3. Approaches to privacy in other common law countries

Updates and background for this project (Digest)

• Extending breach of confidence
• Developing a tort of invasion of privacy
• Statutory intervention

• Extending breach of confidence to invasions of privacy (associated particularly with English law);
• Developing a common law tort of privacy (associated with the common law of New Zealand); and
• Enacting a cause of action for invasion of privacy (associated with some Canadian Provinces and recommended in Ireland).

3.2 It needs to be stressed that all jurisdictions whose law is surveyed in the chapter have human rights instruments of one type or another. England and New Zealand have human rights statutes,¹ while the Canadian and Irish constitutions contain guarantees of rights.² Any proposed privacy legislation in New South Wales would, of course, take effect in the absence of such legislation, but subject to the constitutional implication of freedom of political speech.³

EXTENDING BREACH OF CONFIDENCE
3.3 There is a public interest in the maintenance of confidences.⁴ The common law recognises this where the confidence arises, expressly or impliedly, out of contract⁵ or, less clearly, out of a right of property.⁶ Breach of confidence is not, however, traditionally seen as a “wrong” at common law that generates liability in tort.⁷ Equity, however, protects confidences independently of contract or property in situations creating, very broadly, “an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained”.⁸ The English authorities have tended to generalise the basis on which equity intervened to protect confidences into a “broad general principle” underlying the protection of all confidential information.⁹ In Attorney-General v Guardian Newspapers Ltd (No 2) Lord Goff, while disclaiming any attempt at being definitive, stated that principle as follows:

[A] duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing that information to others.¹⁰

• the information must have the necessary quality of confidence about it;
• the information must be communicated in circumstances importing an obligation of confidence; and
• there must be an unauthorised use or disclosure of the information.¹¹

[A]lthough the law’s protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply … to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.¹³

This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature … Now the law imposes a “duty of confidence” whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. ¹⁵

3.8 This second development is attributable to the incorporation into English law of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”)¹⁷ by the Human Rights Act 1998 (UK) in October 2002. Article 8 of the ECHR guarantees to everyone “the right to respect for his private and family life, his home and his correspondence”. The effect of this article is to require the protection of private information even in litigation between private parties, rather than only in litigation against the State.¹⁸ The English courts do this by using the action for breach of confidence to remedy the unjustified publication of personal information. The result, is that:

Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.¹⁹

3.10 In its recent decision in Ash v McKennitt, the Court of Appeal said that the rules of the English law of breach of confidence are now found in the jurisprudence of articles 8 and 10 of the ECHR.²² This means that, although there is no tort of invasion of privacy,²³ where a complainant brings an action in respect of wrongful publication of private information, the court has to decide, first, if the information is private such that it is in principle protected by article 8. If it is, then, secondly, the court must decide if “the interest of the owner of the private information” must “yield to the right of freedom of expression conferred on the publisher by article 10”.²⁴ The second inquiry involves the balancing of articles 8 and 10, to which the following principles apply:

i) Neither article has as such precedence over the other.

ii) Where conflict arises between the values under Articles 8 and 10, an “intense focus” is necessary upon the comparative importance of the specific rights being claimed in the individual case.

iii) The court must take into account the justifications for interfering with or restricting each right.

iv) So too, the proportionality test must be applied to each.²⁵

Douglas and Others v Hello! Ltd

3.12 Proceedings were originally commenced in the High Court, which granted an interim injunction to Michael Douglas and Catherine Zeta-Jones preventing the defendants, the publishers of Hello! magazine, from publishing photographs of their “celebrity” wedding. The injunction was granted by Justice Buckley and continued by Justice Hunt. The reasons for granting the injunction included the finding that publication of the photographs would constitute a breach of confidence. The plaintiffs had given exclusive rights to OK! magazine to publish articles and photographs of their wedding and had taken meticulous steps to ensure that no unauthorised photos could be taken. Despite the stringent security measures put in place, a free-lance photographer managed to take unauthorised photos, which he sold to Hello!. The defendants appealed the granting of the injunction.

3.13 On appeal, the Court of Appeal discharged the injunction. Although the Court agreed with Justice Hunt that a cause of action in breach of confidence would probably succeed at trial, the injunction was discharged on the grounds that the balance of convenience favoured publication, and that damages or an account of profits would be sufficient remedy for the plaintiffs in the event they were successful.²⁸

3.14 In the course of its judgment discharging the injunction, the Court considered the question, “Is there today a right of privacy in English law?”. Lord Justice Sedley gave the strongest support to a separate right of privacy:

The courts have done what they can, using such legal tools as were to hand, to stop the more outrageous invasions of individuals’ privacy; but they have felt unable to articulate their measures as a discrete principle of law. Nevertheless, we have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy.²⁹

3.16 The Court of Appeal held that the Human Rights Act 1998 (UK) did not create any new cause of action between private persons for breach of privacy.³⁵ Nonetheless, the Court held that, “in so far as private information is concerned”, the “cause of action formerly described as breach of confidence” had to be adopted as a vehicle for giving effect to rights arising under Articles 8 and 10 of the ECHR.³⁶ This was required by the Human Rights Act 1998 (UK). It held that the court’s proper course was to develop the common law to protect rights of privacy under Article 8, even if that was at a cost of some restriction on the defendant’s right to freedom of speech under Article 10. The Court commented that they could not pretend that they found it satisfactory “to shoehorn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion”.³⁷

3.17 The Court of Appeal also reaffirmed that, for a duty of confidence to arise, the information had to be confidential in nature and either imparted in circumstances carrying a duty of confidence or plainly confidential or private; and that the test was whether the defendant knew or ought to have known that the plaintiffs had a reasonable expectation that the information would remain private.³⁸ Private information included personal information not intended to be made public. The Court also held that special considerations attached to photographs, which would not necessarily cease to be “confidential information” once in the public domain.³⁹

3.18 The plaintiffs’ cross-appeal on quantum was dismissed for the reason that any damages based on a notional licence fee payable by the defendant would result in unjust enrichment. They would have been entitled, however, to an account of profits if the defendant had made a profit on the unauthorised publication of the photos.⁴⁰

3.19 The Douglas series of decisions are important in English law as illustrating:

• the disinclination to establish any stand-alone right of privacy in English law;⁴¹ and
• the movement away from the requirement of the traditional breach of confidence action that personal information must have been imparted or obtained in circumstances importing an obligation of confidence. As Lord Justice Sedley held:
• [T]he law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.⁴²

3.21 Venables v News Group Newspapers Ltd⁴⁴ is a further illustration of this second point. In that case, Dame Elizabeth Butler-Sloss granted an injunction against “all the world”, preventing publication of information about the identity of the two boys convicted of the widely publicised murder of James Bulger. The duty of confidence arose in equity independently of a transaction or relationship between the parties. The claimants sought to continue reporting restrictions after they had turned 18 years of age. The defendants were three large news groups, News Group Newspapers, Associated Newspapers and MGN, who, Dame Elizabeth Butler-Sloss commented, did not represent the newspaper industry nor the media generally.

Campbell v Mirror Group Newspapers Ltd

3.22 In Campbell v Mirror Group Newspapers Ltd, the plaintiff brought an action for breach of confidence, on the basis of disclosure of private facts.⁴⁵ The defendant published photographs showing the plaintiff, “supermodel” Naomi Campbell, leaving a Narcotics Anonymous meeting and an accompanying article, referring to her battle to overcome drug addiction. Ms Campbell conceded that, because she had lied about her drug use, the Mirror was entitled to publish the fact that she was a drug addict and receiving treatment for her addiction.⁴⁶ Her claim for damages for breach of confidence and compensation under the Data Protection Act 1998 (UK) related only to the additional information conveyed by the articles and the photographs. She argued that information that the therapy was being obtained through Narcotics Anonymous and the details of her attendance at meetings “were private and confidential matters and that there was no overriding public interest justifying their publication”.⁴⁷

3.23 At the trial in the Queen’s Bench Division,⁴⁸ Lord Justice Morland found that the source of the information was either a member of the plaintiff’s staff or entourage, or someone attending Narcotics Anonymous and therefore must have been imparted in circumstances importing an obligation of confidence. In determining whether the details published had “the necessary quality of confidence about them” for the action to succeed, his Lordship applied the test of what is private laid down by Chief Justice Gleeson in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.⁴⁹ Accordingly, his Lordship found that information revealing details of the plaintiff’s attendance at Narcotics Anonymous meetings was easily identifiable as “private” and that “disclosure of that information would be highly offensive to a reasonable person of ordinary sensibilities”.⁵⁰ He gave weight to the fact that the plaintiff had deliberately misled the public in denying that she used drugs and that therefore the Mirror was entitled to put the public record straight.⁵¹ Nevertheless, in striking a balance between Article 8 of the ECHR (protection of privacy) and article 10 (freedom of speech), he found in favour of the plaintiff that there had been a breach of confidentiality.⁵²

3.24 On appeal by the Mirror, the Court of Appeal reversed this decision.⁵³ The respondent again conceded that, because she had publicly claimed not to take drugs, publication of the facts of her drug addiction was justified in the public interest, so as to correct the public record. Given that concession, the Court held that the peripheral disclosure of the respondent’s attendance at Narcotics Anonymous meetings was not, in its context, sufficiently significant to amount to a breach of duty of confidence owed to her. The Court did not consider that “a reasonable person of ordinary sensibilities, on reading that Miss Campbell was a drug addict, would find it highly offensive, or even offensive, that the Mirror also disclosed that she was attending meetings of Narcotics Anonymous”.⁵⁴

3.25 The Court observed that in the line of cases since the Human Rights Act came into force, information has been described as “confidential” not where it has been confided by one person to another, but where it relates to an aspect of a person’s private life that he or she does not choose to make public. The Court considered that “the unjustifiable publication of such information would better be described as breach of privacy rather than breach of confidence”.⁵⁵

3.26 Ms Campbell appealed the Court of Appeal’s decision to the House of Lords.⁵⁶ By a majority of three to two, the House of Lords reversed the decision of the Court of Appeal and restored the order of Justice Morland. The House of Lords observed that the traditional classification of breach of confidence as a form of unconscionable conduct, similar to a breach of trust, is now misleading and outdated. It affirmed that the courts will protect wrongful use of private information, even though the information is not “confidential” in the sense that it has been disclosed by one person to another in circumstances importing an obligation of confidence.⁵⁷ It is only necessary for the duty of confidence to arise that a person subject to the duty has received information that he or she knows, or ought to know, is fairly and reasonably to be regarded as confidential and the subject of the information can reasonably expect his or her privacy to be protected.⁵⁸ Lord Nicholls, who dissented from the majority judgment on the facts, considered the continuing use of the phrase “duty of confidence” and the description of the information as “confidential” to be awkward and that “[t]he essence of the tort is better encapsulated now as misuse of private information”.⁵⁹ Nevertheless, the majority of the Court was not prepared to hold that a separate cause of action for invasion of privacy exists in English law. Their Lordships were, however, agreed that, once information is identified as “private”,⁶⁰ it was necessary for the court to balance the rights of privacy and freedom of expression in the ECHR, neither right having pre-eminence over the other.⁶¹

3.27 In doing so, a majority of the House held that, on the facts, the balance came down in favour of Ms Campbell. The majority agreed that the press must be free to expose the truth and put the record straight, particularly where a matter of serious public concern was involved such as the possession and use of illegal drugs.⁶² However, they held that it was not necessary for those purposes to publish any further information, especially if that might jeopardise the continued success of Ms Campbell’s treatment for drug addiction. The “right of the public to receive information about the details of her treatment was of a much lower order than the undoubted right to know that she was misleading the public when she said that she did not take drugs.”⁶³ Reporting the fact that drug addiction treatment was being provided by Narcotics Anonymous and details of that treatment, “went significantly beyond the publication of the fact that she was receiving therapy or that she was engaged in a course of therapy with NA”.⁶⁴

3.28 The majority held that the breach of privacy was compounded by the publication of photographs accompanying the article and was “more than enough to outweigh the right to freedom of expression” that the defendants were asserting in the case.⁶⁵ The photographs contributed both to the revelation and the harm that might be done, having the potential to deter Ms Campbell, and possibly others, from continuing treatment. The potential for the disclosures to cause harm was seen as “an important factor to be taken into account in the assessment of the extent of the restriction that was needed to protect Ms Campbell’s right to privacy”.⁶⁶ The House held that the tests that courts must apply are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy.⁶⁷

Current approach to privacy in English law

3.29 In summary, while there is no domestic tort of invasion of privacy in English law,⁶⁸ “confidentiality” and “privacy” are now both protected in the action breach of confidence. This action is firmly within the framework of Articles 8 and 10 of the ECHR.⁶⁹ Notwithstanding the contrary view of the English Court of Appeal,⁷⁰ there now seems to be “two quite distinct versions of the tort of breach of confidence” in English law⁷¹ – one the traditional version linked to Coco v AN Clark (Engineers) Ltd,⁷² the other the expanded action in cases like Campbell. The first version “reflects the historical approach to the law of torts with the focus on wrongful conduct whereas the second reflects more the impact of a developing rights-based approach”.⁷³

DEVELOPING A TORT OF INVASION OF PRIVACY

New Zealand

3.30 In New Zealand, privacy is protected at common law and by statute.⁷⁴ Unlike England, the common law of New Zealand recognises the existence of a separate cause of action for invasion of privacy by giving publicity to private and personal information. The action is generally referred to as a “tort”. The leading decision is that of the Court of Appeal in Hosking v Runting (“Hosking”) in 2004.⁷⁵

Hosking v Runting

3.31 The proceedings in Hosking were first brought in the New Zealand High Court.⁷⁶ The complaint arose from the photographing of the appellants’ infant daughters on a public footpath, without the appellants’ consent. The cause of action pleaded was a breach of the children’s right of privacy. The hearing focused on whether a tort of invasion of privacy exists in New Zealand and, if so, whether it covered the particular facts.

3.32 Justice Randerson reviewed a number of New Zealand authorities that had “cautiously recognised a separate tort of invasion of privacy”.⁷⁷ His Honour ultimately found that these decisions were difficult to support and held that the law in New Zealand did not recognise a privacy tort. He concluded that existing remedies were likely to be sufficient to meet most claims to privacy based on public disclosure of private information and that any gaps in privacy law should be addressed by legislation. He was also influenced by the fact that the Bill of Rights had deliberately excluded a broad protection of privacy rights. His Honour took the view that the approach taken by the legislature on privacy issues suggests caution towards “creating new law in this field”. In the course of his judgment, Justice Randerson indicated his approval of the United Kingdom approach of developing the action for breach of confidence to protect personal privacy through the public disclosure of private information where it is warranted.⁷⁸ The Court found in favour of the defendants and the plaintiffs appealed to the Court of Appeal.

3.33 The Court of Appeal reviewed Justice Randerson’s conclusion that a free-standing tort of invasion of privacy does not exist in New Zealand. The Court also analysed the United Kingdom breach of confidence cases. It concluded that it made more sense to recognise that confidence and privacy, while capable of overlapping, are essentially different concepts:

Breach of confidence, being an equitable concept, is conscience based. Invasion of privacy is a common law wrong which is founded on the harm done to the plaintiff by conduct which can reasonably be regarded as offensive to human values.⁷⁹

3.35 The Court emphasised, however, that it was not thereby to be taken as establishing “a general cause of action encompassing all conduct that may be described as invasion of privacy”.⁸¹ In its opinion, there could be “no such broad ground of liability.”⁸² If a “high-level and wide tort of invasion of privacy” were to be introduced, this should be at the instigation of the legislature, not the courts.⁸³

3.36 Rather, the Court held that a case had been made for “a right of action for breach of privacy by giving publicity to private and personal information”.⁸⁴ This view was reached on the following grounds:

• It is essentially the position reached in the United Kingdom under the breach of confidence cause of action.
• It is consistent with New Zealand’s obligations under the International Covenant and UNCROC.
• It is a development recognised as open by the Law Commission.
• It is workable as demonstrated by the experience of the Broadcasting Standards Authority and similar British tribunals.
• It enables competing values to be reconciled.
• It can accommodate interests at different levels so as to take account of the position of children.
• It avoids distortion of the elements of the action for breach of confidence.
• It enables New Zealand to draw upon extensive United States experience.
• It will allow the law to develop with a direct focus on the legitimate protection of privacy, without the need to be related to issues of trust and confidence.⁸⁵

1. The existence of facts in respect of which there is a reasonable expectation of privacy; and

2. Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

3.39 On the facts of this case, the Court held that neither the Hoskings, nor the children themselves, had a reasonable expectation of privacy in the photographs, taken as they were in a public place, and because they disclosed nothing more “than could have been observed by any member of the public in Newmarket on that particular day”.⁹¹ The Court was not convinced that “a person of ordinary sensibilities would find the publication of [the] photographs highly offensive or objectionable even bearing in mind that young children are involved”.⁹² The Court was also of the view that the action would be “overwhelmed” by the right of freedom of expression; and, further, that there was no evidence to suggest that the Hoskings’ children would be placed at serious risk by their photographs being published.⁹³ Accordingly, the plaintiffs’ appeal was dismissed.

Bill of Rights

3.40 Unlike Australia, New Zealand has a Bill of Rights. The New Zealand Bill of Rights Act 1990 (NZ) was enacted to give effect to the rights recognised in the International Covenant on Civil and Political Rights (ICCPR),⁹⁴ to which New Zealand is a signatory. However, the Bill of Rights omits the provisions of Article 17 of the ICCPR, which protects rights to privacy. In Hosking Justices Gault and Blanchard found this omission to be pragmatic and no reflection on the importance attributed to privacy rights in New Zealand law:

We do not accept that omission from the Bill of Rights Act can be taken as legislative rejection of privacy as an internationally recognised fundamental value. It is understandable that, in an enactment focussed more on processes than substantive rights, privacy law, which has a very wide scope, would be left for incremental development … Issues of definition, scope of protection and relationship with other societal values clearly would have been such as to defeat any attempt to comprehensively delineate the legal principle.⁹⁵

STATUTORY INTERVENTION

Privacy legislation in the Canadian Provinces

3.42 Four Canadian Provinces, British Columbia, Manitoba, Saskatchewan and Newfoundland have enacted Privacy Acts, establishing a cause of action for invasion of privacy.⁹⁷ All four Privacy Acts create a tort of “violation of privacy”, actionable without proof of damage. The British Columbia legislation takes a slightly different approach. Its Privacy Act creates two separate torts: violation of privacy⁹⁸ and unauthorised use of the name or portrait of another⁹⁹ (with no mention of appropriation of voice of another). The other three jurisdictions include the appropriation of name, likeness or voice within the general tort of violation of privacy.¹⁰⁰ All four statutes are relatively brief and straightforward.

3.43 The Manitoba regime differs from the other three in the elements of the violation of privacy that will found an action in tort. In Manitoba, the violation must be substantial, unreasonable and without a claim of right. In the other three provinces, the violation must be wilful and without a claim of right. The British Columbia Court of Appeal has interpreted “claim of right” to mean “an honest belief in a state of facts which, if it existed, would be a legal justification or excuse”.¹⁰¹

3.44 Whereas the Manitoba statute positions considerations of reasonableness in relation to the conduct of the violator of privacy, in British Columbia, and Newfoundland, “reasonableness” is a measure of a person’s entitlement to privacy. The Privacy Acts of these two Provinces provide that the nature and degree of privacy to which a person is entitled is that which is reasonable in the circumstances having regard to the lawful interests of others.¹⁰² Saskatchewan does not include the concept of reasonableness at all in its Privacy Act.

3.45 Without limiting the general nature of the tort, all four statutes give examples of what might constitute a violation of privacy. Manitoba, Saskatchewan and Newfoundland cite as examples: surveillance; listening to or recording a conversation; unauthorised use of a person’s name, likeness or voice; and use of personal documents.¹⁰³ British Columbia cites as examples of violation of privacy eavesdropping and surveillance.¹⁰⁴

3.46 In the British Columbia Privacy Act, rather than providing defences to the tort of violation of privacy, the legislation excepts certain acts or conduct from amounting to actionable violations of privacy. An act or conduct is not a violation of privacy if it was: consented to; incidental to defending person or property; required by law or court process or order; or done by a peace officer or public officer in the course of duty.¹⁰⁵ Unless the material was obtained by violating privacy; publishing material is not itself a violation of privacy if it was: of public interest; fair comment on a matter of public interest; or privileged.¹⁰⁶

3.47 The Manitoba, Saskatchewan and Newfoundland Privacy Acts provide defences to the tort. In all three, it is a defence to show that: there was express or implied consent; defence of person, property or other interest was involved; the defendant acted under lawful authority; or the defendant was a peace officer or public officer acting in the course of duty.¹⁰⁷ Manitoba also makes it a defence to show that the defendant neither knew, nor should reasonably have known, that the act, conduct or publication would have violated privacy.¹⁰⁸ The Saskatchewan statute provides an additional defence that the violation was necessary for, and incidental to, newsgathering, and reasonable in the circumstances.¹⁰⁹

3.48 In addition, where the violation related to publication, it is a defence in all three jurisdictions to show that the publication was: in the public interest; fair comment on a matter of public interest; or privileged.¹¹⁰ Saskatchewan and Newfoundland, but not Manitoba, qualify these publication defences by providing that the material published must not have been obtained by violating privacy.¹¹¹

3.49 There have been relatively few actions brought under the Privacy Acts, with British Columbia recording the most number of cases.¹¹² In three out of every four cases, the defendant has successfully defended the action¹¹³ and in those cases where the plaintiff has been successful, by and large, damage recovery has been “staggeringly low”.¹¹⁴ Cases successfully defended include:¹¹⁵ actions brought against a statutory tribunal or regulatory body investigating an individual in good faith, and in the course of its duties;¹¹⁶ televised material of picketing in front of the plaintiff’s business, obtained from the plaintiff’s parking lot;¹¹⁷ placement of a tracking device on a husband’s car to obtain evidence for the wife in divorce proceedings;¹¹⁸ the defendant’s circulation of a topless photo of the plaintiff, found in his jacket pocket, to mutual acquaintances;¹¹⁹ and video surveillance of a plaintiff to obtain evidence testing her credibility in a personal injury case.¹²⁰

3.50 In the case involving televising the picketing of the plaintiff’s business, the Court held that the “character of the property where the act or conduct complained of took place is highly relevant to the question of what constitutes a reasonable expectation of privacy.”¹²¹ Justice Lysyk, dismissing an action for alleged invasion of privacy by the camera crew, emphasised that the filming had occurred during daylight, in a parking lot exposed to the passing thoroughfare of a busy commercial neighbourhood. This was held to justify a finding that the plaintiff had no reasonable expectation of privacy in the circumstances.

Ireland

3.51 The Privacy Bill 2006, when passed, will establish in Irish law a statutory “tort of violation of privacy” of an individual.¹²² It was presented in the Irish Parliament on 7 July 2006, but no date for the Second Stage of the passage of this legislation through parliament has yet been set. The Bill reflects the recommendations of a Working Group on Privacy, constituted in 2005 to review Ireland’s law of privacy.¹²³ The Working Group concluded that it was undesirable not to have any clearly defined and comprehensive cause of action in order to provide a definite remedy for invasions of privacy interests. The Working Group also concluded that without a clearly defined cause of action, it was difficult for people to predict whether their conduct would give rise to legal liability for invasion of privacy. The Working Group was influenced in their recommendations by the protection of privacy provided by Article 8 of the ECHR, and the development of these protections by the European Court of Human Rights.¹²⁴

3.52 The Working Group observed that the Constitution of Ireland conferred rights to privacy, and that this constitutional protection had been widely regarded as providing the most likely foundation for the development of a common law tort of breach of privacy.¹²⁵ The Working Group concluded that Irish law, “by virtue of these constitutional protections, affords clear and established remedies against the State for intrusions on privacy interest”.¹²⁶ However, it also concluded that the nature and extent of the remedies remains unclear.¹²⁷ In particular, the Working Group was troubled by the lack of clarity as to whether a cause of action for breach of constitutional rights to privacy would be confined to intentional interferences with privacy or would encompass negligent interferences, or whether the defendant’s bona fide belief that he or she was not acting unlawfully in intruding on another’s private affairs would afford a defence.¹²⁸

3.53 The Working Group also felt that difficulties were created by the fact that the Irish Constitution, unlike many other Bills of Rights, imposes obligations on individual citizens, not just the State and its representatives. The effect of this is that private persons could be the subject of a claim for injunctive relief or damages for breach of constitutional rights to privacy. The Working Group observed that there are no reported cases, in either the High Court or the Supreme Court, in which a cause of action for violation of privacy interests against private persons has succeeded. The precise principles governing this cause of action therefore remain unclear and make it difficult to define the circumstances in which invasions of privacy may be justified.¹²⁹ For example, the Working Group conjectured that reasonable actions taken in reporting on matters of public importance or exposing iniquity would most likely be immune from claims by private individuals that their privacy had been violated. However, this is not clear and “the precise constitutional route to that conclusion is a matter of some potential debate”.¹³⁰

3.54 The Working Group concluded that “the calculation of the proper balance between the rights of citizens who assert breaches of their privacy against the State, and those who seek to recover damages for such breaches against other citizens, may involve quite different considerations”.¹³¹ It further concluded that an individual cannot presently reliably predict whether his or her actions would be found to be in breach of the constitutional right to privacy.¹³²

3.55 This uncertainty, together with the uncertainty attendant on many aspects of statutory and common law protections of privacy in Irish law, led the Working Group to recommend the introduction of a statutory tort of invasion of privacy. It recommended that such a statutory cause of action be limited in its scope to conduct that was deliberate and intentional, and that it be combined with a statutory description of defences available in response to a claim of violation of privacy.

3.56 The tort as formulated in the Privacy Bill would be actionable without proof of special damage¹³³ but limited in its scope to conduct that was deliberate and intentional, and without lawful authority.¹³⁴ In general terms, the privacy to which an individual is entitled is “that which is reasonable in all the circumstances having regard to the rights of others and to the requirements of public order, public morality and the common good”.¹³⁵ These latter three phrases are not defined and will no doubt be judicially interpreted in cases brought under the Act if passed.

3.57 Specific situations are prescribed in the Bill as violations of privacy. These include:

• subjecting a person to surveillance (whether or not effected by trespassing on the person’s property);¹³⁶
• disclosing the fruits of surveillance;¹³⁷
• using the identity of a person without his or her consent in advertising or other promotional actions; or for financial gain;¹³⁸ and
• disclosing personal records concerning the individual or information gained from them.¹³⁹

3.59 There are a number of defences identified in the Bill as being available to a privacy action where the defendant can prove that the act in question:

• was done lawfully to defend or protect a person or property;
• was authorised or required by law or by a court;
• was that of a public servant acting, or reasonably believing themselves to be acting, in the course of his or her duties; or
• involved the installation or operation of a surveillance system for a lawful purpose or for protection, or for prevention or detection of a crime.¹⁴³

3.61 A conference on journalism organised by the National Union of Journalism revealed that the industry holds some fears as to the effect the new privacy laws will have on it. Such fears include that: “tight new rules could lead to prosecution of investigative journalists seeking information”; “journalists who persistently phone or ‘doorstep’ people as part of their investigations could face prosecution for violation of privacy”; “day -to-day journalistic activities - including telephone calls, emails and direct approaches to subjects of articles - could also lead to allegations of harassment and trespass against journalists”.¹⁴⁴ Andrea Martin, a media law specialist who addressed the conference, stated that the Bill would make newsgathering much more complicated and had the potential to inhibit “legitimate journalistic investigation and the exercise of the right to freedom of expression, due to the lack of clarity and failure of the bill to set out comprehensively the public interest factors”.¹⁴⁵

3.62 Geraldine Kennedy, editor of the Irish Times, told the conference that the Bill would act as a “gagging writ” on “good investigative journalism”. She argued that the courts should continue to deal with breaches of privacy on a case-by-case basis rather then enact legislation that “could have unforeseen effects on the effective functioning of the media” and “the rightful exercise of the right to freedom of expression”.

3.63 Another point of contention among journalists was the provision in the Bill allowing a court hearing any action in tort to order that the hearing be closed to the public, for the purpose of protecting a person’s privacy.¹⁴⁶ The Chair of the Irish Executive Council of the National Union of Journalists, Ronan Brady, described this as “a serious threat to democracy”.

1. See Human Rights Act 1998 (UK) and New Zealand Bill of Rights Act 1990 (NZ) (which does not, however, contain an express right of privacy).

2. See Canadian Charter of Rights and Freedoms (where a general privacy right is derived from specific sections of the Charter, especially s 2, 7 and 8: for a recent example, see Ruby v Canada [2002] 4 SCR 4); and Constitution (Ireland) (where a right of privacy is again implied from other specific constitutional provisions: see Law Reform Commission of Ireland, Privacy: Surveillance and the Interception of Communications, Report No 57 (1998), [3.20]-[[3.34]).

3. See para 1.49.

4. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281 (Lord Goff).

5. See F Gurry, Breach of Confidence (Clarendon Press, 1984), 28-35.

6. Gurry 46-56. The famous case of Prince Albert v Strange (1849) 2 De Gex & Sim 652, 64 ER 293; (on appeal) (1849) 1 Mac & G 25, 41 ER 1171, discussed in para 2.77, was founded on property and equity.

7. Gurry 56-57. In 1981, the Law Commission proposed a statutory tort of breach of confidence: see England and Wales, Law Commission, Breach of Confidence, Report No 110 (Cmnd 8388, 1981) [6.5]. The influence of tort on breach of confidence is now increasingly recognised in England (see A Dugdale (gen ed), Clerk & Linsdell on Torts (18th ed, Sweet & Maxwell, 2000) ch 27), and in Ash v McKennitt [2006] EWCA 1714, [8], the Court of Appeal refers to the “tort of breach of confidence”.

8. Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414, 438 (Deane J). See also Seager v Copydex Ltd [1967] 1 WLR 923, 931 (Lord Denning MR).

9. Gurry ch 2. The source of the duty in question may still be important in Australian law: see R Meagher, D Heydon and M Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, Butterworths LexisNexis, 2002) [41-035] (“Meagher, Gummow and Lehane”).

10. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281.

11. Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47. For the position in Australia, see Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Cummunity Services and Health (1990) 22 FCR 73, 87 (Gummow J).

12. For Australian understandings, see Meagher, Gummow and Lehane, [41-050].

13. Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 282.

14. Campbell v MGN Ltd [2004] 2 AC 457, [46] (Lord Hoffman).

15. Campbell v MGN Ltd [2004] 2 AC 457, [14]. See also at [44], [46]-[48] (Lord Hoffman).

16. See para 2.79-2.85.

17. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, <www.echr.coe.int> at 10 January 2007 (entered into force on 3 September 1953).

18. Campbell v MGN [2004] 2 AC 457, [50] (Lord Hoffman).

19. Campbell v MGN [2004] 2 AC 457, [51] (Lord Hoffman).

20. See para 3.5.

21. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [86] (Lord Hoffmann).

22. Ash v McKennitt [2006] EWCA 1714 (“Ash”).

23. Ash [8].

24. Ash [11].

25. Ash [46], applying the approach of Eady J at first instance: McKennitt v Ash [2005] EWHC 3003, [48]. In Douglas v Hello! Ltd [2001] QB 867 at [137] Sedley LJ indicated that “the outcome … is determined principally by considerations of proportionality”.

26. Douglas v Hello! Ltd [2001] QB 967; [2003] EWHC 786; [2006] QB 125.

27. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457.

28. Douglas v Hello! Ltd [2001] QB 967 (Brooke, Sedley and Keene LJJ).

29. Douglas v Hello! Ltd [2001] QB 967, [110]. See also Keene LJ, [166].

30. Douglas v Hello! Ltd (No 3) [2003] EWHC 786.

31. Wainwright v Home Office [2004] 2 AC 406. See para 2.68-2.76.

32. A v B [2003] QB 195.

33. Douglas v Hello! Ltd (No 3) [2003] EWHC 786, [229].

34. Douglas v Hello! Ltd (No 3) [2003] EWHC 786, [229].

35. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457,

36. Douglas v Hello! Ltd (No 3) [2006] QB 125, [52]-[53].

37. Douglas v Hello! Ltd (No 3) [2006] QB 125, [54].

38. Douglas v Hello! Ltd (No 3) [2006] QB 125, [104]-[105].

39. Douglas v Hello! Ltd (No 3) [2006] QB 125, [106]-[107]. See also N Moreham, “Privacy in Public Places” [2006] Cambridge Law Journal 606, 613-617.

40. Douglas and Others v Hello! Ltd (No 3) [2006] QB 125, [247]-[249]. By majority, the House of Lords reversed the decision of the Court of Appeal so far as it related to the claim by OK! against Hello!: see Douglas and Others v Hello! Ltd [2007] UKHL 21.

41. See R Mulheron, “A potential framework for privacy? A reply to Hello!” (2006) 69 Modern Law Review 679, 679.

42. Douglas and Others v Hello! Ltd [2001] QB 967, [126].

43. Douglas and Others v Hello! Ltd [2001] QB 967, [166] (Keene LJ).

44. Venables v News Group Newspapers Ltd [2001] 1 All ER 908.

45. Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499.

46. Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499, [4].

47. Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499, [4].

48. Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499.

49. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199) [42]: “The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private” (Gleeson CJ).

50. Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499, [40]. His Lordship also relied on the guideline test given by Lord Woolf CJ in A v B plc [2003] QB 195 in finding that “there existed a private interest worthy of protection”. The Court of Appeal in Campbell v Mirror Group Newspapers Ltd [2003] QB 633, [40] commented that “when Lord Woolf spoke of the public having ‘an understandable and so a legitimate interest in being told’ information, even including trivial facts, about a public figure, he was not speaking of private facts which a fair-minded person would consider it offensive to disclose”.

51. Campbell v Mirror Group Newspapers Ltd [2002] EWHC 499 (QB), [68]-[69].

52. The Court also found for the plaintiff in respect of her alternative cause of action brought under the Data Protection Act 1998 (UK).

53. Campbell v Mirror Group Newspapers Ltd [2003] QB 633.

54. Campbell v Mirror Group Newspapers Ltd [2003] QB 633, [54]. The Court made it clear that the fact that a person is famous does not mean that his or her private life can be laid bare by the media: at [41].

55. Campbell v Mirror Group Newspapers Ltd [2003] QB 633, [70].

56. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457.

57. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [13] (Lord Nicholls).

58. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [14] (Lord Nicholls), [47] (Lord Hoffman), [85] (Lord Hope).

59. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [14] (Lord Nicholls). This draws upon the tort of wrongful publication of private facts developed in the United States of America.

60. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [137] (Baroness Hale), based on a test of whether the plaintiff had had a “reasonable expectation of privacy”.

61. See para 3.10.

62. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [151]-[152] (Baroness Hale).

63. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [117] (Lord Hope). Lord Hope referred to Dudgeon v United Kingdom (1981) 4 EHRR 149, [52] where the European Court said that the more intimate the aspects of private life which are being interfered with, the more serious must be the reasons for doing so before the interference can be legitimate.

64. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [117] (Lord Hope).

65. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [125] (Lord Hope), [154] (Baroness Hale), [165] (Lord Carswell).

66. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [118] (Lord Hope).

67. Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, [113] (Lord Hope).

68. Wainwright v Home Office [2004] 2 AC 406; Ash v McKennitt [2006] 1714, [8].

69. Associated Newspapers Ltd v HRH the Prince of Wales [2006] EWCA 1776, [64]-[74]; Ash v McKennitt [2006] EWCA 714, [11]. For discussion of the jurisprudence of the ECHR, see para 5.36-5.63.

70. See Associated Newspapers Ltd v HRH The Prince of Wales [2006] EWCA 1776, [65].

71. Hosking v Runting [2003] 3 NZLR 285, [42] (Gault and Blanchard JJ). See also R Toulson and C Phipps, Confidentiality (2nd ed, Sweet & Maxwell, 2006) [2-006] (“significantly different types of cause of action”). This is implicit in Douglas v Hello! Ltd [2007] UKHL 21, esp [255] (Lord Nichols dissenting)

72. Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 47 (Megarry J). See para 3.4.

73. Hosking v Runting [2003] 3 NZLR 285, [42] (Gault and Blanchard JJ).

74. See, for example, the Privacy Act 1993 (NZ), which deals primarily with the collection and disclosure of personal information by an “agency”, as defined in s 2(1); and the Broadcasting Act 1989 (NZ), under which broadcasting media organisations must meet standards consistent with the privacy of the individual.

75. Hosking v Runting [2005] 1 NZLR 1.

76. Hosking v Runting [2003] 3 NZLR 285.

77. Hosking v Runting [2005] 1 NZLR 1, [34].

78. Hosking v Runting [2003] 3 NZLR 285, [158].

79. Hosking v Runting [2005] 1 NZLR 1, [45].

80. Hosking v Runting [2005] 1 NZLR 1, [246] (Tipping J).

81. Hosking v Runting [2005] 1 NZLR 1, [45].

82. Hosking v Runting [2005] 1 NZLR 1, [45].

83. Hosking v Runting [2005] 1 NZLR 1, [110] (Gault and Blanchard JJ).

84. Hosking v Runting [2005] 1 NZLR 1, [148] (Gault P and B;lanchard J), [244] (Tipping J).

85. Hosking v Runting [2005] 1 NZLR 1, [1148] (Gault P and Blanchard J).

86. Hosking v Runting [2005] 1 NZLR 1, [117].

87. Gault and Blanchard JJ stated that the elements of the tort as it relates to publicising private information set down by Nicholson J in P v D [2000] 2 NZLR 591 “provide a starting point, and are a logical development of the attributes identified in the United States jurisprudence and adverted to in judgments in the British cases”: Hosking v Runting 2005] 1 NZLR 1, [117].

88. Hosking v Runting [2005] 1 NZLR 1, [259] (Tipping J).

89. Hosking v Runting [2005] 1 NZLR 1, [129]-[130] (Gault P and Blanchard J), [259] (Tipping J).

90. Hosking v Runting [2005] 1 NZLR 1, [259] (Tipping J).

91. Hosking v Runting [2005] 1 NZLR 1, [164] (Gault P and Blanchard J), [260] (Tipping J).

92. Hosking v Runting [2005] 1 NZLR 1, [164] (Gault P and Blanchard J).

93. Hosking v Runting [2005] 1 NZLR 1, [159]-[160] (Gault P and Blanchard J), [260]-[261] (Tipping J).

94. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, [1980] Australian Treaty Series 23 (generally entered into force for Australia 13 November 1980) (“ICCPR”)

95. Hosking v Runting [2005] 1 NZLR 1, [92].

96. Hosking v Runting [2005] 1 NZLR 1, [93].

97. British Columbia: Privacy Act, RSBC 1996, c 373; Manitoba: Privacy Act, CCSM 1987, c P125; Saskatchewan: Privacy Act, RSS 1978, c P-24; Newfoundland: Privacy Act, RSNL 1996, c P-22; A fifth province, Quebec, also has a statutory cause of action of invasion of privacy, enacted in the Civil Code of Quebec. This is discussed separately in paras 5.32-5.35.

98. Privacy Act, RSBC 1996, c 373, s 1.

99. Privacy Act, RSBC 1996, c 373, s 3.

100. Saskatchewan, Privacy Act, RSS 1978, c P-24, s 3(c); Manitoba: Privacy Act, CCSM 1987, c P-125, s 3(c); Newfoundland: Privacy Act, RSNL 1990, c P-22, s 4 (c).

101. Hollinsworth v BCTV (1998) 59 BCLR (3d) 121 (CA).

102. British Columbia: Privacy Act, RSBC 1996, c 373, s 1(2); Newfoundland: Privacy Act, RSNL, 1990, c P-22, s 3(2).

103. Manitoba: Privacy Act, CCSM 1987, c P125 s 3; Saskatchewan: Privacy Act, RSS 1978, c P-24 s 3; Newfoundland: Privacy Act, RSNL 1990, c P-22, s 4.

104. Privacy Act, RSBC 1996, c 373, s 1(4).

105. Privacy Act, RSBC 1996, c 373, s 2(2).

106. Privacy Act, RSBC 1996, c 373, s 2(3).

107. Manitoba: Privacy Act, CCSM 1987, c P125, s 5(a), (c)-(e). Saskatchewan: Privacy Act RSS 1978 c P-24 s 4(1)(a)-(d); Newfoundland: Privacy Act, RSNL 1990, c P-22, 55 (d).

108. Manitoba: Privacy Act, CCSM 1987, c P125, s 5(b).

109. Saskatchewan: Privacy Act, RSS 1978, c P-24, s 4(1)(e).

110. Manitoba: Privacy Act, CCSM 1987, c P125, s 5(f); Saskatchewan: Privacy Act, RSS 1978, c P-24, s 4(2); Newfoundland: Privacy Act, RSNL 1990, c P-22, s 5(2).

111. Newfoundland: Privacy Act, RSNL 1990, c P-22, s 5(2).

112. C Chester, J Murphy and E Robb, “Zapping the paparazzi: is the tort of privacy alive and well?” (2003) 27 Advocates’ Quarterly 357 at 364. See Insurance Corp of British Columbia v Somosh (1983) 51 BCLR 344 (SC); C (PR) v Canadian Newspaper Co (1993) 16 CCLT (2d) 275 (BCSC); Hollinsworth v BCTV (1998) 59 BCLR (3d) 121 (CA); F (JM) v Chappell (1998) 158 DLR (4th) 430; and Malcolm v Fleming (Unreported, April 10, 2000, BCSC, Doc No S17603, Downs J).

113. C Chester, J Murphy and E Robb, “Zapping the paparazzi: is the tort of privacy alive and well?”, 365.

114. Chester, Murphy and Robb, 366-368.

115. Referred to in Chester, Murphy and Robb, 366.

116. Cottrell v Manitoba (Workers Compensation Board) (1997) 119 Man R (2d) 294; Walker v British Columbia College of Dental Surgeons (Unreported, 19 February, 1997, BCSC, Doc No C946856, Sinclair Prowse J); and K (SJ) v Chapple (1999) 179 Sask R 124 (QB).

117. Silber v British Columbia Television Broadcasting System ltd (1985) 25 DLR (4th) 345.

118. Davis v McArthur (1970) 17 DLR (3d) 760.

119. Milton v Savinkoff (1993) 18 CCLT (2d) 288 (BCSC).

120. Druken v RG Fewer & Associates Inc (1998) 171 Nfld & PEIR 312.

121. Silber v BCTV Broadcasting Systems Ltd (1986) 69 BCLR 34.

122. See <http://www.oireachtas.ie/viewdoc.asp?DocID=1&StartDate=1+January +2006&CatID=59> at 22 March 2007.

123. B Murray, L O’Daly, B MacNamara and C O’Hobain, Report of WorkingGroup on Privacy (2006),<http://www.justice.ie/80256E010039C5AF/vWeb/flJUSQ6REJMU-en/$File/WkgGrpPrivacy.pdf> at 22 March 2007 (“Working Group Report”).

124. Ireland has not incorporated the protections of the Convention into domestic law.

125. Working Group Report at [2.33].

126. Working Group Report, [2.36].

127. Working Group Report, 8.

128. Working Group Report, [2.37].

129. Working Group Report, [2.39].

130. Working Group Report, [2.39].

131. Working Group Report, [2.40].

132. Working Group Report, [2.42].

133. Privacy Bill 2006 cl 2(2).

134. Privacy Bill 2006 cl 2(1).

135. Privacy Bill 2006 cl 3(1).

136. Privacy Bill 2006 cl 3(2)(a) and s 1.

137. Privacy Bill 2006 cl 2(2)(b).

138. Privacy Bill 2006 cl 2(2)(c).

139. Privacy Bill 2006 cl 2(2)(d).

140. Privacy Bill 2006 cl 4(1).

141. Privacy Bill 2006 cl 4(2).

142. Privacy Bill 2006 cl 4(3) and(4).

143. Privacy Bill 2006 cl 5(1).

144. Irish Independent, (18 September 2006)

145. A Martin, “Privacy Bill 2006: A Legal Perspective”, paper presented at the National Union of Journalists Conference, Journalism and the Law: New Threats and Challenges (Dublin, 16 September 2006).

146. Privacy Bill 2006 cl 13.