Page 160 - Law and the Media

The ‘New’ Right to Privacy
In the last decade, many more voices have advocated express, although not necessarily
statutory, protection of privacy. In 1993 the Lord Chancellor’s Department published a
consultation paper called Infringement of Privacy, which proposed the introduction of
legislation to create a civil right to privacy. In 1996, Lord Bingham of Cornhill advocated
strongly the need to import a statutory protection akin to the United States of America model
(Should there be a Law to Protect Rights of Personal Privacy? (1996)). He maintained that
even if the development of a statutory tort of privacy was not imminent, the courts would
probably be forced to construct one where the ‘need to give relief is obvious and
pressing’.

However, despite these recent developments there is still no specific government legislation
creating a statutory tort of privacy. The position is different in the United States, where there
is a long-established and well-recognized tort of privacy (see Chapter 21). Ironically, in the
United States the concepts of confidence, trespass and harassment, which were largely
imported from England, were found wanting when it came to protecting privacy. The gap in
the law was noted and ‘the desirability – indeed of the necessity of such protection’ was
strongly advocated in the often-cited article written by Samuel Warren and Louis Brandeis
for the Harvard Law Review in 1890. Even in the 1890s the authors noted the unpleasant
effect of pernicious gossip that ‘is pursued with industry as well as effrontery’. This
sentiment is just as applicable today.

8.4 The Human Rights Act 1998

8.4.1 General principles

The introduction into English law of the Convention’s Article 8 right to privacy by the HRA
has propagated a more tangible right to privacy. Article 8 states that everyone has the right
to respect for his private and family life, home and correspondence.

The HRA is starting to trigger a new culture whereby the courts determine whether the acts
of public authorities and Parliament are compatible with the Convention. Under Section 3(1)
of the HRA, subordinate and primary legislation must, so far as is possible, be read and given
effect in a way that is compatible with the Convention. Incompatible subordinate legislation
will, accordingly, be struck down or disapplied by the court. Although primary legislation
cannot be struck down, the higher courts are empowered to declare the incompatibility of a
provision. Following such a judicial declaration of incompatibility, Parliament may utilize a
fast-track procedure with a view to amending the statute if it so chooses.

Public authorities
The HRA imposes a duty on public authorities to observe the right to privacy. Section 6
of the HRA renders it unlawful for a ‘public authority’ to ‘act’ incompatibly with any
Convention right. The definition of ‘act’ also encompasses ‘a failure to act’. Although it
is not entirely certain what constitutes a public authority, it seems that the net will be cast
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