Horton, Jonathan --- "The developing right to privacy - at common law" [2001] PrivLawPRpr 18; (2001) 7(10) Privacy Law and Policy Reporter 206

The developing right to privacy — at common law

Jonathan Horton

In recent times the pages of this Reporter have catalogued the changes in the law of privacy at the parliamentary level. A recent decision of the English Court of Appeal, however, suggests that privacy law in the courts is also on the move.

In Michael Douglas and Zeta-Jones v Hello! Limited,[1] the Court was asked to prevent the publication of wedding photographs of the celebrity claimants. The photographs had been taken clandestinely. In the breathless, potboiling world of the English tabloid, the fight for the exclusive rights to the photographs was intense — but not so intense, it seems, as the pressure to be the first to publish the shots. In spite of Douglas and Zeta-Jones granting the exclusive rights to the rival magazine OK!, Hello! magazine wanted to be the first to publish. To do so was crucial, the evidence showed, to circulation figures and therefore to the level at which advertising charges could be set for the forthcoming six month period. When the claimants were informed that Hello! was about to publish the unauthorised photographs, they immediately sought a ‘pyjama injunction’ by telephone.

At a full hearing on the injunction issue, the claimants were successful in continuing the injunction to prevent publication. However, on appeal to the Court of Appeal, a three judge bench held that Hello! should not be restrained on the basis that the ‘balance of convenience’ test favoured Hello! as that the losses it might have suffered from being unable to publish the relevant issue would have been extremely difficult to quantify. In spite of this apparent loss, their Lordships took the opportunity to consider the scope of the claimants’ entitlements to argue that Hello! acted unlawfully in publishing the photographs.

Lord Justice Brooke noted that English law, in the context of breach of confidence, had not yet been willing to recognise that an obligation of confidence may be relied on to preclude an unwarranted invasion into people’s privacy when no pre-existing obligation of confidence existed. In doing so, his Lordship referred to the earlier case of Kaye v Robertson[2] in which a star of the television series ‘Allo ‘Allo lay comatose and critically injured following a car accident. Journalists entered his hospital room, photographed and ‘interviewed’ him, and then published the report. The Court in that case held that there was no right of action for breach of a person’s privacy and that any right to privacy had been disregarded for so long, it could now only be recognised by Parliament.

In the Douglas and Zeta-Jones case, Lord Justice Brooke concluded that the claimants were ‘likely to establish that publication should not be allowed on confidentiality grounds’— in itself an acceptance that breach of confidence has been extended.

Lord Justice Sedley went further, saying the law had reached a point at which one can say with confidence that it recognises and will appropriately protect a right of personal privacy. More importantly, this was not solely as a result of the legislative developments (such as the Data Protection Act 1998 (UK)) and the European Convention on Human Rights — it emerged also from the ability of ‘equity and the common law to respond to an increasingly invasive social environment by affirming that everybody has a right to some private space’. His Lordship went on to say that the law no longer had to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle concerned with the fundamental value of personal autonomy.

Lord Justice Keene referred to Sedley LJ’s reasons and agreed that a pre-existing confidential relationship between the parties is not essential for a breach of confidence suit and that if Kaye were decided today, it is unlikely it would be held there was no actionable right of privacy in English law.

What does this mean for Australia and New Zealand, not subject to the European Convention requirements and so far away from England and its courts? The fact that England is subject to the very significant EC requirements with respect to privacy is certainly a factor in the Douglas and Zeta-Jones decision. However, a majority of the Court recognised that the common law itself has moved, independently of any effect the EC matters have had. Furthermore, those develop-ments have run in parallel with the changes at the legislative and administrative levels.

On the common law front, it means that the courts in Australia (although probably only the High Court) may now rely on the Court of Appeal’s decision to recognise the existence of a general right of privacy, or at least an expanded notion of the tort of breach of confidence. Cases from the Court of Appeal and House of Lords are still influential in the High Court’s decision-making processes and are likely to be relied on in this context, particularly given the beliefs held by lawyers and citizens alike that some legal protection against the invasion of privacy is essential.

Consider also that the right of privacy in the Douglas and Zeta-Jones case extended to cover what might be considered ‘journalistic acts’ under the recent amendments to the Privacy Act 1988 (Cth). It is foreseeable that actions could be brought at common law against the media on the basis that such actions could not be brought under the legislation as a result of the journalistic exceptions. It seems unlikely that the ‘journalistic acts’ exception in the legislation would extend to the developing common law right of privacy. No doubt the case law in Australia, New Zealand and England over the coming years will ensure privacy law develops and adapts itself to the increased need for protection of individuals from invasion of their privacy.

Jonathan Horton is a solicitor in the Brisbane office of the national law firm, Minter Ellison.

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[1] Court of Appeal (UK), 21 December 2000, unreported, Brooke, Sedley and Keene LJJ.

[2] (1991) FSR 62.