Privacy or Publicity? The Enduring Confusion Surrounding the American Tort of Invasion of Privacy
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb01866.x |
| Published date | 01 January 1992 |
| Date | 01 January 1992 |
| Author | David Bedingfield |
January
19921
Privacy or Publicity?
themselves, and its express consideration by the courts is thus facilitated. There
might thus be other theories that
better
describe what is, and what ought to be, talung
place.
Fourth, the discussion in the instant comment does provide some (albeit only
tentative) evidence that there
is
a
practical
difference between positivism on the
one hand and natural law on the other.M Further, this result (if correct) would also
buttress the submission in the preceding paragraph.
Finally,
it
ought to be remembered that countries differ in many respects, especially
from the historical and socio-legal points of view. Positivism is not a theory that
is writ in stone, even where the legal system of the country concerned has emerged
from the English legal heritage. Judicial attitudes must reflect the ethos and mores
of the country concerned. The extreme positivism in the English law of contract
as described and analysed in the present comment has merely underscored the need
to look beyond fixed and conventional boundaries.
Privacy
or
Publicity? The Enduring Confusion
Surrounding the American
Tort
of
Invasion
of
Privacy
David Bedingfield
*
The creation in Great Britain of a legally recognised right to ‘privacy’ is apparently
supported by everyone not currently employed by the tabloids, at least according
to the debate engendered in this journal by the curious case of
Kaye
v
Robertson.’
Professor Basil Markesinis argues that the only obstacle to enacting a comprehensive
right to privacy is the press itself, which is forcing a cowardly Parliament to stay
its hand.2 Peter Prescott QC, on the other hand, believes that at least where the
press has intruded onto private property, remedies already exist that would allow
judges to enter injunctions enforcing a right to pri~acy.~ Mr Prescott would
supplement these remedies by creating a special High Court branch to deal with
prior restraint cases, and would also create four further causes of action that he
believes would supplement existing law in such a way as to prevent the worst
journalistic invasions of pri~acy.~
64
*Barrister
of
Gray’s Inn, having previously practised law
in
Atlanta, Georgia.
See Deryck Beyleveld and Roger Brownsword, ‘The Practical Difference Between Natural-Law Theory
and Legal Positivism’ (1985)
5
Oxford Journal
ofLegal
Studies
I,
26-27 and
30.
1
[
19911 FSR 62.
2
3
4
‘Our Patchy Law of Privacy
-
Time to do Something About
It’
[1990]
53
MLR 802.
‘Kaye v
Robertson
-
A
Reply’ [I9911
54
MLR
451.
The four actions would be:
(1)
harassment, mainly by the obsessional freelance photographer who
makes
it
his business to follow celebrities;
(2)
voyeurism, exemplified by the shooting of bedroom
scenes with telephoto lenses;
(3)
commercial advertising, or the use of a person’s name or likeness
for the purpose of promoting a commercial product; and
(4)
quasi-trespass, which would allow a licensee
a cause of action where enjoyment of that licence is interfered with. Mr Prescott would allow a defence
only for stories revealing that the subject
is
guilty of a crime for which the sentence may be imprisonment.
A broader defence of ‘newsworthiness,’ in Mr Prescott’s view, would not be available.
So,
for example,
an investigative report that shows inhumane treatment of inmates at a prison, where no actual crime
was involved, would be actionable (and subject to injunction) if the information had been obtained
by stealth, or by trespass on the prison grounds, or by telephoto lens cameras that were trained on
the prison windows.
111
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