Privacy and Incrementalism Flashcards
Should there be a general privacy tort for pure intrusion?
Kaye v Robertson (1991)
“It is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person’s privacy”
- Glidewell LJ
Warren and Brandeis proposal for tort of privacy
Should generalise certain cases of defamation, breach of copyright, trade secrets and breach of confidence into one tort of privacy.
The USA post Warren and Brandeis
“Courts in the US were receptive” (Hoffman in Wrainwright)
However, it wasn’t working…
Dean Prosser says the elements have “nothing in common”, and his taxonomy divided it up into 4 separate torts.
Wainwright v Home Office (2004)
Prison strip search.
Hoffman: “The need for the US to break ‘invasion of privacy’ into a number of loosely-linked torts casts doubt on the value [of a general tort]” [18]
Law has been “unwilling, perhaps unable” to formulate a new tort.
The US 4 privacy torts
1) Intrusion (includes harassment)
2) Public disclosure of private facts (MPI)
3) Publicly putting plaintiff in a false light (defamation)
4) Appropriation of the plaintiffs likeness (identity theft)
Lord Hoffman on incrementalism in tort
Wainwright v Home Office [18]:
England already has torts of trespass, private nuisance and defamation; there is also breach of confidence in equity, and statute for harassment and data protection.
Recognises lacuna in current law - says it can be filled by developing existing principles, EG:
- Breach of Confidence used in Campbell v MGN (2003)
HOWEVER, incrementalism cannot always work:
- Attempt in Khorasandjian v Bush (1993) to create a tort of telephone harassment on basis of private nuisance.
- REJECTED in Hunter v Canary Wharf Ltd (1997) as “going too far”
Lord Nicholls in Campbell v MGN
“This tort, however labelled, affords respect for one aspect of an individual’s privacy. That is the value underlying this cause of action”
“An individual’s privacy can be invaded in ways NOT involving publication of private information. Strip searches are an example.”
Sounds like ‘although it is labelled misuse of private INFORMATION, the value of the tort is that general respect to privacy and this can be their private information, or their private integrity’.
THIS WAS OBITER AS NOT RELEVANT TO THE ACTUAL DECISION OF THE CASE
Von Hannover v Germany (No.1)
Not entirely clear from the judgment whether the violation arose due to the TAKING of the photos (intrusion) or their PUBLICATION (MPI).
Has the Gelati v MGN case created a new tort for pure intrusions?
Moreham (2015) thinks so, however:
- Only a HC case, which does not bind its self
- It was only the measure of damages that was litigated, not whether there was a misuse of private information. The paper already conceded that it was.
Positive obligation - Soderman v Sweden (2013)
14 y/o video taped using shower by stepfather.
ECtHR held that where the national courts do not have a remedy to guard against infringement of the claimant’s “personal integrity”, there will be held a violation of Article 8.
CONTRAST with Wainwright
Will this extend to a positive obligation to guard against intrusive acts generally? Or just to those that infringe “personal integrity”?
The uni-polar model
Eric Descheemaeker:
Coins the term ‘uni-polar’ model, which means the conflation of the wrongful act (intrusion) with the harmful consequences (misuse of information).
The ‘harm’ suffered by the claimant is the restriction in their right to privacy inherent in the defendant’s wrongful act.
