PRIVACY AND THE PUBLIC
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb02328.x |
| Date | 01 May 1971 |
| Published date | 01 May 1971 |
| Author | G. D. S. Taylor |
PRIVACY AND
THE
PUBLIC
PRIVACY
has never excited much periodical literature
in
English
legal circles, unlike the United States where there has been
a
steady
flow since
1898
when Warren and Brandeis
wrote
their celebrated
article.’ But now Britain has seen within twelve months the
JUSTICE
Report which followed
a
lengthy studyYa
a
Bill based
thereon presented to Parliament,s and
a
special committee estab-
lished by the Government. Of these three events perhaps the most
important was the
JUSTICE
Report which reduced ponderings and
theories to the form of proposed legislation. The Younger Com-
mittee accordingly has before
it
a model and the reasoning behind
it, and the difficulties presented
or
avoided by that model must
lead to better legislation in the end.
The most difficult task which
faced
JUSTICE
in the endeavour was
that of approach.
As
it
pointed its approach could have been
to
fill gaps seen in existing remedies, for instance in defamation,
or
to
deal with the problem piecemeal in its various forms of invasion,
for instance by surveillance devices,
or
to
promote a broadly
defined right and leave it
to
the courts to develop as
a
“
common
law
”
tort.
It
was only after lengthy consideration that it chose
the third of these, and drafted a Bill which was subsequently
presented to Parliament as
Mr.
Brian Walden’s Right of Privacy
Bill.
The heart of the Bill
is
the interplay of a general and inclusively
phrased definition of privacy with a set of general and exclusive
defences. Clause
9
(1)
defines the right
of
privacy as:
‘‘
.
. .
the right of
any
person to be protected from intrusion
upon himself, his home, his family, his relationships and com-
munications with others, his property and his business affairs,
including intrusion by
(a)
spying, prying, watching
or
besetting;
(b)
the unauthorised overhearing
or
recording of spoken
(c)
the unauthorised making of visual images
;
(a)
the unauthorised reading
or
copying of documents;
(e)
the unauthorised use
or
disclosure of confidential infor-
mation,
or
of fads (including
his
name, identity
or
likeness) calculated to cause him distress, annoyance
or
embarrassment,
or
to place him in a false light;
the unauthorised appropriation of his name, identity
or
likeness
for
anothe~’8 gain.”
words;
(1)
“The
Right
of
Privaoy”
(1893)
4
Harv.L.R.
193.
Privacy
and
the
Law
(1970,
London).
First Reading November
26, 1969,
H.C.Deb.,
Vol.
792,
col.
430;
Second
Reading Debate (adjourned) January
23,
1970,
H.C.Deb.,
Vol.
793,
col.
Ml.
Report,
paras.
127
and
128.
288
MAY
1971
PRIVACY
AND
THE
PUBLIC
289
Should this right be infringed in
a
"
substantial and unreasonable
"
way, then clause
1
makes that invasion
"
actionable at the suit
of any person whose right of privacy has been so infringed." Once
the plaintiff has shown that such an invasion has taken place, then
he
is
entitled to his remedy unless the defendant
can
bring the case
within one of the defences contained in clause
8,
namely, that:
"
(a)
the defendant, having exercised all reasonable care,
neither knew
nor
intended that his conduct would con-
stitute
an
infringement of the right
of
privacy of another
person;
or
(b)
the plaintiff, expressly
or
by implication, consented to the
infringement
;
or
(c)
where the infringement was constituted by the publication
of any words
or
visual images, there were reasonable
grounds
for
belief that such publication was in the public
interest
s;
or
(d)
the defendant's acts were reasonable
or
necessary for
the protection of the person, property
or
lawful business
or
other interests of himself
or
of any other person for
whose benefit
or
on
whose instructions he committed the
infringement
;
or
(e)
the infringement
took
place in circumstances such that,
had
the action been one
for
defamation, there would
have been available to the defendant a defence of
absolute
or
qualified privilege, provided that if the
infringement was constituted by a publication in
a
news-
paper, periodical
or
book,
or
in a sound
or
television
broadcast, any defence under this paragraph shall be
available only
if
the defendant also shows that the
matters published were of public concern and their pub-
lication was
for
the public benefit;
or
(f)
the defendant acted under authority conferred upon him
by statute
or
by any other rule of law."
Mr.
Brian Walden, upon proposing the Bill, declared himself firmly
wedded to this and the only parliamentary voice raised
against the structure failed
to
suggest an alternative.' The basic
reason advanced by
JUSTICE
for the structure was the need
to
pro-
vide
a
remedy which could be adapted easily to
the
changing mores
of
a
changing society, and
at
the same time give a consistency of
principle which
it
felt to be lacking in the haphazard growth of
United States This, it was
felt,
could
not
be achieved by
altering old remedies
to
new uses. Certainly,
it
makes for
a
more
elegant law and one which potentially reaches far more abuses than
either
of
the rejected approaches. However, both the Bill and its
5
JUSTIOE'S
proposed
clause read
:
"
where the infringement
was
constituted
by the publication
of
any words
or
visual images, the publication
WEE
in
the
public interest."
8
H.C.Deb.,
Vol.
793,
col.
868.
7
Ibid.,
ml.
945.
0
Report,
para.
122.
To continue reading
Request your trial