic facts are here, there is no context or explanation of the legal principles so the content does nothing to contribute to the answer.
Like in the American situation though there is a need to balance the need for privacy with the need for free speech. This is definitely the case now in English law since the Human Rights Act 1998. Article 8 of the Act protects privacy and so because of this the English courts have to make sure that a person has a remedy if their privacy rights are breached. But article 10 of the Act guarantees freedom of expression so it is hard to restrict information on the grounds of privacy. (6) The Human Rights Act does not contain 'articles'. Instead it permits the application of the European Convention on Human Rights, which does, of course, have articles, in the UK courts. It would depend on the type of information that was involved in the case. If it was personal information, there is case law to suggest that it should not be able to be published if a person does not want it to. That is unless it is in the public interest to publish it, which was not the case in Campbell. (7) This whole phpect needs far more focussed explanation. It struggles to convey any real meaning to the reader and is highly fragmented; lots of concepts are being introduced, but none properly examined.
So this brings us to how the tort law has developed. (8) How does it 'bring us' here? The structure does not make that leap in any way obvious. The courts have been reluctant to develop the law themselves and have preferred it to be left to Parliament who have also not taken the opportunity to introduce a general law. It was considered way back in the 1970’s by committees, which did not turn into law and now there is only a voluntary code of practice that the press self-impose on themselves. Instead they have passed specific legislation like the Prevention from Harassment Act. The development in tort law started with the case of Kaye, where an actor was photographed in a hospital bed and was said to have given an interview. It was recognised that his privacy had been breached but there was no remedy the courts could give him to prevent the publication of the pictures and interview.
Times have changed, though, and the case of Max Mosley who got awarded damages against the News of the World newspaper when it published pictures and a video on its website of him visiting a prostitute. It was held that a person’s sex life is private to them, and not in the public interest, which was like the decision with Theakstone. The Max Mosley case has been criticised by some sections of the media saying that judges are making their own privacy laws by the back door, despite the fact that in Campbell, Lady Hale said that they couldn’t. The way that the courts managed to get to the position where they could protect privacy was then by using the Human Rights Act and developing an idea called breach of confidence. The breach of confidence is seen where a person knows that the information that they have got about someone should not be published, or that they would not let that person print it if they knew that was going to happen. This came from the Coco case. (9) There is so much wrong here, with cases mixed together, the chronology all over the place and the issues from each of them blurring together, so as to create a real sense of confusion. (It is also Baroness Hale.)
In conclusion, there have been many developments in both English and American law which has seen there being a limited amount of protection for privacy. The case law has meant that the courts have developed this right to privacy in the absence of any statutory intervention like there has been in America. Areas of law like defamation and trespass to land can also help someone to keep their private life private by getting injunctions and keeping people off their property. But it really should be something that Parliament does to overcome the criticism that the courts should not be making such laws, which could have significant impact on the freedom of speech of the press. (10) The conclusion does not address the question, and is not able to draw any of the points made together. In fact, it introduces new material and, in keeping with the rest of the essay, does not explain it properly.