Page 151 - Law and the Media

8 The ‘New’ Right to Privacy

Peter Grundberg

8.1 Introduction

It has long been recognized that a general right to privacy exists in English law. However,
there is no express common law ‘tort of privacy’ or statutory right to privacy. Prior to the
enactment of the Human Rights Act 1998 (‘the HRA’), the ‘right’ could only be established
by combining several different common law and European law strands. A person who
claimed his right to privacy had been infringed could bring an action against the defendant
for breach of confidence, trespass or defamation. The English courts also attempted to give
effect to the provisions of the European Convention of Human Rights (the ‘Convention’).
However, these common law causes of action provided only indirect protection against
invasion of privacy. Furthermore, the effect of the Convention was limited, as it did not
prevail over English law if a conflict arose between the two.

As a result, there has been considerable debate over the past 40 years as to whether
Parliament should legislate to make privacy expressly enforceable through the courts. The
question always seemed to focus on the activities of the media. Not surprisingly, it produced
strong arguments from both sides. Freedom of the press is the cornerstone of freedom of
speech. However, infringements of ‘privacy’ have usually been committed by a prying or
intrusive press. Since 1961, five separate bills have been presented to Parliament aimed at
introducing a statutory tort of privacy. All have been unsuccessful because of insurmountable
problems in connection with establishing adequate definitions of the civil offence of privacy
and acceptable defences. During the same period, there have also been various Government
committees and Royal Commissions that have considered the same question, the most recent
of which was the Government Committee on Privacy and Related Matters chaired by David
Calcutt QC, which reported in 1990. All recommended against the introduction of a statutory
law of privacy on the basis of an unworkable definition of the tort and the undesirability of
such a law.

An express right to privacy finally found its way into English law in October 2000. The
Human Rights Act 1998 incorporated the Convention into English law, including the Article
8 right to privacy. The HRA only applies to government action and not that of private
individuals. Despite the introduction of the Article 8 right to privacy, there is still no specific
government legislation creating a statutory tort of privacy. Furthermore, the Article 8
Convention right to privacy can often be at odds with the Article 10 Convention right to