A Potential Framework For Privacy? A Reply To Hello!
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00606.x |
| Author | Rachael Mulheron |
| Date | 01 September 2006 |
| Published date | 01 September 2006 |
THE
MODERN LAW REVIEW
Volume 69 September 2006 No 5
A Potential Framework For Privacy? A ReplyTo Hello!
Rachael Mulheron
n
In DouglasvHello! Ltd ( No 3), the Court of Appeal noted thatone rami¢cation of ‘shoehorning’
invasions of privacy intothe cause of action of breach of con¢dence is that ‘it does not fall to be
treated as a tort under English law’. In contrast, this article contends that English courts should
explicitly recognise and develop a frameworkfor a tort of privacy, and outlines one possiblever-
sionçcomprising both privacy interests and the elements of the potential tort. The framework
drawsupon longstandi ngCanadian a ndUnited States jurisprudence, as well as recent fascinating
Australasian decisions that have grappled with privacyclaims. In reality, breach of con¢dence is
becoming an unrecognizable cousin of the creature which Megarry J described in Coco vAN
Clark(Engineers)Ltd i n1969. If, however, it is to be buttressed by a judicially-createdtort of priv-
acy, then that tort’s elements must be capable of being feasibly articulatedand applied.
INTRODUCTION
However spectacular the‘showbiz weddingof the year’between Michael Douglas
and Catherine Zeta-Jones may have been in 2000, the series of legal decisions
which their acrimonious claim against Hello! Magazine has spawned in the ¢ve
years since (most recently, the Court of Appeal’s decision on18 May 2005
1
)have
been intriguing and frustrating in equal measure. Although a clai m for breach of
con¢dence was proven by the celebrity couple in respect of the publication of
unauthorised photographs taken at their wedding, it has been their unsuccessful
attempt to establish any separate tort of privacy which continues to £ag this as a
truly landmark series of decisions.
Several aspects of the Court of Appeal’s recent decision in Douglas vHello! Ltd
are particularly noteworthy. First, both its judgment and the earlier trial decision
of Lindsay J
2
demonstrate a de¢nite retreat from the much bolder statements
about the availability of a separate right of privacy which had bee n advanced
by Sedley LJ in the Court of Appeal’s earlier decision
3
declining the claimants
n
Senior Lecturer, Department of Law, Queen MaryUniversity of London. The author acknowledges
with gratitude the helpfulcomments and suggestions made by two anonymous referees upon ane ar-
lier draft.
1DouglasvHello! Ltd [2005]EWCACiv 595, [2005]Al l ER (D) 280.
2DouglasvHello! Ltd (No 3) [2003] EWHC786 (Ch) (11April 2003).
3 [2001]QB 967(Sedley, Brooke and Keene LJJ; 21 December 2000).
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(5)MLR 679^713
injunctive relief. Secondly, the Douglas ^ Zeta-Jones saga has been so long-r un-
ning that the House of Lords has had su⁄cient time to hand down two author-
itative judgments about protection of privacy in intervening periods; thus it was
that the Court of Appeal in Douglas confronted the bulwark against the develop-
ment of any new cause of action that has seemingly been put in place by the
House inWa i nw r ig ht vHome O⁄ce
4
and in Campbell vMGN Ltd.
5
In the former
caseçin the muchless glamorouscontext of a prisonvisit which involved unlaw-
fully performed strip-searchesçSedley LJ’s earlier comments in Douglas vHello!
Ltd were watered down by Lord Ho¡mann in a manner whichpurports to put a
stop to any new ‘creation of a high-level principle of invasionof privacy’
6
in Eng-
land.Thirdly, the Court of Appeal has been prepared to acceptin Douglas
7
that the
European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR) obliges English law to protect individuals from unjusti¢ed
invasions of their privacy by other individuals, and that an English court ‘should,
insofar as it can, develop the action for breach of con¢dence in such a manner as
will give e¡ect to both Article 8 [right to pr ivate and family l ife] and Article 10
[right to freedom of expression]’
Coincidentally, but not unexpectedly, the highest appellate courts in Australia
and New Zealand have also been asked to rule onthe question of a so-called tort
of privacy in recent times. In Australian Broadcasting Corp vLenah Game Meats Pty
Ltd,
8
the Australian High Court considered the very submission put forward by
Douglas and Zeta-Jonesçthat the common law should recognise a cause of
action based upon invasion of privacy. Unauthorised ¢lming of the lawful abat-
toir killing of the cutesy Australian native brush-tail possums, whilst light years
away from unauthorised photography of a show business wedding in the New
York Grand Plaza ballroom, gave rise to similar legal conundrums. Similarly, in
Hosking vRunting,
9
the New Zealand Court of Appealconsidered what common
law remedies (if any) mightbe availablewhere the plainti¡ celebrity couple com-
plained that a photographer, commissioned by the magazine New Idea, photo-
graphed their 18-month-old twins (whilst they were out in a public place with
their mother) for a magazine spread. The question was whether all sets of clai-
mantsçmovie stars, abattoir operators, and the o¡spring of television celebri-
tiesçcould allege a hitherto unrecognised and overarching common law cause
of action based upon intrusions into privacy. The many parallels in the reasoning
employed in each jurisdiction, and their not entirely consistent answers to the
question, are useful and instructive to compare.
Following a discussion of key judicial views about the willingness (or other-
wise) to recognise a separate tort of privacy, the analysis will pursue two paths. In
the following section, it will be argued that the continued reliance upon the
of America, there is no over-arching, all-embracing, cause of action for‘‘invasionof privacy’’’).
6Wa i n wr i g h t vHome O⁄ce [2003]UKHL 53, [2003] 4 All ER 969 at[30].
7 n 1 above, at [50], citing von Hannover vGermany(ECtHR, 24 June 2004), and [53].
8 (2001)208 CLR 199(Gle eson CJ,Gaudron, Gummow, Kirby and HayneJJ; Callinan J dissenting;
15 Nov 2 001).
9Hosking vRunting [2004] NZCA34 (25 Mar 2004).
A Potential Framework For Privacy?
680 rThe Modern LawReview Limited 2006
(2006) 69(5) MLR679^713
breach of con¢dence cause of action to achieveprivacy protection is £awed. How-
ever willing the courts may be to recast that cause of action as a ‘misuse of private
information’,
10
the fact remains that there are situations inwhich claimants whose
privacy interests have been intruded upon are falling between the cracks of legal
redress. Further, the breach of con¢dence cause of action is being applied inways
that greatly obfuscate its original scopeçwitnessed,for example, by the fact that,
apparently, the information does not even need to be ‘con¢dential’ any longer.To
exacerbate this unsatisfactory situation, Parliament has steadfastly refused to
assume responsibility for any type of wide-ranging statutory protection, despite
constant invitations from the judiciary (and others) to do so.T hereafter, in the
¢nal section, it will be contended that there remains room in English jurispru-
dence for the development of an overarching tort of privacy. There has, however,
been a marked lack of precision inthe case law to date about the categorisation of
those privacy interests worthy of protection. This situation must be remedied if
there is ever tobe anycoherent development of a tortof privacy. This sectionwill
discuss a possible three-fold categorisation of privacy interests (and its application
to decided cases), and will postulate a potential frameworkof elements for a pro-
posed tortof privacy. It will conclude byanalysing the di⁄cultposition of corpo-
rate claimants who are pursuing a claim that depends upon the invasion of a
‘personal right of dignity’.
The push for recognition of a common law privacy law has gained momen-
tum in recent years, due in part to the media’s obsession with celebrity lifestyles,
11
consumer-oriented programmes thatseek to ‘out’perceived businessmalpractices,
and the in£uence of modern human rights jurisprudence that refers to privacy
rights for the individual.
12
Inevitably, appellate judges in Australia, England and
New Zealand have been requested to adjudicate on the pointçand the fact that
they cannot agree is of considerable legal interest.
JUDICIAL SPARRING, ADVANCES AND RETREATS
On the face of it, the English jurisprudence militated against any hopes which
Douglas and Zeta-Jones may have possessed to sue Hello! for breach of privacy.
Statements to the e¡ect that the law provided no remedy on that basis were not
10 Campbell vMGN Ltd n5 above, at [14] (Lord Nicholls), cited with approval in DouglasvHello! Ltd
n 1 above, at [51].
11 For discussion of some English cases re celebrities’privacy,vi z,the Beckhams, Heather Mills and
Anna Ford, see: M.Thomson,‘Privacy Before and After the Human Rights Act’ (2001) 6 Tol l e y ’ s
Communications Law 180.Also see comments by KirbyJ i n Lenah Game Meatsn 8 a bove, at [188].
12 Forexample, theECHR, art 8(1),set out in the Human RightsAct1998,Schedule1 states:‘Everyone
has the right to respect for his private and family life, his home and his correspondence’; and the
International Covenanton Civil and PoliticalRights, art 17 provides: ‘No one shall be subjected to
arbitraryor unlawful interference with his privacy, family, home orcorrespondence, norto unlaw-
ful attacks on his honour or reputation.’ The impact of the Human Rights Act on any so-called
privacyright is beyond the scopeof this article, but see, in thatregard: G. Phillipson and H. Fen-
wick,‘Breach of Con¢dence as a Privacy Remedyin the Human Rights Era’ (2000) 63 MLR 660,
664^670; G. Phillipson,‘Transforming Breach of Con¢dence? Towards a Common Law Right
of Privacy under the Human Rights Act’(2003) 66 MLR 726; and discussion by Lindsay J in
DouglasvHello! Ltd [2003], n 2 above,at [186], and by the Court of Appeal, n1 above,at [47]^[53].
Rachael Mulheron
681
rThe Modern LawReview Limited 2006
(2006) 69(5)MLR 679^713
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