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Lindsay, David --- "Naomi Campbell in the House of Lords: Implications for Australia" [2004] PrivLawPRpr 20; (2004) 11(1) Privacy Law and Policy Reporter 4

Naomi Campbell In The House Of Lords: Implications For Australia

Naomi Campbell in the House of Lords: Implications for Australia

David Lindsay | University of Melbourne

The landmark decision of the House of Lords in Campbell v Mirror Group Newspapers Ltd[1] is notable because of the extent to which it incorporates European human rights jurisprudence into substantive English domestic law. In other words, the decision represents a fusion of European human rights law, as established by decisions of the European Court of Human Rights, with English common law. At the same time, differences in emphasis apparent in the reasoning in the five separate judgments may have significant practical consequences for the future of English privacy law. This casenote analyses the judgments and suggests some implications of the decision for the protection of privacy at general law in Australia.

Facts

Naomi Campbell is an internationally-known celebrity model. Campbell had, in the past, publicly asserted that she did not take drugs. The Mirror newspaper obtained information that Campbell was attending meetings of Narcotics Anonymous (NA) to treat a drug addiction. The source of the information was either a member of Campbell’s entourage or another attendee at NA meetings. The Mirror published an article revealing that Campbell was a drug addict and praising her for seeking treatment. The article was accompanied by photographs of Campbell depicting her in a public street leaving an NA meeting. The photographs were taken by means a telephoto lens while the freelance photographer was concealed in a parked car. Campbell complained to the Mirror and commenced legal proceedings. The Mirror subsequently published articles that were highly critical of Campbell.

Campbell in the lower courts

Campbell initiated proceedings for damages for breach of confidence and for compensation under the Data Protection Act 1998 (UK) (the DPA). At first instance, Morland J held that Campbell was entitled to damages for breach of confidence and compensation under the DPA. He awarded modest damages and an increment for aggravated damages, based on the injury to feelings resulting from hurtful comments in the publications. The Court of Appeal reversed the findings, holding that there was no breach of confidence and that the Mirror was entitled to the media exemption in s32 of the DPA. The decision of the Court of Appeal was influenced by two important concessions made by Campbell. First, Campbell did not pursue a claim for infringement of privacy based on the intrusive photography.[2] Instead, the claim was based on the disclosure of private facts as a species of breach of confidence. Secondly, Campbell conceded that, by publicly asserting that she did not take drugs, the media were justified in setting the record straight by reporting that she was receiving treatment for her addiction. Given this concession, the Court of Appeal held that publication of the information that Campbell was attending NA meetings was not sufficiently significant to amount to a breach of confidence.

The House of Lords decision

In a 3/2 split decision, the House of Lords held that publication of the articles (and associated photographs) amounted to a breach of confidence and reinstated the orders of Morland J. The reasoning in the decision is best understood by comparing the approaches adopted by the individual members of the House to the following four issues: the ‘horizontal’ application of the European Convention of Human Rights (ECHR); the ‘extended’ action for breach of confidence; the status of what is known as the ‘Gleeson test’; and the approach taken to assessing ‘proportionality’ when an English court is required to balance two competing rights protected by the ECHR.

The main difference between the majority of the Court (Lord Hope, Baroness Hale and Lord Carswell) and the minority (Lord Nicholls and Lord Hoffman) turned on the relative weight given to Campbell’s right to privacy, protected under Article 8 of the ECHR, and the right to freedom of expression, protected under Article 10. The majority held that the information that Campbell was attending NA meetings (together with publication of the photographs) was sensitive health information, protection of which outweighed the freedom of the press to publish the information. The minority, on the other hand, held that some latitude, or margin of choice, should be given to the media in deciding how to publish a story, which in this case entitled the Mirror to publish information that Campbell was attending NA meetings and the associated photographs.

‘Horizontal’ application of ECHR IN UK law

In order to understand the potential effect of Campbell on Australian law, it is first necessary to consider the effect of the ECHR on the decision.

The ECHR was incorporated into English domestic law by the Human Rights Act 1998 (UK) (the HRA), which came into effect on 2 October 2000. There has been considerable controversy concerning what is known as the ‘horizontal’ effect of the ECHR.[3] The terminology is straightforward; a bill of rights has ‘vertical’ effect insofar as it confers rights on individuals against public authorities (the state) and ‘horizontal’ effect insofar as it confers rights on private individuals against other private parties. While it is clear that the ECHR and HRA have vertical effect, problems arise because the HRA is amibiguous on the extent to which English courts must give horizontal effect to the ECHR in proceedings between private parties.

The ambiguity arises mainly from the wording of s6 and, to a lesser extent, s12 of the HRA. Section 6 provides that it is unlawful for a public authority (which includes a court or tribunal) to act incompatibly with an ECHR right. This raises the question of whether a court is required to act compatibly with the ECHR in the exercise of its judicial function in proceedings between private parties. Section 12 applies where a court is considering whether to grant any relief which might affect the Article 10 right to freedom of expression. In such circumstances, s12(4) provides that the court must have particular regard to the right to freedom of expression including, in relation to journalistic material, ‘any relevant privacy code’. English courts below the House of Lords have made it clear that s12 is not confined to applications to restrain publication, but also applies to claims for damages or equitable compensation, as a monetary award can inhibit freedom of expression as much as an injunction.[4]

The decision of the House of Lords leaves uncertainties concerning the precise operation of sections 6 and 12, although all members of the House assume that the ECHR has some horizontal operation. Of the majority, Lord Hope and Baroness Hale dealt with both sections 6 and 12 of the HRA. In explaining the need for the court to take into account the Article 10 right, Lord Hope referred to ‘the court’s duty as a public authority under section 6(1) of the Human Rights Act 1998, which section 12(4) reinforces, not to act in a way which is incompatible with that Convention right’.[5] Lord Hope also assumed that s12(4) applies to applications for final relief, while not expressly examining the issue.[6] Baroness Hale also concluded that the HRA operates horizontally, but cautioned that it cannot create a new cause of action between private parties.[7] Rather, she concluded that where there is an existing relevant cause of action, s6 of the HRA requires the court to ‘act compatibly with both parties’ Convention rights’.[8] Baroness Hale also assumed that s12(4) requires the court to have particular regard to freedom of expression and any relevant privacy code in applications for final relief.[9] Lord Carswell did not directly consider the horizontal effect of the ECHR, but agreed with Lord Hope’s analysis of the incorporation of Articles 8 and 10 into the existing action for breach of confidence, although not expressly with his statement of the effect of s6.[10]

The minority members dealt explicitly with the effect of s6, but not with s12. Lord Nicholls held that it was unnecessary to decide whether s6 ‘extends to questions of substantive law as distinct from questions of practice and procedure’.[11] At the same time, he concluded that ‘the values underlying articles 8 and 10 are not confined to disputes between individuals and public authorities’.[12] Lord Hoffman, on the other hand, held that s6 provided a guarantee only against public authorities and was not ‘directly concerned with the protection of privacy against private persons or corporations’.[13] Like Lord Nicholls, however, Lord Hoffman regarded the incorporation of the ECHR into English law as recognition of the importance of protecting privacy and that there is ‘no logical ground for saying that a person should have less protection against a private individual than he would have against the state’.[14]

The result of the decision appears to be that the ECHR has a horizontal effect, but perhaps only where there is an existing cause of action. Although both Lord Hope and Baronness Hale appear to conclude that s6 requires that English courts not act incompatibly with ECHR rights in their judicial capacity in private actions, Lord Hope’s comments are confined to the Article 10 right. Lords Nicholls and Carswell apparently preferred not to offer a view on the operation of s6, while Lord Hoffman expressly denied that s6 has horizontal effect. On the other hand, the members of the House that considered the operation of s12 concluded that s12(4) of the HRA applies to applications for final relief, although with little explicit analysis.

How ‘extended’ has the action for breach of confidence become?

The Campbell decision is clearly of major importance for the protection of privacy in the UK. However, its effect on Australian law is less certain.

In a series of decisions the English courts have filled perceived gaps in the general law protection privacy by incrementally extending the boundaries of the existing action for breach of confidence, and not by recognising a self-standing privacy tort.[15] The decision of the House of Lords in Campbell continues and confirms this preference. The English approach contrasts with the New Zealand position which, following the decision of the NZ Court of Appeal in Hosking v Runting,[16] recognises a separate tort of public disclosure of private facts. A somewhat surprising feature of the House of Lords decision in Campbell is the scant references made to the NZ Court of Appeal’s decision, and an apparent reluctance to engage with the policy considerations underpinning the NZ approach.

It is now clear that, under English law, there are two species of the action for breach of confidence: the traditional action, which continues to apply to protect confidential information, such as trade secrets and some communications of personal information; and the ‘extended’ action, which protects private information from being made public. The traditional action for breach of confidence requires satisfaction of three elements: the information must be confidential; the information must be communicated in circumstances ‘importing an obligation of confidence’; and there must be an unauthorised use or disclosure of the information.[17]

The English courts have incrementally extended the first two elements. In Spycatcher (No 2)[18] Lord Goff first suggested that it was unnecessary for there to be an initial confidential relationship, but that the second element could be satisfied where the person who obtains information knows, or ought to know, that it is confidential. Subsequently, the English courts have extended the first element to protect information that is private, as well as confidential information. The combination of the two developments means that the extended action will be breached where there is an unauthorised disclosure or publication of information that the recipient knows, or ought to know, is private. Although the extension of the action by the English courts was clearly influenced by the incorporation of the ECHR into English law, as is apparent from the obiter comments of Gleeson CJ in ABC v Lenah,[19] it is open for common law courts to extend the action for breach of confidence to protect privacy without the need to directly take into account European jurisprudence.

The decision of the House of Lords, however, goes further than merely extending the action for breach of confidence: itconfirms that the ‘extended’ action is a fusion of the traditional action with Articles 8 and 10 of the ECHR.[20] In other words, as a result of the decision, European human rights law is now directly incorporated into the fabric of the extended action in a way that would not be open to common law courts in jurisdictions outside the direct influence of the ECHR. At the same time, there remain some differences in emphasis among the members of the House of Lords concerning the extent to which the extended action is a departure from the traditional action. Moreover, the precise nature of the fusion between the extended action and the ECHR jurisprudence is also somewhat ambiguous.

The members of the minority appeared to give more emphasis to differences between the traditional and extended actions than the majority. Thus, Lord Nicholls pointed out that the extended action protects private information, not confidential relationships, suggesting that ‘the essence of the tort is better encapsulated now as misuse of private information’.[21] Similarly, Lord Hoffman referred to ‘a shift in the centre of gravity of the action for breach of confidence when it is used as a remedy for the unjustified publication of personal information’.[22] He added that:

These changes have implications for the future development of the law. They must influence the approach of the courts to the kind of information which is regarded as entitled to protection, the extent and form of publication which attracts a remedy and the circumstances in which publication can be justified.[23]

Lord Hope, on the other hand, downplayed the novelty of the extended action. Referring to statements by Lord Goff in Spycatcher (No 2) concerning the importance of balancing the public interest in maintaining confidences against the public interest favouring disclosure,[24] he doubted whether there had been a shift in the ‘centre of gravity’ of the action. Further, referring to the guidance provided by the European jurisprudence, Lord Hope stated that:

It seems to me that the balancing exercise to which that guidance is directed is essentially the same exercise, although it is plainly now more carefully focussed and more penetrating.[25]

If Lord Hope’s analysis is correct, then the English developments may be readily applied in other common law jurisdictions, without introducing the complexities involved in balancing Articles 8 and 10.

Under English law, the need to take into account the ECHR rights gives rise to complexities in determining precisely how the exercise of balancing Articles 8 and 10 required by the European jurisprudence may be grafted onto the traditional analysis of elements of the cause of action. While all of the members of the House agreed that the HRA requires a ‘more explicit analysis’ of the competing Article 8 and 10 rights in applying the extended action,[26] the judgments are unfortunately far from clear on the precise nature of the fusion.

On this point, Baroness Hale, the only member to directly address the relationship between the elements of the cause of action and the need to balance the ECHR rights, concluded that:

The position we have reached is that the exercise of balancing article 8 and article 10 may begin when the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential.[27]

Other members of the House seemed prepared to rely more directly on the balancing exercise. For example, after deciding that the information at issue was private in the requisite sense, Lord Hope immediately turned to consideration of the competing Article 8 and Article 10 rights. Moreover, as Lord Hoffman pointed out, the elements of the cause of action may be subject to further development.[28]

At this stage, it appears that the extended action will protect against publication or disclosure where the plaintiff can establish that the information is private and that the person publishing the information knows, or ought to know, that it is private. Once these threshold questions are satisfied, the English courts must proceed to balance Article 8 and Article 10 considerations, drawing guidance from European human rights jurisprudence in doing so. Furthermore, the balancing exercise must be engaged in, whether the action is for interlocutory relief or for final relief. For the sake of judicial certainty, however, it would have been preferable for the members of the House to identify the contours of the extended action with greater precision.

What is ‘private’?: The Gleeson privacy test’s mixed reception

The first element of the extended action for breach of confidence requires the courts to draw a distinction between information that is private and information that is not. In ABC v Lenah Game Meats, Gleeson CJ suggested that:

The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.[29]

This test, sometimes known as the ‘Gleeson test’, is derived from the US tort of public disclosure of private facts.[30] At first instance in Campbell, Morland J applied two tests in determining that the information was sufficiently private: the Gleeson test; and the test suggested by Lord Woolf CJ in A v B plc, that ‘usually the answer to the question whether there exists a private interest worthy of protection will be obvious’.[31] The Court of Appeal adopted the two tests applied by Morland J, but differed in the application of the tests, finding that the information was insufficiently private.

While not entirely rejecting the Gleeson test, the House of Lords in Campbell did not clearly endorse it. Lord Hope, the most favourably disposed to the test, regarded it as ‘useful in cases where there is room for doubt’, but cautioned that ‘it is not needed where the information can easily be identified as private’.[32] Where the information is obviously private, Lord Hope concluded that there will be a reasonable expectation of privacy.[33] If the information is not obviously private, however, he held that the Gleeson test could be used as a check. In applying the test, however, Lord Hope made the important point that the degree of offensiveness must be determined by reference to a reasonable person in the position of the plaintiff, not someone in the position of the recipient of the information.[34] On this basis, Lord Hope concluded that the Court of Appeal had wrongly applied the test, as a reasonable person in the position of Campbell would have found disclosure of details of her treatment offensive.[35] Importantly, however, Lord Hope applied the Gleeson test in assessing the balance between the Article 8 and 12 rights.[36]

Lord Nicholls and Baronness Hale both criticised the Gleeson test. Lord Nicholls concluded that the best test for determining whether the information is private is whether ‘the person in question had a reasonable expectation of privacy’.[37] He warned that the Gleeson test should be ‘used with care’ for two reasons.[38] First, it suggests a stricter test of what is private than the ‘reasonable expectation’ test. Secondly, Lord Nicholls regarded it as more properly applicable to questions of proportionality, meaning the balance between privacy and freedom of expression, than to whether the information is private. While less critical of the Gleeson test than Lord Nicholls, Baronness Hale regarded the reasonable expectation test as ‘much simpler and clearer’.[39] Lords Hoffman and Carswell, for different reasons, did not consider it necessary to offer a view on the Gleeson test.[40]

It therefore seems that, in determining whether information is private, the UK view is that the preferable test is whether it is ‘obvious’ that there is a private interest, meaning that the subject of the information has a ‘reasonable expectation of privacy’.[41] The status of the Gleeson test remains uncertain in UK courts, but it may possibly be used where it is not obvious that the information is private.

This approach may be compared with the elements of the public disclosure tort set out by the NZ Court of Appeal in Hosking v Runting. According to Gault P and Blanchard J, the ‘reasonable expectation’ test applies in determining whether the facts are private, while the ‘highly offensive’ test is applied in considering the publicity given to those facts.[42] In deciding between the English and NZ approaches, it is important to examine the purpose of the two tests. The ‘reasonable expectation’ test is clearly directed at determining whether information is private. As Lord Hope points out, however, the ‘highly offensive’ test is designed to ensure that the law does not protect ‘unduly sensitive’ plaintiffs.[43] In other words, the Gleeson test is directed at quite a different purpose, namely at whether the matter is such that disclosure of it would offend a reasonable person. Thus, as Lord Nicholls suggests, it seems preferable for the Gleeson test to be taken into account in determining whether the publication or disclosure would be reasonable, than in assessing whether the information is private.

Proportionality

The Article 8 and 10 rights are not absolute rights, but are qualified. Permissible limits on the rights are set out in Articles 8(2) and 10(2), respectively. The analysis of whether or not there has been an infringement of the right involves, in both cases, determining whether there has been an interference with the right then, if so, determining whether the interference is justified under Article 8(2) or 10(2). Articles 8(2) and 10(2) have similar structures. In both cases, an interference with the right may be justified if it is:

1. in accordance with law;

2. necessary in a democratic society; and

3. in furtherance of a legitimate aim identified in Articles 8(2) or 10(2).[44]

The European Court has explained that the test for ‘necessity in a democratic society’ requires that ‘the interference corresponds to a pressing social need and ... is proportionate to the legitimate aim pursued’.[45] Moreover, the reasons given to justify the interference must be ‘relevant and sufficient’.[46] The test for proportionality requires balancing the severity of the infringement of the right with the injury to the legitimate aim. In relation to both Articles 8(2) and 10(2), legitimate aims that may justify interferences with the respective rights include protecting the rights of others.

An interference with the Article 8 right may therefore be justified if it is outweighed by the right to freedom of expression and, conversely, an interference with the Article 10 right may be justified if it is outweighed by the right to privacy. As Lord Hope explained the relationship between Articles 8 and 10:

The effect of these provisions is that the right to privacy which lies at the heart of the action for breach of confidence has to be balanced against the right of the media to impart information to the public. And the right of the media to impart information to the public has to be balanced against the respect that must be given to private life.[47]

Moreover, as Lord Hope further points out, the requirement under s 12(4) of the HRA for the court to have particular regard to the Article 10 right necessarily requires the court to take into account competing rights, such as the Article 8 right, as Article 10(1) cannot be separated from Article 10(2).[48] In other words, both rights are to be given equal weight or, as Lord Hoffman put it:

There is ... no question of automatic priority. Nor is there a presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other.[49]

All of the members of the House of Lords are clear that the decisions of the European Court must be taken into account in examining the question of proportionality. This was expressed most clearly by Lord Hope, who stated that:

The tests which the court must apply are the familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm to be done by the interference with the right to privacy. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of each case.[50]

Moreover, as Baronness Hale pointed out, the proportionality test is difficult to apply when it involves balancing two ECHR rights:

The application of the proportionality test is more straightforward when only one Convention right is in play ... It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with ine has to be balanced against the proportionality of restricting the other.[51]

As explained above, the essential difference between the members of the majority of the House of Lords in this case, and the members of the minority, did not concern the need to balance the Article 8 and 10 rights, but turned on differences in the relative weight to be given to particular factors in applying the proportionality test. Lord Hope, after considering the matter from the point of view of both of the rights, concluded that, apart from the photographs, the balance was ‘about even’.[52] Taking the photographs into account, however, and including the intrusive nature of the photography, Lord Hope concluded that the publication of the photographs with the details of Campbell’s therapy was a ‘gross interference’ with her privacy that outweighed the Mirror’s right to freedom of expression. Baronness Hale emphasised the fact that the information regarding Campbell’s treatment was sensitive health information, the publication of which could cause ‘great harm’ to the plaintiif’s treatment.[53] Baronness Hale also concluded that publication of the photographs was unnecessary to the story, and could add to the harm by deterring Campbell from returning to the NA meetings.[54] Lord Carswell acknowledged that the decision was ‘delicately balanced’, but like the other members of the majority, emphasised that publication of details of the therapy and the photographs went beyond what was necessary to report that Campbell was a drug addict engaged in treatment, and had the potential to interfere with the treatment.[55]

Of the minority, Lord Nicholls doubted whether Campbell had a reasonable expectation of privacy in the information dealing with her treatment.[56] In assessing the relevant rights, however, Lord Nicholls considered that there must be a ‘degree of journalist latitude’ in the reporting of a legitimate story.[57] Moreover, he concluded that the photographs added nothing of ‘an essentially private nature’ to what was legitimately published in the articles.[58] Lord Hoffman considered that the newspaper should be given some ‘margin of choice’ in the way in which it presents stories,[59] adding that:

The practical exigencies of journalism demand that some latitude must be given. Editorial decisions have to be made quickly and with less information than is available to a court which afterwards reviews the matter at leisure.[60]

Lord Hoffman agreed with Lord Nicholls that the photographs added nothing substantial to the text[61] and that the decision to publish the photographs was ‘within the margin of editorial judgment’.[62] In other words, the minority were overwhelmingly concerned to avoid the potential ‘chilling effect’ on the media of courts second-guessing journalists on the publication of matters of detail.

Implications for Australian privacy law

In Hosking v Runting the NZ Court of Appeal stated that ‘analysis of Australian case law does not advance the issue very far’[63] and that the High Court’s decision in ABC v Lenah ‘does little to clarify the future direction of Australian jurisprudence’.[64] The comments are accurate. To date, the main contribution of the High Court has been the legacy of the Gleeson test, which (although only obiter) grafts a test taken from US tort law onto the English action for breach of confidence. The test has created uncertainty in English courts that have adopted it, mainly because it has been used for a purpose for which it was not designed. If the matter comes before it, the High Court would do well to consider the issue without the baggage of some of the obiter remarks made by the judges in Lenah.

If Australian courts decide to confer greater protection on privacy, there appear to be three models that are now available. The NZ Court of Appeal has, citing the ‘traditional process of the common law’,[65] and under the influence of US tort law, fashioned a new tort of public disclosure of private information. The English courts, on the other hand, have preferred to extend the existing action for breach of confidence to confer greater protection on privacy, partly in response to the ECHR and the HRA. In Campbell, the House of Lords directly incorporated the proportionality test, established under European human rights jurisprudence, into the parameters of the action for breach of confidence. This approach has the clear advantage of requiring English courts to engage in an explicit analysis of competing fundamental rights in determining the substantive merits of individual cases, as guided by European human rights law. It is clear, however, that a third alternative, involving the extension of the action for breach of confidence while not directly incorporating European law, remains an option for common law courts not required to take European jurisprudence into account.

The options available to Australian courts, therefore, seem to consist of a choice between recognising a public disclosure tort and extending the action for breach of confidence (but without directly incorporating ECHR law). At the same time, it needs to be borne in mind that Australia, unlike the UK and NZ, does not have a bill of rights. The reluctance of Australian courts to develop a rights-based jurisprudence could conceivably result in a greater reticence to develop the law in this area than either the English or NZ courts. In approaching this issue, however, the Australian courts are in a position that is not entirely dissimilar to that of the NZ courts. The NZ courts are not obliged to recognise a right to privacy, there being no separate recognition of such a right under the NZ Bill of Rights Act. In Hosking, the NZ Court of Appeal addressed this issue by recognising a ‘shift in emphasis’ in tort liability from liability for reprehensible conduct to the protection of identified rights.[66] It remains to be seen whether the current High Court would be willing to go quite as far as the NZ court on this point.

Nevertheless, when or if the matter comes before the High Court, the judges will be required to consider the choice between extending the action for breach of confidence and recognising a privacy tort. Whichever path is chosen, the wholesale adoption of the English approach, which requires incorporation of European jurisprudence, is not an option. The choice between the two available models depends, to a considerable extent, on the approach adopted to the development of the common law: whether it is preferable for courts to respond to perceived needs by incrementally extending existing causes of action or whether it is open to recognise entirely new causes of action. In this respect, the NZ Court of Appeal in Hosking gave more explicit attention to questions of judicial technique than did the House of Lords in Campbell. In any event, leaving aside questions of judicial technique, caution should be exercised to ensure that any developments in this area do not undermine the doctrinal coherency of the equitable action for breach of confidence. At the same time, it needs to be borne in mind that the choice between the equitable action and a public disclosure tort may be more than merely a matter of semantics; the choice may well have substantive legal consequences for issues such as standing, remedies and defences. While the English courts have yet to explore the full implications of their preference for developing the equitable action, it would seem advisable for Australian courts to consider these possible implications before formulating a view as to the best path for developing the general law to better protect privacy.

David Lindsay is a Senior Fellow at the Centre for Media and Communications Law (CMCL) at the University of Melbourne,

d.lindsay@unimelb.edu.au

[1] [2004] UKHL 22 (6 May 2004).; http://www.bailii.org/uk/cases/UKHL/2004/22.html

[2] The existence of a free-standing privacy tort of intrusion has since been rejected by the House of Lords in Wainwright v Home Office [2003] 3 WLR 1137.; BAILII cite & URL

[3] See Gavin Phillipson and Helen Fenwick, ‘Breach of Confidence as a Privacy Remedy in the Human Rights Era’ [2000] MLR 660.

[4] See especially Douglas v Hello! [2003] EWHC 786 per Lindsay J [203].

[5] [114].

[6] [111].

[7] [132].

[8] Ibid.

[9] [159].

[10] [167].

[11] [18].

[12] Ibid.

[13] [49].

[14] [50].

[15] See, for example, Douglas v Hello! [2000] EWCA Civ 353; [2001] QB 967; Venables v News Group Newspapers [2001] 1 All ER 908; Theakston v MGN [2002] EWHC 137; [2002] EMLR 22; A v B plc [2002] EWCA Civ 337; [2003] QB 195; Douglas v Hello! [2003] EWHC 786.

[16] [2004] NZCA 34 (25 March 2004).

[17] Coco v A N Clark (Engineers) Ltd [1969] RPC 41 per Megarry J.

[18] A-G v Guardian Newspapers (No 2) [1990] 1 AC 109.

[19] (2001) 185 ALR 1.

[20] See, for example, A v B plc [2002] EWCA Civ 337; [2003] QB 195, 202 per Lord Woolf CJ.

[21] [14]. Similarly, Lord Hoffman referred to the tort as a ‘wrongful disclosure of personal information’: [76].

[22] [51].

[23] [53].

[24] A-G v Guardian Newspapers (No 2) [1990] 1 AC 109, 282.

[25] [86], see also [106]. Similarly, Lord Carswell stated that the case ‘involved the application of reasonably well settled principles’: [163].

[26] See Lord Nicholls [19]; Lord Hoffman [51], [55]; Lord Hope [86]; Baronness Hale [132]; Lord Carswell [167].

[27] [134].

[28] [52].

[29] (2001) 185 ALR 1, 13.

[30] See Second Restatement of the Law of Torts (1977), s652D (US).

[31] [2002] EWCA Civ 337; [2003] QB 195, 206.

[32] [94].

[33] [96].

[34] [99]. See also Baronness Hale at [136].

[35] [98], [100]-[101].

[36] [121].

[37] [21].

[38] [22].

[39] [135].

[40] See [53], [166].

[41] The ‘reasonable expectation’ test can be traced to the decision of the US Supreme Court in Katz v United States389 US 347 (1967).

[42] [2004] NZCA 34 [117]. Tipping J, however, concluded that the question of offensiveness is part of the analysis of whether there is a reasonable expectation of privacy: [256].

[43] [94].

[44] See the analysis of Baronness Hale at [139].

[45] Olsson v Sweden [1988] ECHR 2; (1988) 11 EHRR 259.

[46] Ibid.

[47] [105].

[48] [111] citing Sedley LJ in Douglas v Hello! [2000] EWCA Civ 353; [2001] QB 967, 1005.

[49] [55].

[50] [113].

[51] [140].

[52] [121].

[53] [157].

[54] [155].