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Privacy, Confidence and Horizontal Effect: “Hello” Trouble

Published online by Cambridge University Press:  11 August 2003

Jonathan Morgan
Jonathan Morgan*
Affiliation:
Corpus Christi College, Cambridge
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Extract

The long wait for a privacy law in England might appear finally to be over. The Lord Chancellor predicted that his Human Rights Bill, on enactment, would usher one in. Some two months after the resulting Act came into force the Court of Appeal seemed, with remarkably little fuss, duly to recognise an action for invasion of privacy in Douglas & Zeta-Jones v. Hello!2 Moreover, this was achieved by employing (it was said) only the existing action for breach of confidence, and so the court could avoid frightening the horses, by appearing not to be doing anything new (or noteworthy) at all. Further, the court deftly avoided the contested quicksands of the horizontal effect (or not) of the Human Rights Act 1998.

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Articles
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The Cambridge Law Journal , Volume 62 , Issue 2 , 01 July 2003 , pp. 444 - 473
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Copyright © Cambridge Law Journal and Contributors 2003

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Footnotes

I am indebted to David Ibbetson and Michael Prichard.

References

1 See HL Deb. Vol. 583 col. 785 (24 November 1997).

2 [2001] Q.B. 967. Sedley L.J. stated that the H.R.A. “arguably gives the final impetus to the recognition of a right of privacy in English law”, at p. 998. Noted M. Elliott [2001] C.L.J. 231.

3 Leading combatants include: M. Hunt, “The ‘horizontal effect’ of the H.R.A.” [1998] P.L. 423; Sir R. Buxton, “The H.R.A. and private law” (2000) 116 L.Q.R. 48; Sir H.W.R. Wade, “Horizons of horizontality” (2000) 116 L.Q.R. 217; N. Bamforth, “The true effect of the H.R.A.” (2001) 117 L.Q.R. 35; D Beyleveld and S.D. Pattinson, “Horizontal applicability and horizontal effect” (2002) 118 L.Q.R. 623.

4 Contrast H. Fenwick and G. Phillipson, “Breach of confidence as a privacy remedy in the H.R.A. era” (2000) 63 M.L.R. 660.

5 Human Rights Act 1998 (“H.R.A.”), ss. 6(1) and 8.

6 For some attempts see Wacks, R. (ed.), Privacy (Aidershot 1993), Volume 1, pp. 1–278Google Scholar.

7 Wacks, R., The Protection of Privacy (London 1980), p. 10Google Scholar. It is hardly very convincing to rejoin that “most constitutional rights are drafted in general terms”—Barendt, E., “Privacy as a constitutional right and value” in Birks, P.B.H. (ed.), Privacy and Loyalty (Oxford 1997), p. 12Google Scholar.

8 [1991] F.S.R. 62. See further Section III B, below.

9 P. Prescott Q.C. “Kaye v. Robertson: A Reply [to Professor Markesinis]” (1991) 54 M.L.R. 451, 454.

10 (1951) 98 N.E. 2d. 286, Massachusetts. The Press Complaints Commission rejected a complaint about a somewhat similar situation in England (case of Mr. William Salisbury, P.C.C. Report 51, 2000).

11 D. Feldman, “Privacy as a civil liberty” (1994) 47(2) C.L.P. 41.

12 It has been estimated that there are some 200,000 CCTV cameras nationwide, with spending on surveillance running at £150-300 million per annum. House of Lords Science and Technology Select Committee, Fifth Report “Digital images as evidence” (London, 3 February 1998).

13 Les Editions Vice-Versa Inc. v. Aubry [1998] 1 S.C.R. 591. See, for the implications and possible limits of the decision, Russell, M. in Colvin, M. (ed.), Developing Key Privacy Rights (Hart: Oxford 2002)Google Scholar.

14 Ibid., para. 59, per L’Heureux-Dubé and Bastarache JJ. French law similarly: see Picard, E., “The Right to Privacy in French Law” in Markesinis, B. (ed.), Protecting Privacy (Oxford 1999), p. 91Google Scholar.

15 Ravanas, J., La protection des personnes contre la realisation et la publication de leur image (Paris 1978), pp. 388–389Google Scholar (as translated in Canadian Supreme Court Reports). Marginally less orotund in the original French. Cited at para. 69.

16 See Stoll, H., “The general right to personality in German law” in Markesinis, B.S. (ed.), Protecting Privacy (Oxford 1999)Google Scholar and Markesinis, B.S. and Nolte, N., “Some comparative reflections on the right of privacy of public figures in public places” in Birks, P.B.H. (ed.), Privacy and Loyalty (Oxford 1997)Google Scholar.

17 H.R.A., ss. 1 and 2.

18 L. Doswald-Beck, “The meaning of the right of respect for private life under the E.C.H.R.” (1983) 4 H.R.L.J. 283.

19 An early, comprehensive consideration of Article 8 concluded that photography even in a public place should fall within its scope: Velu, J., “The E.C.H.R. and the right to respect for private life, the home and communications” in Robertson, J. (ed.), Privacy and Human Rights (Manchester 1973), pp. 54–55Google Scholar.

20 Resolution no. 1165 (1998).

21 Earl and Countess Spencer v. UK (1998) 25 E.H.R.R. C.D. 105.

22 Decision of 28 January 2003. See also P.G. v. UK, decision of 25 September 2001 (covert recording of prisoners’ voices).

23 Para. 43.

24 See paras. 105-111. For judicial doubts that breach of confidence could apply to photographs of a person in the street see Campbell v. M.G.N. [2002] EWCA Civ 1373 [2003] 2 W.L.R. 80, para. [33].

25 R. v. Broadcasting Standards Commission, ex parte B.B.C., The Times, 14 September 1999.

26 [2001] Q.B. 885. It has been pointed out that by giving a company rights, the “personality” view of privacy is undermined: C. Munro, “Aspects of privacy” [2001] P.L. 1. This, however, turned in casu on the particular wording of the statute (see Broadcasting Act 1996, s. 111(1)), and both Hale L.J. and Lord Mustill were at pains to leave open the question of corporations’ privacy rights in the wider context: [2001] Q.B. 885.

27 See T.A.O. Endicott, “Questions of law” (1998) 114 L.Q.R. 292, for the argument that a “question of fact and degree” (as here) becomes a “question of law” when the law requires a particular answer to it, positive or negative. Dr. Endicott's central authority Edwards v. Bairstow [1956] A.C. 14 is followed in ex parte B.B.C. [2001] Q.B. 885.

28 Restatement of Torts (Second), para. 652C.

29 Ibid., Comment (a).

30 Noting that it has refused to do so, hitherto: Lyngstrad v. Annabas [1977] F.S.R. 62; Re Elvis Presley Trade Marks [1999] R.P.C. 567. See Cornish, W.R., Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (4th edn., London 1999), pp. 335Google Scholar and 642-643. The Press Complaints Commission has ruled that the privacy sections of its Code of Practice cannot be used to protect the commercial value of images, in rejecting Mr. Michaelangelo Attard's complaint (Report 55, 2001).

31 Cm. 1102 (1990), para. 12.8. Accordingly, the restriction on freedom of expression entailed was thought not to be justified.

32 Cosmopolitan, May 1999, p. 69ff. See also the facts of Kelley v. Post Publishing Co. and Peck v. UK, cited above.

33 Cornish, op. cit. at p. 642.

34 As suggested in Infringement of Privacy: Consultation Paper (Lord Chancellor's Department 1993).

35 [2001] Q.B. 967. For the trial, see now [2003] EWHC 786 (Ch.).

36 [2001] Q.B. 967, 1012. Likewise Sedley L.J. at 1001: recognising a strongly arguable privacy claim “is in my belief to say little, save by way of a label, that our courts have not said already over the years [in cases on breach of confidence]”.

37 A v. B [2002] EWCA Civ 337, [2003] Q.B. 195, para, [ll(vi)].

38 Law Com. Report 110 (1981), paras. 2.4. See generally paras. 2.2-2.6; 5.12; 6.69. This was despite the fact that the Law Commission's examination was a direct consequence of the Younger Committee on Privacy's having noted that breach of confidence had an underrated potential for the protection of privacy (see Cmnd. 5012).

39 See, for a summary of his arguments, Wacks, R., Personal Information, Privacy and the Law (Oxford 1989), pp. 132–134Google Scholar.

40 R. Wacks, “Breach of confidence and the protection of privacy” (1977) 127 N.L.J. 328. In his judgment after the trial in Douglas, Lindsay J. treated the case as one turning on breach of confidence, and declined to rule on privacy. See [2003] EWHC 786 (Ch.), para. [229].

41 [1967] Ch. 302. See W. Wilson, “Privacy, confidence and press freedom: A study in judicial activism” (1990) 53 M.L.R. 43. Cf. Barrymore v. News Group Newspapers [1997] F.S.R. 600.

42 “Confidence and privacy: A re-examination” [1996] C.L.J. 447. See cases cited therein, and Creation Records v. News Group Newspapers [1997] E.M.L.R. 444. In December 2000, however, the same authors still felt able to describe the new approach as only “somewhat inchoate” and with “as yet a relatively slight and insecure grounding in authority”: see n. 4 above, at p. 673.

43 A.-G. v. Guardian Newspapers (No. 2) [1990] 1 A.C. 109, 281.

44 [2001] Q.B. 967, 1001. See, more cautiously, Keene L.J. at p. 1012.

45 Ibid., at pp. 984 and 988.

46 Douglas was followed in Venables v. News Group Newspapers [2001] Fam. 430 (Butler-Sloss P. granting injunctions contra mundum, to prevent disclosure of notorious young offenders’ true identities, on basis of law of confidence). At the trial of Douglas, the High Court held that there was a duty of confidence—whether properly personal or commercial in nature—which the defendants had breached. [2003] EWHC 786 (Ch.).

47 Thus, even if a “relative” approach is taken to the public domain, as advocated by Fenwick and Phillipson, n. 4, above (and followed in A.-G. v. Times Newspapers [2001] 1 W.L.R. 885), there can still be information which is private but indubitably non-confidential.

48 Société Press-Office v. Sachs Cass. Civ. 2e, 6 janvier 1971 (Cour de cassation). Translation in van Gervan, W. and Lever, J., Tort Law (Oxford 2000), p. 185Google Scholar.

49 With respect, it is difficult to see how it can be brought within the scope of confidence by pointing to the (no doubt) unauthorised use of the information: Fenwick and Phillipson, note 4 above, at pp. 676-677. It simply lacks the necessary quality of confidence about it. The authors in fact talk of the information being “personal” and “private”, thus eliding the distinct concepts (ibid.). The distinction between the personal and the confidential is emphasised in Law Com. Report 110 (1980), para. 5.12.

50 A.M. Tettenborn, “Breach of confidence, secrecy and the public domain” (1982) 11 Anglo-American L.R. 273, 274.

51 As in disclosure of even widely know intimate secrets: ibid., at p. 275.

52 [1982] Q.B. 1, 28.

53 A.-G. v. Guardian Newspapers (No. 1) [1987] 1 W.L.R. 1248.

54 Equity should not act in vain; nor like King Canute; nor like the little Dutch boy putting his finger in the dyke as it collapses altogether (ibid., at pp. 1269-1270). Judges seen “beating the air”; “homely metaphors about empty stables or escaping cats” (per Lord Oliver of Aylmerton, ibid., at p. 1321). Cf. Bingham L.J. in “Spycatcher 2” [1990] 1 A.C. 109, 223: Equity should not imitate the Pope who issued a Bull against Halley's comet.

55 Voltaire, Candide, Chapter 23: “Dans ce pays-ci il est bon de luer de temps en temps un amiral pour encourager les autres”.

56 [1987] 1 W.L.R. 1248, 1298.

57 Contrast the unanimous view as to the futility of final injunctions in Spycatcher 2 [1990] 1 A.C. 109.

58 (1928) [1964] 1 W.L.R. 109n.

59 Ibid., at p. 111. See also Lord Denning M.R. (dissenting) in Schering Chemicals [1982] Q.B. 1, 22, approved by Lord Oliver of Aylmerton (also dissenting) in Spycatcher 1 [1987] 1 W.L.R. 1248, 1319.

60 [1990] 1 A.C. 109, 285-286.

61 [1982] Q.B. 1, 27-29. Shaw L.J. went on to mention the reasons given above.

62 [1987] 1 W.L.R. 1248, 1289.

63 Ibid., at p. 1305. Lord Templeman (who had been the other majority judge in Schering Chemicals) refers continually to the “treachery” of Wright, throughout his concurring speech in Spycatcher 1.

64 (1982) 11 Anglo-American L.R. 273, 280.

65 [1990] 1 A.C. 109, 271, 276-278. Lord Jauncey of Tullichettle agreed that Wright would still be under the obligation, but thought that the Sunday Times was no longer sufficiently connected with him. Ibid., at pp. 293-294.

66 Ibid., at p. 265.

67 Ibid., at pp. 285-289.

68 Ibid., at pp. 286-287. Lord Goff rejected the interpretation of Mustad v. Dosen put forward by Professor Tettenborn (and also the reasoning in Schering Chemicals, by implication). Ibid., at pp. 285-286.

69 Lord Keith of Kinkel seemed to leave open the question of Wright's obligation, ibid., at p. 259; Lord Goff expressed his view to be provisional, ibid., at p. 289; all of the views are necessarily obiter, vis-d-vis Wright, who was not a party to the case.

70 It has been suggested that the growing tendency to refer to the “tort” of breach of confidence reflects this shift: Tugendhat, M. Q.C. and Christie, I., The Law of Privacy and the Media (Oxford 2002) p. 199Google Scholar.

71 For further scepticism about confidence providing an adequate privacy law: R. Singh Q.C. and J. Strachan, “The right to privacy in English law” [2002] E.H.R.L.R. 129.

72 The first of Lord Greene M.R.'s requirements in the leading case, Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. [1948] R.P.C. 203, 215. For this reason, the Government's arguments in Peck v. UK while unconvincing as to the scope of “private life” are indeed fatal for any action for breach of confidence. Cited above, n. 23.

73 [2001] EWCA Civ 2081, [2002] Q.B. 1334.

74 Ibid, para. [87] and [98].

75 Ibid., para. [99].

76 See HL Deb. Vol. 583 col. 784-785 (24 November 1997).

77 See further SirNeill, B., “Privacy: A challenge for the next century”, in Markesinis, B.S. (ed.), Protecting Privacy (Oxford 1999)Google Scholar.

78 Buckland, W.W. (Stein, P. ed.), A Textbook of Roman Law From Augustus to Justinian (3rd edn., Cambridge 1963), p. 590Google Scholar.

79 Itself an historical accident: King v. Lake (1667) Harl. 470; Thorley v. Lord Kerry (1812) 4 Taunt. 355. See J. M. Kaye, “Libel and slander—two torts or one?” (1975) 91 L.Q.R. 524.

80 Sim v. Stretch (1936) 52 T.L.R. 668, per Lord Atkin.

81 See Tolley v. Fry [1931] A.C. 333 and Charleston v. News Group Newspapers [1995] 2 A.C. 65. Contrast Ellingshausen v. Australian Consolidated Press (1991) 23 N.S.W.L.R. 443: nude photograph of rugby footballer libellous (an example of privacy distorting common law principles, according to Lindsay, D., in Colvin, M. (ed.), Developing Key Privacy Rights (Oxford 2002)Google Scholar).

82 Cf. Pollard v. Photographic Co. (1886) 40 Ch.D. 345 (professional photographer employed to take plaintiff's portrait restrained from subsequently using her image on Christmas cards, on grounds of breach of contract and also his “gross breach of faith” in shocking the lady's feelings).

83 See the classic definition by Lord Diplock in Erven Warnink v. Townend [1979] A.C. 731.

84 Irvine v. Talksport [2002] EWHC (Ch.) 367, [2002] 1 W.L.R. 2355. Laddie J. stated that the right to one's image as such, whether at common law or under the H.R.A., was irrelevant to the case: paras. [44]—[45].

85 See Lord Bernstein v. Skyviews [1978] Q.B. 479, 489.

86 [1997] A.C. 655.

87 [1991] F.S.R. 62. See P. Prescott Q.C., “Kaye v. Robertson: A Reply” (1991) 54 M.L.R. 451.

88 See Buxton L.J. in Home Office v. Wainwright [2001] EWCA Civ 2081, [2002] Q.B. 1334, para. [70]: “Once the defendant [commits trespass], without justification, he is not only liable for damages even if no quantifiable loss results; but also liable for any loss that is in fact caused by the interference”. Thus, Mr. Prescott argues that a wide range of remedies can be granted by the court, including delivery up for destruction of photographic negatives obtained during the trespass. Ibid. Cf. A.B.C. v. Lenah Game Meals (2001) 208 C.L.R. 199 (High Court of Australia).

89 Prescott, ibid, at p. 454.

90 The situation in Kaye v. Robertson [1991] F.S.R. 62.

91 Quaere whether public nuisance might here be available. Unlikely (in the absence of obstruction of the highway), since intrusion is typically “victim-targeted” rather than general (CCTV cameras aliter?).

92 Birks, P.B.H., “Harassment and hubris, The right to an equality of respect” (1997) 32 Irish Jurist 1Google Scholar.

93 Rookes v. Barnard [1964] A.C. 1129; Cassell & Co. v. Broome [1972] A.C. 1027.

94 (1997) 32 Irish Jurist 1, 33.

95 Ibid., at pp. 34-35.

96 [1991] F.S.R. 62. The plaintiff sought an injunction against publication of photographs and an “interview” which the defendant newspaper had gained through unauthorised access to his hospital room.

97 Ibid., at p. 70. This proved prescient, for the paper in its next issue ran the story anyway, under the headline “PHOTOS HE TRIED TO BAN—Bedside shots taken without consent— Amazing sneak pictures”. This removed the (enjoined) innuendo that the plaintiff had consented to the interview. Sunday Sport, 4 March 1990.

98 [1993] Q.B. 727.

99 Hunter v. Canary Wharf [1997] A.C. 655.

100 [1986] Ch. 20.

101 Wong v. Parkside Health N.H.S. Trust [2001] EWCA Civ 1721. Conaghan, J. and Mansell, W., The Wrongs of Tort (2nd edn. London 1999), p. 142Google Scholar.

102 H.R.A., s. 3.

103 Protection From Harassment Act 1997, s. 2 (up to six months’ imprisomnent); s. 3.

104 Ibid, s. 7(2).

105 Thomas v. Hughes [2001] EWCA Civ 1233, [2002] E.M.L.R. 78.

106 A defence in Protection From Harassment Act 1997, s. l(3)(c).

107 Para. [34].

108 It was arguable that the defendant's conduct amounted to racial harassment, and that this was sufficiently “exceptional”.

109 Protection From Harassment Act 1997, s. 7(3). “Conduct” includes speech: s. 7(4).

110 The Wilkinson v. Downton tort may consist of a one-off distress-inducing action: [1897] 2 Q.B. 57. However, it would apparently require actual physical harm to be shown—like a stress-induced illness. See now Wainwright v. Home Office [2001] EWCA Civ 2081, [2002] Q.B. 1334.

111 Lau v. D.P.P. [2000] Crim. L.R. 580, R. v. Hills [2001] Crim. L.R. 318.

112 Hills, above (the defendant had had consensual sexual intercourse with the complainant in the six months between the two incidents).

113 D. C. Ormerod, commentary on Hills, above, ibid.

114 Campbell v. M.G.N. [2002] EWCA Civ 1373, [2003] 2 W.L.R. 80, para. [72].

115 Data Protection Act 1998, Schedule 1, Part I, Para. 1(1). “Fairness” explicitly includes the way in which the data were obtained: Schedule 1, Part II, Para. 1(1).

116 Ibid., Schedule 2, Para. 6(1). Note Para. 6(2): “The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied”.

117 Ibid., s. 2.

118 Ibid., s. 10.

119 ibid., s. 13.

120 Ibid., s. 32(1) and (2).

121 Ibid., s. 32(4) and (5). For the determination, see s. 45(1). The then Data Protection Registrar criticised this provision as enabling delay for months or even years, possibly as a purely tactical manoeuvre: Briefing Paper, cited in Lloyd, I.J., A Guide to the Data Protection Act 1998 (London 1998), p. 85Google Scholar.

122 [2002] EWCA Civ 1373, [2003] 2 W.L.R. 80 (noted D. Howarth [2003] C.L.J. 17).

123 See [2002] EWHC (QB) 499. Also, Lloyd op. cit. para. 6.9.

124 [2002] EWCA Civ 1373, [2003] 2 W.L.R. 80, para. [120].

125 Ibid., para. [129]. The court also said that Morland J.'s approach had opened a Pandora's Box, and if correct would mean that the Data Protection Act had created a law of privacy: paras. [92] and [94].

126 Bonnard v. Perryman [1891] 2 Ch. 269. It is, however, the case that s. 12, H.R.A. applies to awards of damages as well as to prior restraint: Douglas v. Hello! [2003] EWHC 786 (Ch.), para. [203].

127 [2003] 1 W.L.R. 740. It might also be noted, for the purposes of the following section, that Miss Campbell did not feel it worthwhile to complain to the Press Complaints Commission before launching her ground-breaking legal action against the Daily Mirror.

128 If a “relevant filing system” within Data Protection Act 1998, s. 1.

129 Clause 3 (as amended, January 1998).

130 R. (Anna Ford) v. Press Complaints Commission [2001] EWHC Admin 683, [2002] E.M.L.R. 95. For similar P.C.C. rulings see e.g., Ms. Alex Kingston's complaint (Report 55, 2001), but contrast that of Mr. Hugh Tunbridge (Report 58, 2002): Dorking Advertiser in breach of Code for photographing complainant without his knowledge, eating a butterscotch tart in a cafe(!)

131 Thus, it is submitted, the court in the Anna Ford case should have gone considerably further than the “light touch review” which was adopted, especially given the concession, arguendo, that the P.C.C. was a public authority. For further discussion, Tugendhat, M. Q.C. and Christie, I., The Law of Privacy and the Media (Oxford 2002) pp. 558–560Google Scholar.

132 (1998) 25 E.H.R.R. C.D. 105. See now Peck v. UK (Judgment of 28 January 2003), para. 109. For “effective remedy” see Article 13, ECHR.

133 The Calcutt Review of Press Self Regulation (H.M.S.O. 1993) and the National Heritage Committee (“Privacy and Media Intrusion”, H.C. 294, 1993) recommended that an independent body be set up. The Government rejected this (see Cm. 2918, 1995). But for a spirited defence of the P.C.C. by its then chairman, see Lord Wakeham, “Press, privacy, public interest and the Human Rights Act” (speech on 23 January 2002).

134 Broadcasting Act 1990, s. 7(1). A similar regime exists for the regulation of independent radio services by the Radio Authority: ibid., Part III.

135 I.T.C. Programme Code, s. 2.2 (April 2001).

136 Broadcasting Act 1990, ss. 40-42. The Radio Authority has similar powers: ibid., ss. 109-111.

137 Established by Broadcasting Act 1996, s. 106, replacing the Broadcasting Complaints Commission and the Broadcasting Standards Council.

138 See ibid., s. 119.

139 [2001] EWCA Civ 2081, [2002] Q.B. 1334. The fullest consideration of authorities is by Buxton L.J. at paras. [96]—[107].

140 Ibid., para. [87].

141 It is accepted that all statutes, even those regulating private disputes, must be interpreted in line with the Convention so far as possible: H.R.A., s. 3. See, e.g. Ashdown v. Telegraph Group [2001] EWCA Civ 1142, [2002] Ch. 149.

142 SirWade, H.W.R., “The UK's Bill of Rights”, in Cambridge University Centre of Public Law, Constitutional Reform in the UK: Practice and Principles (Oxford 1998)Google Scholar, “Horizons of horizontality” (2000) 116 L.Q.R. 217, and Wade, & Forsyth, , Administrative Law (8th edn., Oxford 2000), p. 983Google Scholar. See J.E. Morgan, “Questioning the True Effect of the H.R.A”. [2002] L.S. 259. For the many other views, see n. 3, above.

143 Although this jurisprudence has been described as “incoherent and arbitrary”: see references in Colvin, M. (ed.), Developing Key Privacy Rights (Hart: Oxford 2002), pp. 22–23Google Scholar.

144 As Lindsay J. observes: “The recent judgment in Peck -v- United Kingdom in the ECHR, given on the 28th January 2003, shows that in circumstances where the law of confidence did not operate our domestic law has already been held to be inadequate. That inadequacy will have to be made good and if Parliament does not step in then the Courts will be obliged to”. Douglas v. Hello! [2003] EWHC 786 (Ch.), para. [229(iii)].

145 For analysis, see I. Hare, “Private parties, privacy and the H.R.A.” [2001] E.H.R.L.R. 526. Douglas has been applied in Venables [2001] Fam. 430, Theakston [2002] EWHC (QB) 137, [2002] E.M.L.R. 398, A v. B [2002] EWCACiv 337, [2003] Q.B. 195.

146 [2001] Q.B. 967, 1001.

147 Ibid., at p. 1002. On s. 6, see Sedley L.J. ibid., at p. 998: “the courts of this country must not only take into account jurisprudence of both the Commission and the European Court of Human Rights which points to a positive institutional obligation to respect privacy; they must themselves act compatibly with that and the other Convention rights. This … arguably gives the final impetus to the recognition of a right of privacy in English law”. (All emphasis added.)

148 Ibid., at pp. 1011-1012.

149 Ibid., at pp. 986-994.

150 See Lord Woolf C.J. in A v. B: “the court, as a public authority, is required not to act ‘in a way which is incompatible with a Convention right’. The court is able to achieve this by absorbing the rights which Articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles”. [2002] EWCA Civ 337, [2003] Q.B. 195, para. [4], See also Theakston v. MGN [2002] EWHC (QB) 137, [2002] E.M.L.R. 398, para. [28], per Ouseley J.

151 See, likewise, Scott, Lord, “Confidentiality” in Beatson, J. and Cripps, Y.M. (eds.), Freedom of Expression and Freedom of Information (Oxford 2000)Google Scholar; Wright, J., Tort Law and Human Rights (Oxford 2001), pp. 178–182Google Scholar; R. Singh Q.C. and J. Strachan, “The right to privacy in English law” [2002] E.H.R.L.R. 129.

152 See, likewise, A v. B para, [ll(vi)].

153 Section III B above, discussing P.B.H. Birks, “Harassment and hubris, The right to an equality of respect” (1997) 32 Irish Jurist 1.

154 Kaye v. Robertson [1991] F.S.R. 62 is the classic example. The protection was, however, less than complete—see above, Section III B. Semble there would today be a breach of confidence action: per Keene L.J. in Douglas [2001] Q.B. 967, 1012. Contrast the unrepentant views of Sir Thomas Bingham, “Should there be a law to protect rights of personal privacy?” [1996] E.H.R.L.R. 450, 457.

155 Bagshaw, R., “Obstacles on the Path to Privacy Torts” in Birks, P.B.H. (ed.), Privacy and Loyalty (Oxford 1997)Google Scholar. Some coherence has recently returned to the law on exemplary damages: Kuddus v. Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 A.C. 122, overruling A.B. v. South West Water [1993] Q.B. 507.

156 See e.g. Service Corpn. International v. Channel Four [1999] E.M.L.R. 83; Tugendhat, M. Q.C. and Christie, I., The Law of Privacy and the Media (Oxford 2002) pp. 284-292Google Scholar; Cream Holdings v. Banerjee [2003] EWCACiv 103.

157 Lord Lester & D. Pannick, “The impact of the H.R.A. on private law: The knight's move” (2000) 116 L.Q.R. 380, 383 (emphasis added). They cite “promoting legal certainty” as the main advantage of the approach over direct application of the Convention.

158 Cited above, at n. 147.

159 [2001] Q.B. 967, 1012.

160 Judgment of 2 April 1957 (Disclosure of Medical Record) B.G.H.Z. 29, 72, translation by N. Sims.

161 Picard, E., “The Right to Privacy in French Law” in Markesinis, B. (ed.), Protecting Privacy (Oxford 1999)Google Scholar.

162 Op. cit. For recent judicial reservations about the vagueness of the privacy concept, see Wainwright v. Home Office [2001] EWCA Civ 2081, [2002] Q.B. 1334, para. [60] per Mummery L.J., and Theakston v. MGN [2002] EWHC (QB) 137, para. [27], per Ouseley J.

163 Cmnd. 5012 (1972)

164 As enshrined in Article 10, E.C.H.R. (freedom of expression) and H.R.A., s. 12. See per Sedley L.J. at [2001] Q.B. 967, 1002-1005.

165 Discussed above, Section I. Cf. Brooke L.J. ibid., at p. 995, Sedley L.J. at pp. 1006-1007, and Keene L.J. at pp. 1012-1013.

166 See Mummery L.J. in Wainwright v. Home Office [2001] EWCA Civ 2081, [2002] Q.B. 1334, para. [60].

167 Nizel, “The Right of Privacy: A Half Century's Developments” (1941) 39 Mich. L.R. 526. For criticism of Irish attempts to protect human rights through established torts (in spite of the recognition of direct horizontal effect of Constitutional rights in principle) see Binchy, W., “Constitutional Remedies and Tort Law” in O’Reilly, J. (ed.), Human Rights And Constitutional Law (Dublin, 1992)Google Scholar.

168 Wainwright v. Home Office, loc. cit., paras. [108]—[112].

169 Although the House of Commons Culture, Media and Sport Committee is currently Inquiring into privacy and media intrusion. Lindsay J. has predicted that if Parliament does not act soon, the courts will be obliged to create a privacy law: Douglas v. Hello! [2003] EWHC 786 (Ch.), para. [229(iii)].

170 “The H.R.A. and private law” (2000) 116 L.Q.R. 48.

171 See J.E. Morgan [2002] L.S. 259, 266-270.

172 Kaye v. Robertson [1991] F.S.R. 62, 71, per Leggatt L.J.

173 Foreword, in Tugendhat and Christie, n. 156 above, p. vii. For the prediction, see n. 2 above.

174 [2002] EWCACiv 337, [2003] Q.B. 195, para. [ll(vi)J.

175 The Court of Appeal granted permission to appeal in Wainwright v. Home Office, n. 166 above, as did the House of Lords in Campbell v. MGN, n. 127 above.