Privacy Law and Policy Reporter
 UKHL 53
On appeal from  EWCA Civ 2081 (see (2001) 8(7) PLPR 140)
Tort — privacy — whether English law recognises tort of invasion of privacy — whether English law recognises tort of intentional infliction of humiliation and distress
Facts and arguments on appeal
The facts of this case are described in the report of the Court of Appeal’s judgment at (2001) 8(7) PLPR 140. To recap, the plaintiffs were the mother (Mary) and half-brother (Alan) of a man held on remand in a prison on a charge of murder (Patrick). The prison authorities suspected Patrick was dealing in drugs while awaiting trial, so the governor of the prison gave instructions that all Patrick’s visitors were to be strip searched. Both Mary and Alan were strip searched when they visited Patrick. The trial judge found that the searches conducted by the prison officers were contrary to the prison’s guidelines in a number of respects, including:
(1) Alan’s penis was touched (the guidelines only provided for touching of the hair, ears and mouth);
(2) Mary and Alan were both for a time completely naked (the guidelines provided for exposing the upper body, and then the lower body in sequence); and
(3) Mary’s search was conducted in a room with a window through which someone across the street could have observed the search.
Alan suffered a recognised psychiatric illness, post-traumatic stress disorder, as a result. Mary suffered emotional distress, but no recognised psychiatric illness.
The trial judge made no finding that the prison officers intended to cause distress or realized they were acting without justification. Indeed, the trial judge found that the officers acted in good faith and that the deviations from the guidelines for strip searches were a result of mere sloppiness and were not intended to increase the humiliation necessarily involved.
The Home Office conceded that touching Alan’s penis during the search was battery (intentional physical contact not generally acceptable in the ordinary conduct of daily life).
The trial judge awarded damages to each of Mary and Alan. However, the Court of Appeal did not agree with the trial judge’s reasoning and did not consider that (apart from the battery, which was unchallenged) the prison officers had committed any other wrongful act. The appeal to the House of Lords was put in two ways.
1. The House should declare that there is a tort of invasion of privacy under which the searches of Mary and Alan were actionable and damages for emotional distress are recoverable.
2. Alternatively, the House should extend the principle in Wilkinson v Downton  2 QB 57 and recognise a remedy for distress which does not amount to a recognised psychiatric injury.
It was held as follows (per Lord Hoffman; Lords Bingham, Hope, Hutton and Scott concurring).
1. A general tort of invasion of privacy is not part of English law. There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. But there is a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. Nothing in the jurisprudence of the European Court of Human Rights suggests the adoption of a high level principle of privacy is necessary to comply with art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies: Malone v Metropolitan Police Commissioner  Ch 344, R v Khan (Sultan)  UKHL 14;  AC 558, Kaye v Robertson  FSR 62, Douglas v Hello! Ltd  EWCA Civ 353;  QB 967, considered. Earl Spencer v United Kingdom (1998)
25 EHRR CD 105, Peck v United Kingdom  ECHR 44; (2003) 36 EHRR 41, referred to.
2. Wilkinson v Downton does not provide a remedy for distress which does not amount to recognised psychiatric injury. Furthermore, even if the courts were to consider abandoning the rule applied in cases involving intentional torts that damages for mere distress are not recoverable, it would not apply in this case because the trial judge found no intention on the part of the prison officers to increase the humiliation necessarily involved in conducting the strip searches: Wilkinson v Downton  2 QB 57, explained. Wong v Parkside Health NHS Trust  EWCA Civ 1721, Khorasandijian v Bush  EWCA Civ 18;  QB 727, Hunter v Canary Wharf Ltd  UKHL 14;  AC 655, considered.
Compared to ABC v Lenah Game Meats (2001) 208 CLR 199 (discussed in) 8(7) PLPR 137, this case was a better vehicle for an ultimate appellate court to consider the availability of a general tort of invasion of privacy. This case involved individuals, not a corporation; the defendants in this case were not in the media business; and there was no breach of confidence argument in this case.
In Lenah, Gummow and Hayne JJ stated that nothing in their reasons (for which there was majority support on most points) nor the decision in Victoria Park v Taylor  HCA 45; (1937) 58 CLR 479 should be understood as foreclosing the potential development of a principle protecting the interests of the individual in leading, to some reasonable extent, a secluded and private life. In the Australian context, the debate on that principle has been taken up in the Queensland District Court case of Grosse v Purvis  QDC 151 (see also 10(3) PLPR 41 and 10(4) PLPR 66).
Although the House of Lords’ decision in Wainwright is not binding on an Australian court, it will be influential here. Those who request the Australian courts to recognise a general tort of invasion of privacy will need to identify cogent arguments as to why the Australian courts should not apply the reasoning of a unanimous House of Lords. Perhaps the greatest relevant difference between the Australian and English legal systems is the existence of the Human Rights Act 1998 in England. That legislation confers a statutory remedy on individuals whose rights under art 8 of the European Convention have been infringed by a public authority. There is no Australian equivalent to this regime. However, it will be difficult to convince an Australian court that this difference is sufficiently material to justify the existence of a general tort of invasion of privacy. While Lord Hoffmann stated that the coming into force of the Human Rights Act weakens the argument for saying that a general tort of invasion of privacy is needed, the overwhelming impression created by the judgment is that the same conclusion would have been reached even in the absence of that legislation. l
Mallesons Stephen Jaques, Sydney.
 NSWCA 277
This was a review by the NSW Court of Appeal of a decision of O’Connor DCJ, sitting as President of the NSW Administrative Decisions Tribunal (ADT).
In CP v NSW Ombudsman  NSWADT 103 Mr Koopman alleged that the Ombudsman’s Office had breached the Privacy and Personal Information Protection Act 1998 (NSW) (PPIPA) by disclosing, in the course of a complaint investigation, personal information about him, including details of his professional experience and academic qualifications, to Members of Parliament who were the complainants in that matter.
The Ombudsman argued that the ADT did not have jurisdiction to review its conduct by virtue of s 35A of the Ombudsman Act 1974 (NSW), which provides that ‘any civil or criminal proceedings’ concerning the acts done for the purpose of executing the Ombudsman Act or any other Act shall not be brought against the Ombudsman and its officers without the leave of the Supreme Court, which shall not be granted unless the Court ‘is satisfied that there is substantial ground for the contention’ that the acts or omissions concerned were in bad faith. The applicant and the Privacy Commissioner submitted that the Tribunal did have jurisdiction.
The ADT held that s 35A of the Ombudsman Act was subject to the PPIPA s 55 (right of individuals to review by the ADT of conduct by public sector agencies). O’Connor DCJ said at  that since the Ombudsman was subject to investigation by the Privacy Commissioner (s 36 PPIPA):
... it would not in my view make sense of the scheme of the legislation for the Ombudsman to be subject to investigation by the Privacy Commissioner pursuant to s 36; to be subject to a requirement for an internal review of conduct from an aggrieved person pursuant to s 53; and then not to be subject to an application from that person for review of the conduct by the Tribunal under s 55.
O’Connor DCJ considered that the intent of Parliament was to provide a ‘comprehensive code’ in relation to dealings with personal information, and that it is unlikely that Parliament intended the s 35A immunity from suit provisions ‘to prevail over the highly detailed scheme of regulation found in PPIPA’. The ADT therefore found that it had jurisdiction under the PPIPA to review the Ombudsman’s conduct.
Court of Appeal decision
The Court of Appeal held that the PPIPA does not expressly or by implication repeal s 35A. It is possible to comply with both Acts, and s 35A of the Ombudsman Act merely imposes a condition precedent to the utilisation of the process set out in s 55 PPIPA.
Mason P (Santow JA agreeing) noted that the parties did not dispute that review by the ADT constituted ‘civil proceedings’. If the Ombudsman is subject to review procedures in the PPIPA these are not in the nature of civil proceedings, and it does not assist to point to them: ‘accountability at one level does not assist in determining the level of accountability in another context, which Parliament has specifically addressed in
s 35 of the Ombudsman Act’ .
This is the first time a superior court has considered any significant issues concerning the PPIPA. The remarkably brief decision by the Court of Appeal rejected the ADT’s broader interpretation of the PPIPA. The Privacy Commissioner and the Ombudsman had taken opposing positions on this issue. If the proposed transfer of the Privacy Commissioner’s functions to the Ombudsman takes place (see lead article this issue), then the Ombudsman will no longer be subject to investigation by the Privacy Commissioner (as O’Connor DCJ had accepted was now possible). Taken together with this decision, which largely eliminates the role of the ADT in reviewing the conduct of the Ombudsman in relation to privacy, the result is that a very significant NSW government agency, the Ombudsman, will no longer be subject to any external review in relation to its compliance with its own privacy obligations under PPIPA. l
Graham Greenleaf, General Editor.