Hariharan and Fearn essay question Flashcards
revision
Value of land v distress to occupants
The glass, floor to ceiling were a selling point for the land but Tate visitors peer into the flats and photograph the flats and inhabitants.
Supreme court majority: private nuisance is a ‘tort to land’, so it doesn’t protect the occupier from discomfort but of diminished use.
Case generates debate about the value of public spaces and whether the uber-wealthy should have to put up with visual intrusions when they live in glass-walled buildings.
Privileges the privacy of a few wealthy residents over the public enjoying views of the city.
Paves the way for middle/working class.
Protection of physical & digital privacy
HRA 1998 right to privacy, art 8 not absolute.
Tate visitors peering, looking and photographing the flats despite Tate putting notices saying not to do so.
Photo’s could be unlawful processing of personal data.
Using privacy in everyday sense observation is a material intrusion into C’s privacy.
Overlooking.
Highly likely a property holder would be able to bring a nuisance claim where intrusion is digital.
Use and enjoyment of land in a digital age
Removes emphasis on land and focuses on enjoyment. Private nuisance: protects the use and enjoyment of land for those who have a proprietary interest. Protects against indirect, unlawful interference.
Tate’s viewing platform unreasonably and substantially interfered with the enjoyment of the flats.
Nuisance is concerned with use and enjoyment of land. Highlights visual intrusion can be a much of an interference with one’s enjoyment of land as unreasonable with one’s enjoyment of land as unreasonable noises/dust/smells.
Protection of physical privacy in a digital age whilst limiting protection to property holders who can frame sensory intrusions as interference.
On one hand Fearn makes new path for protection of privacy in the digital age while limiting benefits of protection to those with sufficient interest.
Nuisance: Fearn v Tate Gallery (SC) [2023]
Private nuisance: protects the use and enjoyment of land (Read v Lyons [1945]) for those who have a proprietary interest (Hunter v Canary Wharf Ltd [1997]). Protects against indirect, unlawful interference. Don’t need to balance public interest in a private nuisance.
The level of visual intrusion was found unreasonable and supreme court recognises visual intrusion as actionable.
Residents of Fearn and others claimed Tate’s viewing platform allows visitors to see into flats constituting a nuisance (Open 10:00-18:00 Mon-Thur, 10:00-22:00 Fri-Sat).
Sensory/visual intrusion
Supreme Court ruled in favour of C, recognising visual intrusion as actionable. Level of visual intrusion found to be unreasonable and amounts to a nuisance.
Visual intrusion can be an interference with one’s use and enjoyment of land.
May argue misuse of private info now sufficiently protects against visual intrusions.
Supreme court arguments moves away from the need to consider art8 HRA 1998 at all.
Overlaps between person and land-based torts
Person based: physical interference is equated with contact or touch. In nuisance physicality can only have explanatory power if it covers tangible and non-tangible interferences.
Fearn emphatically confirms that physical interference does not require physical contact and thus may protect against sensory/visual interference.
Unlikely a court would protect a C as strongly against visual intrusion as the majority did in Fearn, testaments what residents can achieve by framing their case as a violation of their property rights.
Scope of nuisance & of ‘visual intrusion’
Fearn not so much about private nuisance but expanding principle to cover unusual intrusion.
Supreme court found visual intrusion can amount to nuisance and is actionable.
Arguable that misuse of private info is now sufficiently capacious to protect against visual intrusion.
Lord Leggatt: nuisance will be unjustly denied in clear-cut situations if visual intrusions are excluded on policy grounds.
Lord Sales: visual intrusion can be just as much of an interference with enjoyment of land as unreasonable noises/dust/smells.
Supreme Court moves from earlier authority which had been interpreted as precluding liability for ‘mere overlooking’.
Common and ordinary use of land
Majority emphasis on the ‘common and ordinary use’ of land.
General rule a person can build whatever they like on their own land is an aspect of common and ordinary use as a basic freedom to decide whether and how to occupy a property.
Viewing platform is not common and ordinary use of land in the locality.
C’s are using their homes in the common and ordinary manner. (especially key if D is not).
Privacy protections
HRA 1998, right to privacy, act8.
Difficult imbalance when compared to the forms of privacy protections which are available to a broader class of claimants, especially individuals who experience egregious sensory intrusions on land that isn’t theirs.
Claiming interference with property rights and the narrow application of common and ordinary use of land, achieved a higher level of privacy protection.
Fearn results in very different degrees of privacy.
Protection being afforded to a C depending on whether they’re able to contend that their interests in not being watched are their right and touches on enjoyment.
Contrast with Giliker
Hariharan: how the supreme court integrated intense visual intrusion into the existing structure of nuisance.
Giliker: the function of the nuisance tort, particularly its use as a vehicle to protect privacy interests associated with the home (relations between nuisance and the legal concept of privacy and HRA art8).
Hariharan: supreme court justification of extreme visual intrusion as an actionable nuisance, how it fits or modifies existing nuisance doctrine?
Giliker: does the decision demonstrate private nuisance being used to protect privacy interests, implications of using property-based tort for what’s often a personal right?
Contrast with Giliker 2
Hariharan: treats privacy as an aspect of enjoyment of land protected by nuisance. Whether looking was enough to impair the enjoyment of land, no focus on privacy.
Giliker: explores the conceptual links and tensions between property rights (nuisance) and personal rights (privacy), art8 HRA.
Hariharan: focus on the doctrinal coherence of the majority’s reasoning, the handling of precedent and the application of concepts like ‘ordinary use’ and ‘reasonable user’.
Giliker: focus on the judgements functional outcome for privacy protection. Praises finding a remedy but not the use of nuisance as the tool. Whether its a broader trend or deficiencies.
Contrast with Giliker 3
Hariharan: emphasises implication for future nuisance claims involving visual intrusion, overlooking and even drone surveillance and the development of nuisance law concerning intangible interferences.
Giliker: emphasises implications for the development of privacy law, common law and HRA and how to protect privacy interests in the modern world. Whether Fearn reduces the pressure for legislative action on privacy torts.
