Civil Law

Civil Law

¶Introduction to privacy law 3.1 The concept of privacy is one which divides opinion, both in relation to the scope of its

protection and the manner in which it should be protected. This debate invariably requires reflection upon the fundamental right of freedom of expression and the extent to which the media are entitled to exercise this freedom without unjustifiably impinging upon the rights of private individuals.

¶Appendix 4 | Legal Materials

¶3.2 The common law has historically taken a conservative approach to the protection of privacy

and the courts have demonstrated reluctance to develop a general cause of action for the protection of privacy rights. The courts have previously adopted the stance that a specific right to privacy could only be recognised by Parliament and therefore individuals seeking to protect private information or restrain publication turned to the creative application of existing causes of action.103 For example, the law of confidentiality was invoked to restrain the publication of material with a personal or private dimension.104 Some concern was expressed at the implementation of Article 8 through the less than satisfactory means of requiring the Court to "shoehorn" within the cause of action of breach of confidence claims for misuse of private information, and it is right to observe that the tort of breach of confidence is not necessarily a good fit for complaints which focus on the intrusive nature of the publication, as opposed to the exposure of 'secret' information through publication.105

¶3.3 However, in the period 1997-1998 Parliament enacted three statutes which shape the law

providing protection against interference with privacy. First, the Protection from Harassment Act 1997 (PHA) provides a remedy for invasion of privacy which involves a course of conduct which the defendant knows or ought to know amounts to harassment, including conduct causing alarm or distress.106 The PHA protects against both publication of information and the conduct of the press in obtaining information; for example door-stepping and intrusive investigations. Secondly, the Data Protection Act 1998 (DPA) sets out a comprehensive regime for the processing of personal data and provides a remedy where privacy is invaded, both through publication or other methods of processing data.107 Thirdly, Parliament enacted the Human Rights Act 1998 (HRA). From 2 October 2000, when the HRA came into force, Articles 8 and 10 were incorporated in the law of England and Wales as substantive and enforceable rights.

¶3.4 The enactment of the HRA did not result in automatic recognition of a general tort of invasion

of privacy, as the House of Lords clarified in Wainwright v Home Office.108 However the HRA represented an important stepping-stone in the path to the development of the law to protect unjustified invasion of privacy, provoking lively discussion of the impact that the Act would have on the development of a law protecting privacy.109

¶3.5 Despite these three Acts of Parliament signalling recognition of the need to bolster

privacy rights, the Government made clear that it anticipated that the Courts would bear the responsibility of developing the law of privacy appropriately, having regard to the Convention.110 This task was taken up by the House of Lords in the seminal case of Campbell