Page 152 - Law and the Media

The ‘New’ Right to Privacy
freedom of expression. However, in view of recent judicial interpretations of the HRA it is
reasonable to speculate that an express right to privacy will soon develop that will encompass
the activities of private individuals as well as the government.

8.2 Common law rights

8.2.1 No ‘tort of privacy’

Historically, the common law has been somewhat ambiguous when it comes to the protection
of privacy. An example of the inability of the courts to find a cogent legal footing to maintain
an individual’s privacy can be found in the case of Kaye v Robertson (1991). A well-known
British television actor, Gordon Kaye, had undergone extensive surgery following a car
accident when he was photographed and allegedly interviewed by journalists from the
Sunday Sport, the tabloid newspaper, whilst still in hospital. Since he had in no way
consented to the interview or the taking of photographs, and indeed was not in a condition
so to do, he applied for an injunction to restrain publication of the journalists’ material.
Although the Court of Appeal refused his application, it noted that the case:

. . . highlighted, yet again, the failure of both the Common law and of statute to
protect in an effective way the personal privacy of individual citizens.

In the case of R v Khan (1997), a case involving the admissibility of evidence secured
through the use of covert police surveillance equipment in relation to the defendant’s
suspected heroin importation, the House of Lords noted that the Article 8 right to privacy
would only be of relevance in order to assist the construction of the law in a case of
ambiguity or doubt. The House of Lords did not lament this lacuna in the law. It was more
a case of ‘relief’ on the part of the House of Lords that it concluded, in spite of the element
of trespass, that the evidence was not rendered inadmissible even though it could be said to
have contravened Article 8. Lord Nolan said:

. . . it would be a strange reflection on our law if a man who has admitted his
participation in the illegal importation of a large quantity of heroin should have his
conviction set aside on the grounds that his privacy has been invaded.

It is interesting to note that when Lord Nolan heard the case in the Court of Appeal he, along
with Lord Taylor, highlighted the fact that the Convention had not been incorporated into
English statutory law. It remains open to speculation whether a decision similar to that given by
the House of Lords in R v Khan would be adopted quite so easily today, or whether the same
result would be achieved in a more roundabout way on the basis of national interest.

There have been occasions where the court has recognized privacy over and above other
legal provisions, although this recognition has not been consistent. In Haig v Aitken (2000),
the trustee in bankruptcy of Jonathan Aitken, ex-Conservative MP and Cabinet member,
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