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Published online by Cambridge University Press: 23 September 2024
This article examines what the state of the law regarding the tortious protection of the privacy of corporations tells us about the concept of a legal person. Given that non-human persons are capable of having an interest in at least their informational privacy, logic would seem to dictate that they should be recognised such a right protecting their personality. In reality, the law is most hesitant to concede the right to privacy to non-natural persons (the same being true of reputation). This suggests that, for the dominant strand of the law at least, despite the rhetoric, legal persons do not really have rights of personality; in other words, that they are not really persons.
I am grateful, in particular, to Prof. Nicole Moreham for inviting me to present, and for responding to, an earlier version of this paper at Victoria University of Wellington.
1 The terms “legal”, “juridical” and “juristic” are used interchangeably to refer to non-natural persons, understood as bearers of rights and duties that are not human. This reflects the fluctuating usage in the literature, itself perhaps a symptom of the lack of clarity surrounding the notion. “Persons-at-law”, on the other hand, indicates all persons recognised by the law, whether natural or non-natural.
2 There do not appear to have been specific developments in other parts of the Commonwealth. There do exist cases and literature coming out of the US concerning the privacy of legal persons; but these developments have been mostly left aside on the basis of the US context being too different, legally and intellectually, from that of the Anglo-Commonwealth to be useful here.
3 N.A. Moreham and M. Warby (eds.), Tugendhat and Christie: The Law of Privacy and the Media, 3rd ed. (Oxford 2016), [2.04].
4 Whether misuse of private information is a tort in the technical of the term, as opposed to, for example, an equitable wrong (like breach of confidentiality), was unclear for a time; but a positive answer now seems undoubted. Courts, as well as scholars, routinely – and rightly – use the word “tort” in respect of MOPI.
5 We can, however, still say that it “exists” in Australia in the sense that it is being openly discussed by courts and scholars, if only de lege ferenda. This is all the more true because it is ordinarily assumed that legal recognition (whether by courts or Parliament) is only a matter of time.
6 Moreham and Warby (eds.), Tugendhat and Christie, [2.34]–[2.37]; N.A. Moreham, “Privacy in Public Places” [2006] C.L.J. 606, 617ff.
7 E. Descheemaeker and H. Scott, “Iniuria and the Common Law” in E. Descheemaeker and H. Scott (eds.), Iniuria and the Common Law (Oxford 2013), 1, 14ff.; D. Ibbetson, “Iniuria, Roman and English” in Descheemaeker and Scott (eds.), Iniuria and the Common Law, 33, 36; P. Birks, “Harassment and Hubris: The Right to an Equality of Respect” (1997) 32 Irish Jurist 1, 4, 15–16. The distinction features more prominently in the mixed Anglo-Roman systems of Scotland and South Africa: see e.g. J. Neethling, J.M. Potgieter and A. Roos, Neethling on Personality Rights, 3rd ed. (Durban 2019); N.R. Whitty and R. Zimmermann (eds.), Rights of Personality in Scots Law: A Comparative Perspective (Dundee 2009). The term “rights of personality” is well established in European tort law scholarship as well: G. Brüggemeier, A. Colombi Ciacchi and P. O’Callaghan (eds.), Personality Rights in European Tort Law (Cambridge 2010).
8 Descheemaeker and Scott, “Iniuria and the Common Law”, 16. Paradoxically, the foremost right of personality, namely bodily integrity (corpus), tends to be left out of the category. There is an historical reason for this: because property rights were better protected in Roman law than personality rights, liability being based on negligence (culpa) rather than malice (dolus), corpus came to be protected as a quasi-proprietary right under the actio legis Aquiliae (the slave, whose body was someone else’s property, acting as the bridge between iniuria and damnum iniuria). It was, in that sense, transferred over from the personality to the property side of the law. The extended property action, in turn, gave birth to general principles of liability like Article 1382 (now 1240) of the French Civil Code, which was understood to protect both body and property. It is unlikely to be a coincidence that the same is true of the Anglo-Commonwealth tort of negligence, which is typically understood as protecting against negligent physical injury and negligent damage to property (but not, for instance, negligent defamation or negligent invasion of privacy).
9 All humans are, for their part, regarded as right- and duty-holders, although most people would probably add that this is a policy decision, not a matter of necessity (as the example of slavery shows).
10 See generally P.W. Duff, Personality in Roman Private Law (Cambridge 1938). In that sense, Roman law did already know of legal persons, both private and public. But it is noticeable that it did not use the term in their respect. Collegia, civitates, etc., did not (contrary to slaves) feature in the personae part of the Institutes. The use of the phrase “persona ficta” in respect of such entities is typically traced back to Pope Innocent IV, during the second life of Roman law. In England, the concept features within institutional writings from at least the beginning of the eighteenth century. Thus, the following sources all refer to the King and to corporations as “persons”: M. Hale, The History and Analysis of the Common Law of England (London 1713), sections ii, xxii; T. Wood, An Institute of the Laws of England; or The Laws of England in their Natural Order, According to Common Use, vol. 1 (London 1720), bk. 1, chs. 2, 8; W. Blackstone, Commentaries on the Laws of England, vol. 1 (Oxford 1765), bk. 1, chs. 3, 18.
11 See below, Section III(A)(3) (“The European Court of Human Rights”). The court has accepted, for instance, that a corporation could have a “home”.
12 Note, however, the statement by Lady Hale that “companies may … wish to keep private … their property”: R. v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2000] EWCA Civ 116, [2000] 3 W.L.R. 1327 (hereafter, Broadcasting Standards Commission), at [42]. If property is distinct from information – documents, files, etc. – then it is not clear what Lady Hale had in mind and why this would be correct. If, on the other hand, by property she meant “information”, then we are back to informational privacy (where there is judicial support for the view that liability need not involve disclosure to a third party beyond the acquisition of the private information: Moreham and Warby (eds.), Tugendhat and Christie, [10.75]ff.).
13 Broadcasting Standards Commission [2000] EWCA Civ 116; see below, Section III(A)(2) (“Broadcasting Standards Commission”).
14 Australian Broadcasting Corp. v Lenah Game Meats Pty Ltd. [2001] HCA 63, (2001) 185 A.L.R. 1 (hereafter, Lenah Game Meats), at [43] (“Some forms of corporate activity are private. For example, neither members of the public, nor even shareholders, are ordinarily entitled to attend directors’ meetings. And, as at present advised, I see no reason why some internal corporate communications are any less private than those of a partnership or an individual”).
15 The argument is not easy. It could be replied that “personal” is typically understood in this context as meaning intimate and nothing can be “intimate” about abstract entities. It is true that the categories of information most readily regarded as private by nature – health, relationships of a sexual nature, diaries, etc. – do not readily find application in the context of legal persons. However, it seems hard to deny that at least some information that concerns them can be private even in this most basic sense, e.g. financial affairs, relationships with other persons (natural or legal), etc. Besides, it is likely that the reason why categories of private information for legal persons (which might be significantly different from those for natural persons) have not been clearly identified is because there have been so few relevant cases. For an interesting attempt to map what he calls “organisational privacy”, see A.F. Westin, Privacy and Freedom (New York 1967), 42ff., who includes such matters as trade secrets, membership of the organisation, internal disputes, etc.
16 For examples of the argument surfacing in the case law, see text to note 32 below.
17 J.N.E. Varuhas and N.A. Moreham, “Remedies for Breach of Privacy” in J.N.E. Varuhas and N.A. Moreham (eds.), Remedies for Breach of Privacy (Oxford 2018), ch. 1.
18 This opens the – vast – normative question of whether non-natural persons ought to have privacy rights, a question that (as indicated) lies beyond the scope of this article. Most of the literature on this question has concerned trading corporations and has come from the US: see for instance, in support, A.L. Allen, “Rethinking the Rule Against Corporate Privacy Rights: Some Conceptual Quandries for the Common Law” (1987) 20 John Marshall Law Review 607 and, in opposition, E. Pollman, “A Corporate Right to Privacy” (2014) 99 Minnesota Law Review 27, 54ff. (adde, for Australia, Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, ALRC 108 (Final Report) (Canberra 2008), ch. 7). S.R. Sanders, “The Corporate Privacy Proxy” (2019) 105 Cornell Law Review 1171, 1194ff. explains how the debate about corporate privacy was, from the start, bound up with the political question of whether the gruesome treatment of animals in meatpacking factories, or indeed of human beings in mental hospitals, could legitimately be exposed. Interestingly, the seminal Australian case of Lenah Game Meats [2001] HCA 63 also concerned a meatpacking factory: see text to note 20 below.
19 Attorney General v Guardian Newspapers and others (No. 2) [1988] 3 All E.R. 545, 658 – a view accepted in Australia as well. It is not doubted in either jurisdiction that the law of confidentiality also protects corporations (e.g. Broadcasting Standards Commission [2000] EWCA Civ 116, at [49]; Lenah Game Meats [2001] HCA 63, at [39]), independently, of course, of whether the breach of confidentiality also amounts to an infringement of privacy.
20 Lenah Game Meats [2001] HCA 63, at [328].
21 Ibid., at [43] (Gleeson C.J.).
22 Broadcasting Standards Commission [2000] EWCA Civ 116. The Broadcasting Standards Commission is now Ofcom.
23 Ibid., at [32] (Lord Woolf M.R.).
24 Ibid., at [33].
25 Ibid., at [42] (Lady Hale).
26 Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457. Broadcasting Standards Commission was referenced at [75] by Lord Hoffmann, but only Lord Mustill’s remark, which concerned the right to privacy in the sense of tort law, not the “privacy” of section 110 of the Broadcasting Act 1996.
27 Broadcasting Standards Commission [2000] EWCA Civ 116, at [42] (Lady Hale).
28 Ibid., at [44].
29 Moreham and Warby (eds.), Tugendhat and Christie, [13.36]–[13.37] and references cited.
30 The statutory basis for this duty is section 6 of the Human Rights Act 1998, which mandates that a court, as a public authority, should not act in a way that contravenes Convention rights unless it is statutorily obliged to do so.
31 Broadcasting Standards Commission [2000] EWCA Civ 116, at [44] (Lady Hale).
32 Ibid., at [46]–[48].
33 See text to notes 16–18 above.
34 In Australia too, “privacy” is a word that exists outside the context of the rights protected in tort law. There is, for instance, a Privacy Act 1988 (Cth), which was reviewed recently by the Attorney General’s Department. But, again, the word means something very different here, being more akin to data protection and the way in which these data should be collected and treated by public entities.
35 Lenah Game Meats [2001] HCA 63, at [126], footnote omitted. The reference is to an earlier High Court of Australia case from 1947.
36 Most notably perhaps regarding the Douglas v Hello! Ltd. series of cases, where claims for breach of privacy were brought alongside breach of confidentiality (see OBG v Allan, Mainstream Properties Ltd. v Young, Douglas v Hello! Ltd. [2007] UKHL 21, [2008] 1 A.C. 1). The argument is that the Douglas–Zeta-Jones couple could not have cared about the publication of photographs of their wedding by one magazine, given that they were prepared to have other photographs of the same event published by a rival publication. Their only concern, the argument goes, was the loss of the fee they could have charged in return for consenting to their publication. Accordingly, Gummow and Hayne JJ.’s point about instrumentalisation is one that deserves a satisfactory answer, but across the board, not just in respect of corporations.
37 Lenah Game Meats [2001] HCA 63, at [132] (Gummow and Hayne JJ.).
38 Ibid., at [43]. Kirby J. also expressed doubt but without specifying his reasons: “The fact that the respondent is a corporation is a further reason for delaying a response to this question. This is because doubt exists as to whether a corporation is apt to enjoy any common law right to privacy” (at [190]).
39 In that sense, a company or public authority is very different from, say, an animal when it comes to the debate about the scope of legal personality.
40 Derbyshire County Council v Times Newspapers Ltd. and Others [1993] A.C. 534, 537 (H.L.) (Lord Keith). Following section 1 of the Defamation Act 2013, a statement that refers to “a body that trades for profit” will only be defamatory where “serious financial loss” was caused or was likely to be caused by the words complained of. For the interesting legislative history behind that provision, reached as a compromise with those who wanted to follow the Australian lead, see M. Collins, Collins on Defamation (Oxford 2014), [2.10]–[2.13]; and, for details on English law, see R. Parkes and G. Busuttil (eds.), Gatley on Libel and Slander, 13th ed. (London 2022), [8.16]. The position in New Zealand is similar to that in England: Defamation Act 1992 (NZ), s. 6; contrast the Irish position, which does not restrict the right of corporations to sue based on the nature of the loss they are likely to suffer: Defamation Act 2009 (Ireland), cl. 11.
41 It is all the more noticeable because it is not just unnecessary, but also has problematic implications when it comes to non-trading corporations. On the same logic, they should presumably have no “business reputation”; not being able to be wounded in their feelings either, they would as a result have no right of action at all. In their case, however, the law falls back on ordinary principles and holds that they can sue for pecuniary losses: Parkes and Busuttil (eds.), Gatley on Libel and Slander, [8.19].
42 Die Spoorbond v South African Railways; Van Heerden v South African Railways 1946 A.D. 999, 1012–13 (Schreiner J.A.), cited in Derbyshire CC v Times Newspapers [1993] A.C. 534, 549 (Lord Keith). Although Derbyshire CC v Times Newspapers concerned a local authority, it is not doubted that the same principle applies to the Crown or central government: ibid., at [8.20].
43 E.g. Defamation Act 2005 (NSW), s. 9(2)(a).
44 E.g. ibid., s. 9(2)(b). In New South Wales at least, following the Defamation Amendment Act 2020 (NSW), the “financial loss” must, like in England, be “serious”: ibid., s. 10A(2).
45 In particular, it is difficult to understand why financial loss would be unactionable for those corporations whose purpose it is to make financial gain, but not for those for whom it is not.
46 The issue of rights that are incapable, or so it seems, of being held by non-natural persons (like physical integrity or spatial privacy) also raises interesting questions. The concept of a right of personality that makes sense for some persons but not others does, on the face of it, challenge the concept of person-at-law. At least three arguments would deserve further consideration: (1) that it betrays the incoherence of the category of persons-at-law (which should not pretend not to be rooted in humanity or corporeality when the reality is that it is); (2) that rights like corpus that are not capable of being held by all persons-at-law should not be regarded as rights of personality; (3) that, on the other hand, if they are so considered, then all “persons” should be held to have them, even if that involves anthropomorphist analogies.
47 P. Mitchell, The Making of the Modern Law of Defamation (Oxford and Portland, OR 2005), 43ff.
48 See text to note 20 above.
49 See text to notes 35, 38 above; Campbell v MGN [2004] UKHL 22, at [50] (Lord Hoffmann) (“something worth protecting as an aspect of human autonomy and dignity”); Moreham and Warby (eds.), Tugendhat and Christie, [2.55]–[2.69] and references cited; N.A. Moreham, “Why Is Privacy Important? Privacy, Dignity and the Development of the New Zealand Breach of Privacy Tort” in J. Finn and S. Todd (eds.), Law, Liberty, Legislation: Essays in Honour of John Burrows QC (Wellington 2008), 231, 232ff.
50 However, there is no denying that, as suggested in note 46 above, this ushers a tension into the category of persons-at-law.
51 Lenah Game Meats [2001] HCA 63, at [328] (Callinan J.); G. Taylor and D. Wright, “Privacy, Injunctions and Possums: An Analysis of the High Court’s Decision in Australian Broadcasting Corporation v Lenah Game Meats” (2002) 26 Melbourne University Law Review 707, 720 (“it should be recognised that it is contradictory for the legal system to create fictitious persons and then to use their very fictitiousness as a reason for denying them legal rights”); S. McCorquodale, “Corporations’ Right to Privacy in Canada and Australia: A Comparative Analysis” (2003) 15 Bond Law Review 102, 113. See also L.A. Bygrave, “A Right to Privacy for Corporations? Lenah in an International Context” (2001) 8 Privacy Law and Policy Reporter 130.