Invasion of Privacy in the UK - Coursework Example

Invasion of Privacy Introduction The definition of privacy under British law has two aspects. First it involves the right of the individual to feel secure in his/her property and private life. Secondly privacy involves the right to control personal information and the extent to which that personal information should be shared and used.1 Thus protection of privacy is vastly protected as a right expressed in Article 8 of the European Convention on Human Rights (ECHR) (property and private life) and the Data Protection Act (information). In other words, only when rights to privacy as provided for under Article 8 of ECHR and the Data Protection Right are infringed will the claimant have a right claim for invasion of privacy. Remedies for invasion of privacy are therefore limited to informational privacy against private parties and broadly against public authorities. It therefore follows that invasion of privacy is not a well-developed remedy in British law as it is restricted as this paper demonstrates. An examination of the interpretation of Article 8 of ECHR demonstrates that the right to protection from governmental invasion is limited. Moreover, remedies for invasion of privacy under the Data Protection Act are of little use to the ordinary citizen. Thus there is a need for the Supreme Court to declare a tort of invasion of privacy in the same manner as a right for infringement of other Convention rights can be claimed in tort. Invasion of Privacy The law of privacy is not as developed in the UK as it is in the US. However, there are remedies for invasion of privacy in the UK against government officials.2 The Younger Committee first recommended a tort for invasion of privacy in 1972. But the recommendation was rejected primarily on the grounds that imposing a tort for protection against invasion of privacy was difficult when balancing personal privacy against the wider public interest in protecting freedom of expression and the free exchange of information.3 However, it is suggested that in a private situation, the free exchange of information and freedom of expression has little public utility as the value obtained from invading the privacy of an individual in private settings is limited. For instance, if an individual takes a photograph of his neighbour without his neighbour’s permission for his own personal use, there is no public benefit for the public and thus, there is no need to balance free expression with protection of personal privacy. The prevailing legal premise against allowing a specific tort for the invasion of privacy is founded on the belief that allowing a personal right to privacy will have an uneasy coexistence with the law of England and Wales which typically relies on breaches of a duty of care as opposed to positively asserting rights. This conceptual framework is founded on the principle that anything that is not prohibited is by implication allowed.4 However, elsewhere in the law, other positive rights are provided for in tort. For instance assault and battery, false imprisonment which are generally available against public officials as human rights claim are freely available as personal claims under the law of tort. Invasion of Privacy under the European Convention on Human Rights With the implementation of the Human Rights Act 1998 the prevailing legal climate may not matter with respect to the protection of personal privacy and thus remedies for invasion of privacy. The Human Rights Act 1998 incorporates into the Law of the UK, the European Convention on Human Rights, 1950 (ECHR)5 which in turn guarantees the protection of privacy.6 To this end Article 8 of ECHR provides that: Everyone has the right to respect for his private and family life, his home and his correspondence.7 Article 8 goes farther to state that the right to privacy as expressed in Article 8(1) (cited above) will not be interfered with by public authorities unless it is done so pursuant to law and is “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country” for preventing crime, protecting “health or morals” or for protecting the “the rights and freedoms of others”.8 The significance of Article 8(2) of ECHR is that it sets limits to the exercise of the right to privacy. First, the right to privacy can only be exercised against the state. Secondly, this right of privacy against government intrusion is limited in that the state can invade privacy in limited circumstances. Thirdly there may be tensions between the right to privacy and other rights. The most obvious tension arises out of Article 10 of ECHR which provides as follows: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 9 While Article 10(2) of ECHR is a qualified rights and provides similar restrictions to the exercise of the right of freedom of expression as contained in Article 8(2), it nevertheless conflicts with the right to privacy as expressed in Article 8. It therefore follows that adjudicators when deciding whether to protect the right to privacy and the right to freedom of information, it is more likely that adjudicators would favour the right to freedom of expression over protection of privacy. The former relates to the wider interest of the public while the latter relates to a personal benefit. This is known as “preferential framing” 10and as such exposes the lack of protection of the right to privacy. Thus it can be argued that in the UK invasion of privacy is not sufficiently protected and there is a need for a special tort of invasion of privacy. To begin with, the ECHR does not have horizontal effect in the UK.11 The fact is, all constitutional rights have always been implemented to protect the rights of private citizens from arbitrary acts by the state. Constitutional rights are rarely applicable to private bodies. In more recent times some jurisdictions have made “often tentatively” toward expending the protection of human rights to private parties.12 However, this is not the case in the UK where Section 6 of the Human Rights Act 1998 provides for the vertical effect of the ECHR.13 Even so, Section 3 of the Human Rights Act 1998 provides as follows: So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.14 It can therefore be argued that Convention rights can have indirect effect to the extent the private parties may be sued for invasion of privacy. This is because by virtue of Section 3 of the Human Rights Act 1998, the law must be interpreted in a way that is consistent with the ECHR. As the court noted in A v B [2002] 3 WLR 452 the effect of Section 3 is if that it strengthens the protection of the rights embodied in Articles 8 and 10 and requires courts to delicately balance those rights so that as far as possible freedom of expression and the right to privacy are both protected.15 Regardless, the English judiciary are generally predisposed to dismiss the idea that there is a general law relative to invasion of privacy in England and Wales.16 It is suggested that Article 8 like other Convention rights can be used to formulate a tort for the invasion of privacy. It is entirely up to the judiciary to make this leap and until the Supreme Court makes a declaration to this effect, the judiciary will continue to presume that invasion of privacy is not an actionable remedy in the law of tort. Statutory Rights for Invasion of Privacy While there is no tort relative to the invasion of privacy, the law itself has in principle protected privacy, albeit in a “piecemeal fashion”.17 For example, by virtue of Section 85 of the Copyright Designs and Patents Act 1988 privacy is protected to some degree for an individual who takes out a copyright on photographs or film. Thus with copyright protection, photographs or films may not be published unless the copyright holder authorizes it.18 There are several problems however. To start with, the film or photograph may contain images of another person other than the copyright holder and thus the copyright holder may consent to releasing the images of another person to the public. Secondly, copyright protection is only available to those who go to the trouble to register the copyright and thus achieve copyright protection. Perhaps the most important statutory provision allowing for the protection of privacy is the Data Protection Act 1998. The Data Protection Act 1998 implements EU Council Directive 95/46 which emphasises that the protection data by Member States shall be in accordance with the right to privacy as prescribed by Article 8 of the ECHR.19 To this end, the Data Protection Act 1998 makes provision for the processing of data.20 However, there is right to prevent the procession of data that will be damaging or distressing to the subject of the data.21 In the event, data is processed and causes damages or distress, the party suffering distress and/or damages is entitled to compensatory damages.22 Compensation will be granted for distress even where there is no proof of damages when the data is processed and released for certain reasons such as for media purposes or for arts or literature.23 In Campbell v MGM the Court of Appeal ruled that personal data must be process in a fair and lawful manner and processing should not be conducted without the subject’s consent.24 Personal data was described by the Court of Appeal in Durant v Financial Services Authority [2003] EWCA Civ 1746 as data relating to a person who is both alive and identifiable in the data or from that data together with additional information which the person or entity processing the data has in his or her possession or will likely have possession of at some later date.25 Personal data therefore obviously includes photographs.26 There is however one caveat undermining the extent to which the Data Processing Act 1998 protects individual privacy. The caveat relates to journalistic or literary or artistic purposes. In this regard, the person or entity releasing the data may have a lawful excuse if he or she believes that the release of that information or data is pursuant to the right to freedom of expression in the public interests and complying with the Data Processing Act 1998 would contravene the special purposes.27 In other words, freedom of expression and more especially, freedom of the press can be used as a viable defence to a claim of invasion of privacy or breach of confidentiality. Indeed the defence was used in Campbell v MGM. In this case it was argued that Campbell, a celebrity model was the subject of a published report providing the details of her attendance at narcotics anonymous meetings. Campbell had previously publically denied being addicted to drugs and thus it was determined that publication of narcotics anonymous meetings was something that the data processor could have reasonably believed were in the public’s interests in terms of the right to freedom of expression and information sharing.28 However, in another case, the publication of a celebrity couple’s wedding photographs were deemed an invasion of privacy as there was no evidence suggesting that the data processor had a reasonable belief that the publication of the photographs were in the public’s interests.29 Therefore there are limitations with respect to the extent to which private parties may challenge the conduct of private entities who invade their privacy. Moreover, the Data Processing Act 1998 for the most part is only useful to celebrities who are often up against the media. Thus the Data Procession Act 1998 is only of utility to the higher echelons of society leaving the ordinary man with little or no redress as the ordinary man can rarely, if ever meet the resources of the media. However, since the media is not interested in exposing the details of the lives of the ordinary individual, the issue of invasion of privacy will not likely arise for the ordinary man in terms of published data relative to their personal lives. For the most part the ordinary man has an uphill battle in terms of pursuing claims of invasion of privacy against a private citizen or entity. The case of YL v Birmingham City Council [2007] UKHL 27 is instructive in terms of exposing the difficulties the private individual may have in a claim of invasion of privacy under Article 8 of the ECHR. In YL v Birmingham Council, a resident of private home care facility who was placed in the home at the expense of local authorities sued the home owners under Article 8 of the ECHR who attempted to remove the claimant from the home. However, the House of Lords ruled that the owners of the home were not public bodies and thus the claim under Article 8 of the ECHR will fail.30 Conclusion The current state of the law reveals potential for the development of a tort of invasion of privacy. For example Marper R identified two areas of privacy already defined by the law: protection of personal property and protection of informational privacy. There is potential for developing a tort of invasion of privacy under these two heads of privacy. However, as it now stands the law is a long way off in terms of identifying and enforcing a law on the invasion of privacy. For instance protection of personal privacy is generally only available against the state and protection of informational privacy is generally only available to celebrities. Only where private citizens bring a claim against government bodies can they expect the claim to at least be heard on the merits of the case. However, if the claim is against private parties it will likely be dismissed on the basis that private parties do not owe a duty to one another to protect the rights of privacy. Moreover, the tensions between the right to privacy and freedom of expression further ensure that the right to privacy in England and Wales is far from clearly protected. As demonstrated, the judiciary has a tendency to resolve these tensions in favour of protection of the right to freedom of expression. Therefore in the final analysis the law is insufficiently developed to support the contention that invasion of privacy is already covered under the law of England and Wales. Bibliography Textbooks Beverley-Smith, H.; Ohly, A. and Lucas-Schloetter, A. Privacy, Property and Personality: Civil Law Perspectives on Commercial. (Cambridge, UK: Cambridge University Press, 2005). Lunney, M. and Oliphant, K. Tort Law: Text and Materials. (Oxford, UK: Oxford University Press, 2008). Articles/Journals Oliver, D. ‘Human Rights and the Private Sphere.’ (2008) 1(1) UCL Human Rights Review, 8-16. Smet, S. ‘Freedom of Expression and the Right to Reputation: Human Rights in Conflict.’ (2010) 26(1) Am. U. Int’l Law Review, 183-236. Cases Attorney-General v Guardian Newspaper Ltd. (No.2) [1988] 3 All ER 545. A v B [2002] 3 WLR 452. Campbell v MGN Limited [2004] UKHL 22. Campbell v MGM [2002] EWCA Civ 1373. Douglas v Hello!(No.1) [2001] 2 WLR 992. Durant v Financial Services Authority [2003] EWCA Civ 1746. Marper R (on the application of S) v Chief Constable of South Yorkshire [2004] UKHL 39. Wainwright v Home Office [2003] UKHL 53. YL v Birmingham City Council [2007] UKHL 27. Statutes Copyright Designs and Patents Act 1988. Data Protection Act 1998. EU Council Directive 95/46. European Convention on Human Rights, 1950. Human Rights Act 1998. Read More