PRIVACY IN THE UK, PRIVACY IN THE US – CAN WE LEARN ANYTHING FROM EACH OTHER?

1. PRIVACY IN THE UK, PRIVACY IN THE US – CAN WE LEARN ANYTHING FROM EACH OTHER?

2. INTRODUCTION This paper will consider the development of the “right to privacy” in the UK and US with the aim of: • eliciting the definition and protection of privacy; • its challenges; and, • determining whether lessons can be learnt for each jurisdiction from one another

3. Privacy is a special characteristic which once breached or invaded, cannot be regained • Start for UK and US was the same • Prince Albert v Strange (1849) 1 Mac & G 25, 47 (Lord Cottingham) “Privacy is the right invaded” • Divergence began in 1890

4. US

5. WARREN AND BRANDEIS ‘The Right to Privacy’ (1890) 5 HLR 193 established 5 principles: • Discernible distinction between public & private figures & life • Mass media publicity unwarranted without consent – explicit for private figures, implicit for public • Everyone retained a “zone of privacy” • Publicity of private lives was not news • Private facts in the media could inflict serious dignitary & emotional harms to the individual Tort of breach of confidence was being developed alongside Simonsen v Swenson 177 NW 831 (Neb 1920)

6. PROSSER ‘Privacy’ (1960) 48 California LR 383 identified 4 torts as making up the law of privacy: • Intrusion upon seclusion or solitude, or into private affairs • Public disclosure of embarrassing private facts • Publicity which places the individual in a false light in the public eye • Appropriation for advantage of the individual’s name or likeness

7. US CHALLENGES • Since Prosser the development of the law of privacy has ossified • Much of the case law has supported any activities of the media, no matter how outrageous • New technology – especially social media, body scanners at airports, listening devices, new surveillance techniques

8. UK

9. BREACH OF CONFIDENCE Coco v AN Clark (Engineers) (1968) FSR 415 (HC) 419 (Megarry J): • the information itself must have the necessary quality of confidence about it; • that information must have been imparted in circumstances importing an obligation of confidence; and, • there must be an unauthorised use of that information to the detriment of the party communicating it

10. MISUSE OF PRIVATE INFORMATION Following the introduction of the HRA98 there is now a cause of action under MOPI with a 2 stage test: • Is there a reasonable expectation of privacy? • Balancing of Articles 8 and 10ECHR

11. UK CHALLENGES • 2 stage test for MOPI • Relationship between right of privacy and MOPI • Statute to entrench law of privacy? • Relationship between press and individuals – Leveson proposals and the Royal Charter?

12. LESSONS FROM THE US • Over-conceptualisation • Take individuals seriously • In relations between the media and the individual there is a mismatch of power and influence perpetuated by a hierarchy of statute • Dangers of instrumentality

13. LESSONS FROM THE UK • Breach of Confidence and MOPI protect different interests – relationships and individual expectations • These 2 causes of action can develop side by side • The MOPI test allows flexibility and the correct balance to be struck between competing interests • Still not protecting “privacy” per se

14. THOUGHTS FOR THE FUTURE

15. SOLOVE ‘A Taxonomy of Privacy’ (2006) 154 U Pa LR 477 identifies 4 harmful activities: • Information collection • Information processing • Information dissemination • Invasion It is law of privacy that then polices these activities

16. THE WAY FORWARD? • Return to the underlying idea of Warren & Brandeis – “inviolate personality” • As privacy involves human social interaction then its very nature is value-laden. Thus there needs to be a moral underpinning • What moral underpinning? Consent, dignity, liberty, human rights?