English Privacy Law
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Privacy in English law is a rapidly developing area of
English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
that considers situations where individuals have a
legal right Some philosophers distinguish two types of rights, natural rights and legal rights. * Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are ''universal'', ''fundamental rights ...
to informational privacy - the protection of personal or private information from misuse or unauthorized disclosure. Privacy law is distinct from those laws such as
trespass Trespass is an area of tort law broadly divided into three groups: trespass to the person (see below), trespass to chattels, and trespass to land. Trespass to the person historically involved six separate trespasses: threats, assault, battery ...
or
assault In the terminology of law, an assault is the act of causing physical harm or consent, unwanted physical contact to another person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and a tort and, therefore, may ...
that are designed to protect physical privacy. Such laws are generally considered as part of
criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and Well-being, welfare of people inclusive of one's self. Most criminal l ...
or the law of tort. Historically, English
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
has recognized no general right or
tort A tort is a civil wrong, other than breach of contract, that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with cri ...
of privacy, and offered only limited protection through the doctrine of
breach of confidence The tort of breach of confidence is, in United Kingdom law and the United States law, a common-law tort that protects private information conveyed in confidence. A claim for breach of confidence typically requires the information to be of a co ...
and a "piecemeal" collection of related legislation on topics like
harassment Harassment covers a wide range of behaviors of an offensive nature. It is commonly understood as behavior that demeans, humiliates, and intimidates a person, and it is characteristically identified by its unlikelihood in terms of social and ...
and
data protection Data protection may refer to: * Information privacy, also known as data privacy * Data security {{Authority control ...
. The introduction of the
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament (United Kingdom), Act of Parliament of the United Kingdom which received royal assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the ...
incorporated into English law the
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
. Article 8.1 of the ECHR provided an explicit right to respect for a private life. The Convention also requires the judiciary to "have regard" to the Convention in developing the common law.


Definition

The earliest definition of privacy in English law was given by Thomas M. Cooley who defined privacy as "the right to be left alone". In 1972 the Younger Committee, an inquiry into privacy stated that the term could not be defined satisfactorily. Again in 1990 the Calcutt Committee concluded that: "nowhere have we found a wholly satisfactory statutory definition of privacy".


Common law

There is currently a
right to privacy The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 185 national constitutions mention the right to privacy. Since the globa ...
in
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
. This point was reaffirmed when the House of Lords ruled in ''Campbell v MGN'' (a case involving a supermodel who claimed that she had not taken drugs). It has also been stated that the European Convention on Human Rights does not require the development of an independent tort of privacy. In the absence of a common law right to privacy in English law torts such as the equitable doctrine breach of confidence, torts linked to the intentional infliction of harm to the person and public law torts relating to the use of police powers have been used to fill a gap in the law. The judiciary has developed the law in an incremental fashion and have resisted the opportunity to create a new tort.


Expansion of privacy laws

British radio DJ
Sara Cox Sara Joanne Cyzer ( born 13 December 1974), better known as Sara Cox, is an English broadcaster and author. A presenter on BBC Radio 2, she has been hosting the station's drivetime show since January 2019. She previously presented BBC Radio 1's ...
's case against ''
The People The People may refer to: Legal jargon * The People, term used to refer to the people in general, in legal documents * "We the People of the United States", from the Preamble to the U. S. Constitution * In philosophy, economics, and political scienc ...
'' newspaper in 2003 was one of the first
celebrity privacy Celebrity privacy refers to the right of Celebrity, celebrities and public figures, largely entertainers, athletes or politicians, to withhold the information they are unwilling to disclose. This term often pertains explicitly to Personal data, ...
cases. The media referred to the case as a "watershed". The disc jockey sued after the newspaper printed nude photographs of her taken while on her honeymoon. However the case was settled out of court and so did not establish a precedent. The decision was seen as discrediting the
Press Complaints Commission The Press Complaints Commission (PCC) was a voluntary regulatory body for British printed newspapers and magazines, consisting of representatives of the major publishers. The PCC closed on Monday 8 September 2014, and was replaced by the Ind ...
The expansion of the doctrine of breach of confidence under the Human Rights Act began with the ''
Douglas v Hello! was a series of cases in which Michael Douglas and Catherine Zeta-Jones challenged the unauthorised use of photographs of their wedding in the English courts. The case resulted in '' OK!'' magazine being awarded £1,033,156. Facts Michael ...
'' decision in 2005. Section 6 of the Human Rights Act requires English courts to give effect to the rights in the Convention when developing the common law. There is no need to show a pre-existing relationship of confidence where private information is involved and the courts have recognised that the publication of private material represents a detriment in itself. The Human Rights act has
horizontal effect In law, horizontal effect refers to the ability of legal requirements meant to apply only to public bodies to affect private rights. It arises where a court dealing with a legal dispute between purely private entities interprets a legal provision to ...
in disputes between private individuals meaning that the Human Rights Act is just as applicable as if one party had been a public body. Breach of confidence now extends to private information (regardless of whether it is confidential) so as to give effect to Article 8 of the European Convention on Human Rights. Before this breach of confidence afforded "umbrella protection" to both personal and non-personal information.


European Court of Human Rights challenge

Following
Max Mosley Max Rufus Mosley (13 April 1940 – 23 May 2021) was a British businessman, lawyer and racing driver. He served as president of the Fédération Internationale de l'Automobile (FIA), the Sport governing body, governing body for Formula One. A ...
's successful action in 2008 against the ''
News of the World The ''News of the World'' was a weekly national "Tabloid journalism#Red tops, red top" Tabloid (newspaper format), tabloid newspaper published every Sunday in the United Kingdom from 1843 to 2011. It was at one time the world's highest-selling ...
'' newspaper for publishing details of his private life, he announced that he would challenge English law's implementation of the Article 8 right to privacy guaranteed when the Human Rights Act implemented the European Convention on Human Rights into English law. The European Court of Human Rights (ECHR) was asked to rule on the issue of "prior notification". This would require journalists to approach the subject of any investigation and inform them of the details of any allegations made about them, therefore allowing an injunction to be claimed. The ECHR ruled that domestic law was not in conflict with the convention.


Debate

The increasing protections afforded to the private lives of individuals has sparked debate as to whether
English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...
gives enough weight to freedom of the press and whether intervention by
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
would be beneficial. The editor of the satirical magazine ''Private Eye''
Ian Hislop Ian David Hislop (born 13 July 1960) is a British journalist, satirist, and television personality. He is the editor of the satirical magazine '' Private Eye'', a position he has held since 1986. He has appeared on many radio and television pr ...
has argued against the development of English privacy law. He told BBC's ''Panorama'': "You don't have to prove it n allegationisn't true, you just have to prove that it's private by your definition. And in some of the cases the definition of privacy is pretty weak." However, Liberal Democrat politician
Mark Oaten Mark Oaten (born 8 March 1964) is a British politician who was a senior member of the Liberal Democrats. He served as the Member of Parliament (MP) for Winchester from 1997 to 2010. Born in Watford, Hertfordshire, Oaten became a councillor i ...
has stated that the press were right to expose details of his private life: :"I concluded that however awful it may be, it's better to have a press which can expose MPs' private lives because it means we have a free press… it means we can expose corruption."
Max Mosley Max Rufus Mosley (13 April 1940 – 23 May 2021) was a British businessman, lawyer and racing driver. He served as president of the Fédération Internationale de l'Automobile (FIA), the Sport governing body, governing body for Formula One. A ...
has argued for the further advancement of the law whereas the editor of the ''
Daily Mail The ''Daily Mail'' is a British daily Middle-market newspaper, middle-market Tabloid journalism, tabloid conservative newspaper founded in 1896 and published in London. , it has the List of newspapers in the United Kingdom by circulation, h ...
'' newspaper Paul Dacre has accused Mr Justice Eady, the judge in the Mosley case, of bringing in a privacy law by the back door.


Key cases

* ''
Entick v Carrington ''Entick v Carrington'' 765EWHC KB J98is a leading case in English law and UK constitutional law establishing the civil liberties of individuals and limiting the scope of executive (government), executive power. The case has also been influenti ...
'' * '' Prince Albert v Strange'' * '' AMP v Persons Unknown'' * '' A v B plc'' * '' Bernstein of Leigh v Skyviews & General Ltd'' * '' Campbell v Mirror Group Newspapers Ltd'' * ''
Douglas v Hello! was a series of cases in which Michael Douglas and Catherine Zeta-Jones challenged the unauthorised use of photographs of their wedding in the English courts. The case resulted in '' OK!'' magazine being awarded £1,033,156. Facts Michael ...
'' * '' Google Inc v Vidal-Hall & Ors'' * '' Gulati & Ors v MGN Limited'' * '' Halliday v Creation Consumer Finance Ltd (CCF)'' * '' His Royal Highness the Prince of Wales v Associated Newspapers Ltd'' * '' Kaye v Robertson'' * '' Mosley v News Group Newspapers Limited'' * '' Murray v Big Pictures (UK) Ltd'' * '' McKennitt v Ash'' * '' Theakston v Mirror Group Newspapers Ltd'' * '' Wainwright v Home Office'' * '' Wood v Commissioner of Police for the Metropolis''


European rulings

* '' Von Hannover v. Germany''


See also

*
2011 British privacy injunctions controversy The British privacy injunctions controversy began in early 2011, when London-based tabloid newspapers published stories about anonymous celebrities that were intended to flout what are commonly (but not formally) known in English law as super-in ...
*
Breach of confidence The tort of breach of confidence is, in United Kingdom law and the United States law, a common-law tort that protects private information conveyed in confidence. A claim for breach of confidence typically requires the information to be of a co ...
*
European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...
*
Press Complaints Commission The Press Complaints Commission (PCC) was a voluntary regulatory body for British printed newspapers and magazines, consisting of representatives of the major publishers. The PCC closed on Monday 8 September 2014, and was replaced by the Ind ...


Further reading

* J. Morgan, “Privacy, Confidence and Horizontal Effect: “Hello” Trouble” (2003) 62 (2) ''Cambridge Law Journal'' 444 * H. Fenwick and G. Phillipson, “Confidence and Privacy: A Re-Examination”
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''Cambridge Law Journal'' 447. * H. Fenwick and G. Phillipson, “Breach of Confidence as a Privacy Remedy in the Human Rights Act Era” (2000) 63 ''Modern Law Review'' 660. * R. Singh and J. Strachan, “Privacy Postponed”
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''European Human Rights Law Review'' Special Issue: Privacy 12-25.


Notes and references


External links


Concerns and Ideas about the Developing English Law of Privacy(and how knowledge of foreign law might be of help) A research project undertaken by the Institute of Global Law

Can I Sue Google If It Says I’m Gay? The Tales of Internet Defamation in the UK
{{DEFAULTSORT:Privacy In English Law English law English tort law English privacy law