Private Circles and Public Squares: Invasion of Privacy by the Publication of ‘Private Facts’
| Published date | 01 May 1998 |
| Date | 01 May 1998 |
| DOI | http://doi.org/10.1111/1468-2230.00146 |
Private Circles and Public Squares: Invasion of Privacy
by the Publication of ‘Private Facts’
Elizabeth Paton-Simpson*
A common feature in Anglo-American formulations of privacy protection is the
concept of ‘private facts’. In the United States, where the tort of invasion of
privacy has been established for nearly a century, a truthful publication which does
not commercially exploit someone’s name or likeness is only actionable if it
reveals matters which are ‘private’.
1
In fact, the relevant tort is generally identified
as ‘invasion of privacy by publication of private facts’.
2
New Zealand courts
considering their emerging tort of privacy have looked to the American authorities
for guidance, and have echoed the maxim that only ‘private facts’ or ‘intimate
details of a person’s private life’ are protected.
3
The ‘private facts’ formulation has
been incorporated into the privacy principles applied under New Zealand’s
Broadcasting Act,
4
and has even surfaced in the context of reviewing the
suppression of evidence excluded from a criminal trial.
5
Arguments over what
constitutes a ‘private fact’ have also been raised in Canadian cases,
6
even though
the statutory privacy torts are defined broadly without reference to any such
phrase.
7
Likewise it has been contended before the English Court of Appeal that
the Broadcasting Complaints Commission could not, as a matter of law, find an
infringement of privacy where the matter published was already ‘in the public
The Modern Law Review Limited 1998 (MLR 61:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
318
* Faculty of Law, University of Auckland.
My thanks to Professor Charles Rickett for helpful comments on earlier drafts.
1 See William L. Prosser, ‘Privacy’ (1960) 48 Cal L Rev 383, 394–396; American Restatement
(Second) of the Law of Torts (hereafter cited as Restatement) § 652D, comment b, cited by the
Supreme Court in Cox Broadcasting Corp vCohn, 420 US 469, 494 (1975). However, the revisers of
Prosser’s classic textbook on torts have contended that merely because a fact occurred in a public
place or can be found in a public record does not mean it should receive widespread publicity if it
does not involve a matter of public concern; see W.P. Keeton et al,Prosser and Keeton on Torts (St
Paul: West Publishing Co, 5th ed, 1984) 859.
2 This formulation derives from Prosser’s classification of American privacy actions into four discrete
torts. See ‘Privacy’, n 1 above, 389; adopted by Restatement, § 652A. Even outside Anglo-American
law, South Africa has an action for ‘unlawful publication of privacy facts’; see Financial Mail (Pty)
Ltd vSage Holdings Ltd, 1993 (2) SA 451, 462 (App Div).
Films Ltd [1993] 1 NZLR 415, 423–425 (HC); XvAtt Gen [1994] NZFLR 433, 439 (HC).
4 See TV3 Network Services Ltd vBroadcasting Standards Authority [1995] 2 NZLR 720 (HC), re
Broadcasting Act 1989, s 4(1)(c), which requires broadcasters to maintain programme standards
consistent with individual privacy. The principles also provide limited protection for some ‘public
facts’; see n 119 below. Two new privacy principles have recently been created to fill perceived gaps
left by the ‘private facts’ formulation; see Burrows, ‘Media Law’ [1996] NZ L Rev 342, 360–361.
5Television New Zealand Ltd vR[1996] 3 NZLR 393, 395–396 (CA).
6egJohn Doe vCanadian Broadcasting Corp [1994] 2 WWR 666 (BC SC); Pierre vPacific Press
Ltd [1994] 1 WWR 23, 41 (BC CA); Ontario (Att Gen) vDieleman (1994) 117 DLR (4th) 449, 679
and 681–682 (Ont Gen Div); Parasuik vCanadian Newspapers Co [1988] 2 WWR 737, 740 (Man
QB); Bingo Enterprises Ltd vPlaxton (1986) 26 DLR (4th) 604 (Man CA).
7 eg Privacy Act, RSBC 1979, c 336, s 1(1): ‘It is a tort actionable without proof of damage, for a
person, wilfully and without claim of right, to violate the privacy of another.’
domain’.
8
The Court referred to American tort law in considering this contention,
deciding that a lapse of time could change the public status of a matter. It is likely
the American authorities will be even more influential if English courts eventually
develop a common law right of privacy.
9
The idea that a publication should only be held to invade privacy if it reveals
‘private facts’ is based on two propositions. First, it is argued or assumed that any
information which is ‘public’ should be excluded from the scope of privacy
protection. Second, it is assumed that a publication can be reduced to an assortment
of discrete facts, each of which can be classified as either ‘public’ or ‘private’. This
article challenges both these propositions, and argues that a narrow insistence on
identifying ‘private facts’ will tend to result in inadequate protection for privacy.
The first proposition is addressed in the section entitled ‘Privacy and public facts’. It
is argued that blanket exclusion of all matters which can in some sense be described
as ‘public’ is unwarranted. To avoid equivocation, including the confusion of
normative and descriptive notions, a closer analysis is needed of the reasons for
assigning the ‘public’ label. Furthermore, it is wrong to treat the labels ‘public’ and
‘private’ as all-or-nothing classifications, since the difference is a matter of degree.
These arguments are exemplified by considering the case of information on the
public record. The second proposition is addressed in the section entitled ‘Privacy
without private facts’ which argues that it is often difficult or impossible to single
out any particular ‘private fact’ in an invasive publication. A number of problems
with such an atomistic approach are identified. Further, the possibility is noted that a
publication may invade privacy in ways other than by increasing public knowledge
of facts about a person. Having identified various pitfalls in the ‘private facts’
approach, an alternative approach to invasive publications is proposed.
The concept of privacy adopted in this article is that of a condition of limited
accessibility. A number of theorists have developed and defended definitions along
these lines, including Ruth Gavison
10
and Anita L. Allen.
11
They generally
conceive of privacy as relating to limitations on ‘accessibility in the form of being
known or observed’,
12
although there are some differences in detail. It is not
necessary to resolve these differences for the purposes of this article, since the
discussion will primarily concern a core aspect of privacy which these definitions
share in common, namely the limitation of information known about an individual.
However, the possibility that an informational focus may unduly restrict the
concept of privacy will be briefly addressed and shown to add extra weight to the
case against a ‘private facts’ formulation.
This article will focus on the publication of privacy-invasive material rather than
on the manner in which information is gathered, although some of the points made
would also apply to cases of intrusion. Protection against invasive publication takes
8RvBroadcasting Complaints Commission, ex p Granada Television Ltd [1995] EMLR 163.
Presumably, the phrase was used loosely as a synonym for ‘public’. The concept of ‘the public
domain’ as developed in the law of breach of confidence cannot be transposed directly into the law
of privacy; see Raymond Wacks, Privacy and Press Freedom (London: Blackstone Press, 1995) 77–
79.
9InRvKhan (Sultan) [1996] 3 WLR 162 (HL), three of five Lords reserved their view on whether a
general right of privacy exists in English law. See also Val Collins, ‘Privacy in the United Kingdom:
a Right Conferred by Europe?’ (1996) 1 Int J L & Info Tech 290; Patrick Milmo, ‘Human Rights,
Privacy and the Press’ (1997) 147 NLJ 1631.
10 ‘Privacy and the Limits of Law’ (1980) 89 Yale LJ 421.
11 Uneasy Access: Privacy for Women in a Free Society (New Jersey: Rowman & Littlefield, 1988).
See also Madison Powers, ‘A Cognitive Access Definition of Privacy’ (1996) 15 Law and Phil 369.
12 Ruth Gavison, ‘Feminism and the Public/Private Distinction’ (1992) 45 Stan L Rev 1, 6.
May 1998] Invasion of Privacy by the Publication of Private Facts
The Modern Law Review Limited 1998 319
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