Breach of Confidence as a Privacy Remedy in the Human Rights Act Era

DOIhttp://doi.org/10.1111/1468-2230.00286
Date01 September 2000
Published date01 September 2000
Breach of Confidence as a Privacy Remedy in the
Gavin Phillipson and Helen Fenwick*
This article examines the impact of the Human Rights Act (HRA) on the current
lack of a remedy for non-consensual publication of personal information by the
media. It argues that the action for breach of confidence is now ripe for
development into a privacy law in all but name and that the normative impetus for
this enterprise can be found in the HRA which will require domestic courts to
consider Convention jurisprudence. It will suggest that when Strasbourg decisions
are examined in the context of more general Convention doctrines, they may be
seen to suggest the need for an effective privacy remedy. Drawing upon
approaches from other jurisdictions it seeks to demonstrate that principled
solutions may be found to the thicket of legal problems associated with such
development. It contends that the main objection to this enterprise, the perceived
threat to media freedom, is largely misplaced, as analysis at the theoretical and
doctrinal levels reveals that speech and privacy interests are in many respects
mutually supportive and the areas of conflict small and readily susceptible to
resolution.
It may hardly be doubted that the lack of a clear legal remedy in respect of the non-
consensual disclosure of personal information is one of the most serious lacunae in
English law. Condemned by the Court of Appeal,1pronounced ‘a glaring
inadequacy’ by the Law Commission,2Lord Nicholls has remarked upon ‘the
continuing, widespread concern at the apparent failure of the law’ in this area.3
Warren and Brandeis’ comment on the press’s ability and willingness to inflict
through invasions of privacy ‘mental pain and distress far greater than could be
inflicted by mere bodily injury’,4is alarmingly applicable today, over one hundred
years later, save that the parabolic microphone and the telephoto lens now give the
press far more easy access to our more intimate moments. Anyone familiar with
the output of the print media will be wearily familiar with its penchant for
publishing what one journalist has described as ‘toe-curlingly intimate details’
about the sexual lives not only of celebrities but of ‘quite obscure people.’5
Intrusive prurience is not the only complaint: Victim Support has detailed a large
number of case histories in which ordinary victims of crime and their families had
their suffering markedly exacerbated by intrusive publications in local and national
newspapers, describing their plight in quite needless detail, causing in some cases
ßThe Modern Law Review Limited 2000 (MLR 63:5, September). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
660
* Respectively, School of Law, University of Essex and Department of Law, University of Durham. An
earlier version of this article was given as a paper by the former in the Public Law section of the 1997
SPTL Annual Conference. The authors would like to thank Geoff Gilbert for his comments on an earlier
draft of this article; any errors, and the article’s conclusions, remain their own responsibility.
1Kaye vRobertson [1991] FSR 62, CA.
2Breach of Confidence (Law Com. No. 110), para 5.5: ‘the confidentiality of information improperly
obtained . . . may be unprotected’.
3RvKhan [1997] AC 558, 582.
4 ‘The Right to Privacy’ (1890) IV(5) Harvard Law Review 193, 196.
5 Andrew Marr, The Independent 25 April 1996. Numerous examples were given by the editor of The
Guardian, Alan Rushbridger in a paper delivered at a conference at UCL on 8 January 1999: Human
Rights, Privacy and the Media.
diagnosable psychiatric harm and making others feel forced to move from the area
where the crime had been committed.6In contrast to the position in virtually every
other Western democracy, such injuries attract no legal remedy in this country. The
Press Complaints Commission polices a code protecting privacy, but has no
compensatory or restraining powers: it may request only the printing of its
adjudication on individual cases.
While the notion of respect for individual privacy can now be said to be a clear
underlying common law value,7it has so far failed to find full expression, perhaps
because intermittent governmental interest over recent years in statutory protection
for privacy has distracted the courts with the chimera of possible legislative
action.8However, no government in the past has actually grasped this nettle,
doubtless due to the fear of press hostility.9In October 2000, however, the Human
Rights Act 1998 (‘HRA’) will introduce into UK law Article 8 of the European
Convention on Human Rights providing for a right to respect for private life.10
While Article 8 will not be directly justiciable against the press,11 its reception into
UK law will nevertheless provide an impetus for the notion of respect for privacy
as an underlying legal value finally to find expression through the common law.
The academic literature so far generated by this issue has either concentrated on
general and comparative issues12 or has been wide-ranging and fairly practical in
nature.13 The aim of this article is to make a thorough analysis of the specific
impact of the HRA on breach of confidence as a potential privacy remedy,14
including full discussion of the implications for press freedom, drawing on insights
6Fourth Report of the National Heritage Select Committee on Privacy and Media Intrusion, Appendix
24, HC 294-II (1993).
7 See Attorney General vGuardian Newspapers (No 2) [1990] 1 AC 109, 255 (hereafter A-G v
Guardian), per Lord Keith: ‘The right to personal privacy is clearly one which the law [of confidence]
should seek to protect’; RvDepartment of Health, ex parte Source Informatics Ltd,The Times 21
January 2000, CA, per Simon Brown LJ: ‘[In cases of personal information], the concern of the law
[of confidence] is to protect the confider’s personal privacy’; RvKhan (n 3 above), in which three of
their Lordships left open the question whether English law already recognised a right to privacy; dicta
of Laws J in Hellewell vChief Constable of Derbyshire [1995] 1 WLR 804, 807 (n 105 below);
Francome vMirror Group Newspapers [1984] 1 WLR 892; Stephens vAvery [1988] Ch 449
(discussed below).
8 The Younger Committee (Report of the Committee on Privacy (1972 Cmnd 5012), Calcutt
Committee on Privacy and Related Matters, hereafter ‘Calcutt’ (1990 Cm 1102), Review of Press
Self Regulation (Cm 2135), National Heritage Select Committee Report (n 6 above) and a Lord
Chancellor’s Green Paper (CHAN J060915NJ.7/93) all proposed the introduction of statutory
measures to protect privacy.
9 See eg S. Rasaiah, ‘Current legislation, privacy and the media in the UK’ (1998) 3(5)
Communications Law 183. The Government’s introduction of a specific amendment to the HRA in
favour of press freedom (s12, discussed below) after a press outcry over Article 8 and repeated
attempts to reassure the press during the Bill’s debate are good examples (for comment see HL Deb
vol 583 col 473 18 November 1997).
10 See text to n 32 below for the text.
11 See text to n 65 below.
12 B. Markesenis, ‘Privacy, Freedom of Expression, and the Horizontal Effect of the Human Rights Bill:
Lessons from Germany’ (1999) 115 LQR 47; I. Leigh, ‘Horizontal Rights, the Human Rights Act and
Privacy: Lessons from the Commonwealth?’ (1999) 48 ICLQ 57.
13 For example, R. Singh, ‘Privacy and the Media after the Human Rights Act’ (1998) EHRLR 712; S.
Grosz and N. Braithwaite, ‘Privacy and the Human Rights Act’ in M. Hunt and R. Singh (eds) A
Practitioner’s Guide to the Impact of the Human Rights Act (Oxford: Hart, 1999) (only partially
concerned with media intrusion); Sir Brian Neill, ‘Privacy: A Challenge for the Next Century’ in
Markesenis (ed) Protecting Privacy (Oxford: Clarendon, 1999); J. Wright, ‘How Private is my Private
Life?’ in L. Betten (ed), The Human Rights Act 1998: What it Means (London: Martinus Nijhoff,
1999).
14 It concentrates on the print media but has application to all the media, although the BBC and possibly
Channel 4 will be ‘public authorities’ per s6(1) of the HRA and so bound directly by the Convention.
September 2000] Breach of Confidence as a Privacy Remedy
ßThe Modern Law Review Limited 2000 661
from other jurisdictions, in particular the jurisprudence generated by the American
‘private facts’ tort.15 It will argue that when the general principles of the
Convention are considered in conjunction with its case law it can be discerned that
the Convention does suggest that domestic law should provide a more effective
remedy against press invasions of privacy, a view which has not yet found general
acceptance.16
The general thesis of the article will be that the doctrine of confidence is able to
afford far more protection in this area than generally recognised17 but that an
enormous amount of judicial labour will be required to flesh out and give
definition to the current action, which at present lacks a clear legal profile. While
any law protecting a person from unwanted publication of personal information is
bound to become ‘a legal porcupine, which bristles with difficulties’,18 we will
suggest that workable and principled solutions to such problems can be
incrementally developed, as in other jurisdictions.19 In particular, we will argue
that the perception of inevitable conflict between free speech and privacy is
exaggerated and simplistic, and that an examination of the values underlying each
reveals them to be in many respects mutually supportive, rather than invariably
antagonistic. We will conclude that the advent of the HRA will finally give the
courts the opportunity to develop and re-balance the common law so as to provide
proper protection for human dignity and autonomy while carefully preserving the
legitimate watchdog role of the press.
A Right to ‘Privacy’ defined
Any discussion of enhancing legal protection for ‘privacy’ must indicate the sense
in which that vexed20 term is being used and in particular, seek to identify what
should count as a legally actionable invasion of it.21 A necessary first step is to
draw a distinction between what may be termed ‘substantive’ and ‘informational’
autonomy. The former denotes the individual’s interest in being able to make
certain substantive choices about personal life without state coercion22 and
therefore falls outside the direct concerns of this article. ‘Informational autonomy’,
on the other hand, refers to the individual’s interest in controlling the flow of
personal information about herself, the interest referred to by the German Supreme
Court as ‘informational self-determination’,23 the right to ‘selective disclosure’.24
15 See below, n 128. The tort had its genesis in the Warren and Brandeis reading of a number of English
decisions, including some confidence cases (Prince Albert vStrange (1849) 1 McN & G 25; Duke of
Argyll vDuchess of Argyll [1967] 1 Ch 302; Pollard v Photographic Company (1888) Ch 345), and
therefore is particularly relevant to the development of a cause of action from the same roots.
16 See notes 62–64 below and associated text.
17 See for example, D. Feldman, ‘Privacy Related Rights and their Social Value’ in R. Birks (ed)
Privacy and Loyalty (Oxford: Clarendon, 1997) 47; recognition was shown in Hellewell (n 7 above)
and Earl Spencer vUnited Kingdom 25 EHRR CD 105 (1998), discussed below.
18 Dicta from an administrative law case: RvInner London Education authority ex p Westminster City
Council [1986] 1 WLR 28.
19 Markesenis (in Markesenis n 13 above, vi) notes that privacy laws in other jurisdictions have been
developed, ‘incrementally and cautiously’ by judges.
20 See R. Wacks, ‘Introduction’ in Wacks (ed) Privacy, Volume 1 (Hong Kong: Dartmouth, 1993), xi.
21 Wacks suggests that scholars in this area should seek to ‘identify what specific interests of the
individual we think the law ought to protect’ (ibid xii).
22 For example, over matters such as abortion and sexual activity.
23 BGH 19 December 1995 BGHZ 131, 322–346.
24 E. Beardsley, ‘Privacy: Autonomy and Selective Disclosure’ in Nomos XIII 54.
The Modern Law Review [Vol. 63
662 ßThe Modern Law Review Limited 2000

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