Our invitee blogger, Edgar Forbes, is Senior Lecturer inward Media Law as well as Intellectual Property at Bournemouth University. Edgar writes:
It’s official. There is no Right of Privacy inward the UK. Forget promises past times the European Convention on Human Rights or the Human Rights Act that “Everyone has the correct to honor for his individual as well as household unit of measurement life, his habitation as well as his correspondence” are in that location to protect privacy. Nor, it would seem, create these legislative provisions require English linguistic communication constabulary to recognise privacy every bit a commutation human right.
In rejecting that English linguistic communication constabulary should recognise a tort of privacy Lord Hoffmann inward Wainwright as well as around other v Home Office [2003] UKHL 53 (16 Oct 2003) states: “There seems to me a bully departure betwixt identifying privacy every bit a value which underlies the existence of a dominion of constabulary (and may hollo for the direction inward which the constabulary should develop) as well as privacy every bit a regulation of constabulary inward itself”. The judgment narrows the orbit of privacy as well as steers the constabulary away from the to a greater extent than rights-based approach seen inward recent cases. Privacy proponents had been cheered past times Sedley LJ’s approach inward Douglas v. Hello! Ltd that “The constabulary no longer needs to build an artificial human relationship of confidentiality betwixt intruder as well as victim: it tin recognise privacy itself every bit a legal regulation drawn from the commutation value of personal autonomy”. While non rejecting Sedley LJ’s approach outright, Lord Hoffmann decided to dismiss it every bit “a plea for the extension as well as mayhap renaming of the sometime activity for breach of confidence”. This was echoed inward Lord Scott’s dictum “whatever remedies may receive got been developed for misuse of confidential information, for certainly types of trespass, for certainly types of nuisance as well as for diverse other situations inward which claimants may observe themselves aggrieved past times an invasion of what they conceive to endure their privacy, the mutual constabulary has non developed as well as overall remedy for the invasion of privacy”.
So why is in that location such a judicial reluctance to comprehend privacy per se? In his judgment Lord Hoffmann made reference to the U.S.A. tort of privacy but, citing Dean Prosser’s taxonomy (Dean Prosser: The Law of Torts, fourth ed 1971), concluded that it required privacy to endure broken downward into a issue of ‘loosely-linked torts’ which casts dubiety upon the value of whatever high-level generalisation. “English constabulary has so far been unwilling, perhaps unable, to formulate whatever such high-level principle”.
Whether unwilling or unable, the approach of the House of Lords is that (1) in that location are sufficient laws as well as legal principles that tin extend to covert alleged violations of what people ‘conceive’ to endure their privacy; (2) the fact these laws be is sufficient to satisfy the requirements of the European Convention as well as Human Rights Act as well as (3) since it is for the legislature to brand laws, it is for Parliament as well as non the Courts to formulate them. The UK legislature has thence far avoided whatever effort at formulation. The 1990 Calcutt Committee as well as the recent Government answer to the fifth study of the Culture, Media as well as Sport Select Committee on Privacy as well as Media Intrusion (published sixteen June 2003) concluded that neither a correct to privacy nor a correct to liberty of aspect were absolutes ― they should endure weighed against each other. This was, the study concluded, best left to self-regulation.
Where serious intrusions occur, self-regulation seems to receive got provided insufficient remedy as well as is confined to those it seeks to regulate. The Press Complaints Commission states that the “use of longlens photography to bring pictures of people inward individual places without their consent is unacceptable” yet decided that a beach was non sufficiently individual a house when newscaster Anna Ford complained nearly the publication of close-up shots of her on holiday. Similarly a common was non a individual house when actress Kate Beckinsdale complained nearly pictures of her as well as her immature lady inward a park. Meanwhile Radio 1 DJ Sara Cox was awarded an out of courtroom small town for unwanted vacation snaps of her as well as her partner. So where’s the rationale? Is a lack of legal regulation leading to haphazard protection of values?
In Douglas v. Hello!, Michael Douglas as well as Catherine Zeta Jones were awarded damages for an illicit photograph taken at their wedding, which they had already commercialised past times selling the exclusive epitome rights to OK magazine. So they invite photographers to a individual occasion as well as larn damages piece others are lying on a beach minding their ain job organisation as well as can’t claim for the longlens intrusions they suffer. How tin this be? In short, if you lot commercialise your epitome or individual life, the constabulary tin furnish protection through ane of its traditional tort based remedies. If you lot receive got non set a monetary value on your privacy as well as rely on it beingness a moral right, as well as so tough. The House of Lords has confirmed that the constabulary is unwilling or unable to help.
Lord Hoffmann refers to privacy every bit a value rather than a principle, an approach that perhaps explains why the constabulary seems happy to entertain a commoditised version of privacy every bit a holding correct rather than a commutation human or moral right. How else tin it endure that such an intimate violation every bit an improperly conducted strip search (as inward Wainwright) is unworthy of remedy. How tin someone endure interviewed as well as photographed inward a infirmary bed (see Kaye v. Robertson [1991] FSR 62) as well as the courts non observe that his privacy was invaded because he did non ain or occupy the infirmary room as well as his trunk was non touched (so no trespass occurred). How tin Lord Hoffmann acknowledge that the European Court concluded that the UK did non offering Geoffrey Peck (see Peck v. United Kingdom) adequate remedy afterward CCTV images of him were widely publicised without his consent simply as well as so deny it has anything to create amongst privacy. Mr Peck was suicidal as well as was caught on CCTV attempting to slit his wrists. After the images had been viewed past times over nine ane chiliad m people on prime number fourth dimension tv Lord Hoffmann notwithstanding felt able to dismiss such a gross intrusion on privacy every bit showing “no to a greater extent than than a need, inward English linguistic communication law, for a organisation of command of the purpose of celluloid from CCTV cameras which shows greater sensitivity to the feelings of people who hap to receive got been caught past times the lens”.
So is that what the Government says is best left to self-regulation? Is the fact that no existing tort was committed as well as Mr Peck had non tried to sell his epitome rights on the CCTV sufficient declaration to deny Mr Peck a remedy? The European Court declared that it was not. Yet the House of Lords has made no effort to comprehend the message inward that judgment or the spirit of the European Convention inward their judgment inward Wainwright. So what does this hateful for privacy? The constabulary volition protect things derived from people’s individual life such every bit information, images or reputation yet it seems unwilling to protect privacy per se. In other words, the constabulary volition recognise the holding rights attached to privacy ahead of personal or moral rights.
This shifts the legal imperative from protection of a human correct to protection of a commercial value inward that right. Privacy has run an intellectual holding right.
It’s official. There is no Right of Privacy inward the UK. Forget promises past times the European Convention on Human Rights or the Human Rights Act that “Everyone has the correct to honor for his individual as well as household unit of measurement life, his habitation as well as his correspondence” are in that location to protect privacy. Nor, it would seem, create these legislative provisions require English linguistic communication constabulary to recognise privacy every bit a commutation human right.
In rejecting that English linguistic communication constabulary should recognise a tort of privacy Lord Hoffmann inward Wainwright as well as around other v Home Office [2003] UKHL 53 (16 Oct 2003) states: “There seems to me a bully departure betwixt identifying privacy every bit a value which underlies the existence of a dominion of constabulary (and may hollo for the direction inward which the constabulary should develop) as well as privacy every bit a regulation of constabulary inward itself”. The judgment narrows the orbit of privacy as well as steers the constabulary away from the to a greater extent than rights-based approach seen inward recent cases. Privacy proponents had been cheered past times Sedley LJ’s approach inward Douglas v. Hello! Ltd that “The constabulary no longer needs to build an artificial human relationship of confidentiality betwixt intruder as well as victim: it tin recognise privacy itself every bit a legal regulation drawn from the commutation value of personal autonomy”. While non rejecting Sedley LJ’s approach outright, Lord Hoffmann decided to dismiss it every bit “a plea for the extension as well as mayhap renaming of the sometime activity for breach of confidence”. This was echoed inward Lord Scott’s dictum “whatever remedies may receive got been developed for misuse of confidential information, for certainly types of trespass, for certainly types of nuisance as well as for diverse other situations inward which claimants may observe themselves aggrieved past times an invasion of what they conceive to endure their privacy, the mutual constabulary has non developed as well as overall remedy for the invasion of privacy”.
So why is in that location such a judicial reluctance to comprehend privacy per se? In his judgment Lord Hoffmann made reference to the U.S.A. tort of privacy but, citing Dean Prosser’s taxonomy (Dean Prosser: The Law of Torts, fourth ed 1971), concluded that it required privacy to endure broken downward into a issue of ‘loosely-linked torts’ which casts dubiety upon the value of whatever high-level generalisation. “English constabulary has so far been unwilling, perhaps unable, to formulate whatever such high-level principle”.
Whether unwilling or unable, the approach of the House of Lords is that (1) in that location are sufficient laws as well as legal principles that tin extend to covert alleged violations of what people ‘conceive’ to endure their privacy; (2) the fact these laws be is sufficient to satisfy the requirements of the European Convention as well as Human Rights Act as well as (3) since it is for the legislature to brand laws, it is for Parliament as well as non the Courts to formulate them. The UK legislature has thence far avoided whatever effort at formulation. The 1990 Calcutt Committee as well as the recent Government answer to the fifth study of the Culture, Media as well as Sport Select Committee on Privacy as well as Media Intrusion (published sixteen June 2003) concluded that neither a correct to privacy nor a correct to liberty of aspect were absolutes ― they should endure weighed against each other. This was, the study concluded, best left to self-regulation.
Where serious intrusions occur, self-regulation seems to receive got provided insufficient remedy as well as is confined to those it seeks to regulate. The Press Complaints Commission states that the “use of longlens photography to bring pictures of people inward individual places without their consent is unacceptable” yet decided that a beach was non sufficiently individual a house when newscaster Anna Ford complained nearly the publication of close-up shots of her on holiday. Similarly a common was non a individual house when actress Kate Beckinsdale complained nearly pictures of her as well as her immature lady inward a park. Meanwhile Radio 1 DJ Sara Cox was awarded an out of courtroom small town for unwanted vacation snaps of her as well as her partner. So where’s the rationale? Is a lack of legal regulation leading to haphazard protection of values?
In Douglas v. Hello!, Michael Douglas as well as Catherine Zeta Jones were awarded damages for an illicit photograph taken at their wedding, which they had already commercialised past times selling the exclusive epitome rights to OK magazine. So they invite photographers to a individual occasion as well as larn damages piece others are lying on a beach minding their ain job organisation as well as can’t claim for the longlens intrusions they suffer. How tin this be? In short, if you lot commercialise your epitome or individual life, the constabulary tin furnish protection through ane of its traditional tort based remedies. If you lot receive got non set a monetary value on your privacy as well as rely on it beingness a moral right, as well as so tough. The House of Lords has confirmed that the constabulary is unwilling or unable to help.
Lord Hoffmann refers to privacy every bit a value rather than a principle, an approach that perhaps explains why the constabulary seems happy to entertain a commoditised version of privacy every bit a holding correct rather than a commutation human or moral right. How else tin it endure that such an intimate violation every bit an improperly conducted strip search (as inward Wainwright) is unworthy of remedy. How tin someone endure interviewed as well as photographed inward a infirmary bed (see Kaye v. Robertson [1991] FSR 62) as well as the courts non observe that his privacy was invaded because he did non ain or occupy the infirmary room as well as his trunk was non touched (so no trespass occurred). How tin Lord Hoffmann acknowledge that the European Court concluded that the UK did non offering Geoffrey Peck (see Peck v. United Kingdom) adequate remedy afterward CCTV images of him were widely publicised without his consent simply as well as so deny it has anything to create amongst privacy. Mr Peck was suicidal as well as was caught on CCTV attempting to slit his wrists. After the images had been viewed past times over nine ane chiliad m people on prime number fourth dimension tv Lord Hoffmann notwithstanding felt able to dismiss such a gross intrusion on privacy every bit showing “no to a greater extent than than a need, inward English linguistic communication law, for a organisation of command of the purpose of celluloid from CCTV cameras which shows greater sensitivity to the feelings of people who hap to receive got been caught past times the lens”.
So is that what the Government says is best left to self-regulation? Is the fact that no existing tort was committed as well as Mr Peck had non tried to sell his epitome rights on the CCTV sufficient declaration to deny Mr Peck a remedy? The European Court declared that it was not. Yet the House of Lords has made no effort to comprehend the message inward that judgment or the spirit of the European Convention inward their judgment inward Wainwright. So what does this hateful for privacy? The constabulary volition protect things derived from people’s individual life such every bit information, images or reputation yet it seems unwilling to protect privacy per se. In other words, the constabulary volition recognise the holding rights attached to privacy ahead of personal or moral rights.
This shifts the legal imperative from protection of a human correct to protection of a commercial value inward that right. Privacy has run an intellectual holding right.
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