Page 88 - Courting the Media Contemporary Perspectives on Media and Law

The Mechanical Eye: Looking, Seeing, Photographing, Publishing 79

association of the right to privacy with rights to private property has been
remarkably tenacious. As Sedley LJ, writing extra-curially, has pithily
observed:

‗The protection of privacy was largely left by the common law to the
law of trespass…If you had no property you had no privacy.‘ [Sedley,
2006]

The tort of trespass to land protects a plaintiff‘s possessory interest in land
from any unwanted, direct encroachment by others, even if no damage results.
In doing so, it has been accepted that the cause of action for trespass to land
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indirectly protects a plaintiff‘s privacy. By contrast, the tort of private
nuisance, which protects a plaintiff against indirect interferences with his or
her use or enjoyment of land, has long held that there is no legally enforceable
right to freedom from view or inspection and, by extension, no legally
enforceable right to privacy. If a person were able to overlook the plaintiff‘s
property, whether by natural or by artificial means, such a person committted
no wrong. Somewhat paradoxically, the tort of private nuisance does not
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protect privacy as an incident of the possession of land.
The importance the common law ascribes to the protection of private
property has long been recognised and was emphatically reinforced by the
8
judgment of Camden LCJ in Entick v Carrington. In this case John Entick, a
writer for allegedly seditious publications, brought proceedings against the
King‘s Chief Messenger, Nathan Carrington. Carrington, along with three
other messengers, broke into Entick‘s house to conduct a search and seizure of
his private papers. Camden LCJ famously stated that:

‗By the laws of England, every invasion of private property, be it
ever so minute, is a trespass. No man can set his foot upon my ground
without my license, but he is liable to an action, though the damage be
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nothing…‘

6
Plenty v Dillon (1991) 171 CLR 536 at 647 per Gaudron and McHugh JJ; T.C.N. Channel Nine
Pty Ltd v Anning (2002) 54 NSWLR 333 at 344-45 per Spigelman CJ.
7
Victoria Park Racing and Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479 at 494-96
per Latham CJ, at 507 per Dixon J.
8
(1765) 19 State Trials 1030.
9
(1765) 19 State Trials 1030 at 1066.