general law protection of privacy graham greenleaf university of new south wales last updated:...

General law protection of privacy

Graham Greenleaf

University of New South Wales

Last updated: September 2008

September 2008LAWS 3037 Data Surveillance &

Information Privacy Law

General law on privacy Why is special privacy legislation needed? 4 main sources of general law protection

Constitutional protection Special ‘Privacy torts’ Breach of confidence Other tortious protection

See RG General Law Protection of Privacy



Constitutional protection Constitutional protection (express/implied)

USA, HK (Basic Law) many other countries Statutory 'Bill of Rights' privacy

NZ, HK (BORO), UK, Canada Australia

No significant implied constitutional right nor a statutory Bill of Rights

International conventions have limited impact in domestic law (see next Topic)



Statutory interpretation to protect fundamental rights Courts may protect privacy by restrictive

interpretation of statutes to protect 'fundamental' rights.

Coco v The Queen (1994) 179 CLR 427 - Australian High Court - involved privacy issues relating to listening devices and the interpretation of the Invasion of Privacy Act 1971 (Qld). ‘The Courts should not impute to the legislature an intention to interfere with fundamental rights’.

Potter v Minahan (1908) 7 CLR 277 ‘it is .. improbable that the legislature would overthrow fundamental principles, [or] infringe rights … without expressing its intention with irresistible clearness…’



Hong Kong (1) International Covenant on Civil and Political Rights

(ICCPR) UN convention, 1966; UK acceded for HK

A17(1) ICCPR . ‘No one shall be subjected to arbitrary or unlawful interference with his privacy,…’

A39 Basic Law in effect entrenches ICCPR as part of Hong Kong law;

Legislation cannot be inconsistent with the ICCPR



Hong Kong (2) HK Bill of Rights Ordinance (BORO) gives the

ICCPR/A39 a statutory basis; s8 is HK Bill of Rights HK Bill of Rights A14 implements ICCPR A17(1) s7 only binds the government and public authorities and

those acting on their behalf Gives a right of defence against State actions Does not create direct ‘horizontal’ rights against other citizens It has also been limited, even in relation to legislation, to not apply to

legislation creating only private rights (Tam Hing Yee v Woo Tai Wan (1991) 1 HK Public Law Reports 261)

This was before Basic Law and A39 - arguable that no legislation can be inconsistent with ICCPR, irrespective of BORO

No significant BORO cases on A14 yet



Hong Kong (3) Can the BORO create a right of privacy against

governments? S6 BORO provides Courts may grant remedies for breach of

Ordinance - including ICCPR via A14 It may possibly create a right of privacy by itself (HKLRC 2004) but

this has not been tested Other ‘Bills of rights’ may provide relevant caselaw

A 8 European Convention on Human Rights (ECHR) was considered to be limited in horizontal effects; UK case law (see Campbell v MGN later) changes this

US Bill of Rights is also limited in horizontal effect See Topic ‘Privacy protection in international agreements’



HK (4)- Other relevant Basic Law provisions:

A28 Basic Law- 'The freedom of the person of Hong Kong residents shall be inviolable. …. Arbitrary or unlawful search of the body … shall be prohibited’

A29 Basic Law: ' The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or intrusion into, a resident's home or other premises shall be prohibited.’

A30 Basic Law: The freedom and privacy of communication of Hong Kong residents shall be protected by law. No department or individual may, on any grounds, infringe … except in accordance with legal procedures …’

A 39, A28, A29 and A30 are little tested yet in relation to privacy, but decisions on European Convention on Human Rights and US Bill of Rights decisions may be relevant

A30 now being tested in the HK courts re telecomms surveillance A 29-30 are not directly protected in BORO



Special ‘Privacy torts’ RG ‘A special tort of invasion of privacy?’

US law - Since Warren and Brandeis’ “The Right to Privacy” (1890) has developed 4 ‘privacy torts’ by a mixture of common law and legislation:

'intrusion’ 'public disclosure of private facts' 'appropriation' 'false light'

Most other common law jurisdictions have not followed as yet, either by common law or by statute:

Canadian provinces have legislation Hong Kong LRC has recommended statutory privacy torts (2004) ALRC now recommends a statutory tort for Australia; NSWLRC

likely to follow



Proposed privacy torts in Hong Kong

HK Law Reform Commission recommends (2004) statutory torts of invasion of privacy

versions of ‘intrusion’ and ‘public disclosure’ torts partly to comply with ICCPR A17 See the Executive Summary of the Report in Materials #1



Privacy tort(s) - common law Common law courts still undecided in most countries

outside the USA But recent decisive rejection in the UK However, adopted in NZ Also now two District Ct decisions in Australia

Will breach of confidence expand further to protect privacy, as it has done in the UK?

Will a separate privacy tort at common law emerge in other countries? - or will it only do so by statute?

Will UK law diverge from Australian, Hong Kong or other common law countries on either or both of these points?



UK courts consider a ‘privacy tort’

Cases not involving breach of confidence -these are the real test of a separate tort Kaye v Robertson [1991] FSR 62 - Actor

photographed without consent in private hospital room

Glidewell LJ held no right of privacy against intrusive photography

Most other UK cases have involved extensions of the law of confidence



UK courts consider a ‘privacy tort’ (2) Douglas v Hello [2000] EWCA Civ 35 (UK CA) - Wedding of

actors filmed in secret by persons unknown despite clear notice to all attending wedding that filming was not allowed; application here was only for interim injunction against publication

Sedley LJ found a strong case on privacy grounds: “The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy”

Brooke LJ found a strongly arguable case on confidentiality grounds, but not (in the event of a photographer unaware of the warnings) on ‘breach of privacy’ grounds (like Kaye v Robertson)

[Now decided by CA in 2005 on confidence grounds]



UK courts consider a ‘privacy tort’ (3)

A v B & C [2002] EWCA Civ 337 - CA attempts to limit consideration of a

privacy tort: in most ‘if not all’ situations where privacy protection is justified, it will be protected by breach of confidence (at least since the Human Rights Act 1998, which expands UK confidence law)

The ‘vexed question’ of a separate privacy tort may then be ignored



UK courts consider a ‘privacy tort’ (4) Wainwright v Home Office [2003] UKHL 53

Mother required to undress to visit prisoner son, but no physical contact; issues of visibility through window; emotional distress

Unanimous HL decision that there is no general tort of invasion of privacy in English law

Court of Appeal followed Kaye etc to reach same conclusion Distinguishes privacy as a value supporting extensions of some

existing principles from privacy as a legal principle itself Sees Douglas v Hello as merely a call to re-name (and extend?) the

action for breach of confidence A very conservative judgment: simply finds there are no precedents

for such a tort (without detailed examination) and ‘rejects the invitation’ to develop one.

See Patrick Gunning – ‘Casenote on Wainwright v Home Office’

(2003) 10(6) PLPR 111 (in materials)



UK courts consider a ‘privacy tort’ (5) -

Implications of Wainwright for Australia? Casenote by Gunning (materials) (2003) 10

PLPR 111 HL decisions only influential, but cogent

arguments needed to depart from a unanimous HK decision

Hoffman LJ said UK Human Rights Act 1988 ‘weakens’ arguments for a privacy tort - but the ‘overwhelming impression’ of the judgments is they would have reached the same decision in its absence



NZ’s privacy tort? New Zealand common law may have developed a

privacy tort, at least of the ‘public disclosure of private facts’ type

Earlier cases (Tucker, Bradley) involved only interlocutory injunctions being granted - See Reading Guide for discussion

Prof Burrows identified elements from cases: (I) A ‘public disclosure’ of (ii) ‘private‘ facts. (iii) ‘… highly offensive and objectionable to a reasonable

person of ordinary sensibilities.’ (iv) Subject to public interest defence.



NZ’s privacy tort (2) Earlier NZ cases supported a tort of public

disclosure of private facts: P V D [2000] 2 NZLR 591 (Nicholson J)

P sought to restrain newspaper from disclosing he had been treated at a psychiatric hospital

No breach of confidence: info may have been received from a non-confidential source

Adopts same 4 factors as Burrows as a tort of ‘public disclosure of private facts’

Final injunction in favour of P, prohibiting D from publishing anything linking P to events concerned



NZ’s privacy tort? (3) Hoskins v Runting

Magazine took secret photos of TV presenter’s wife going shopping with her two young children; their photos had never been published; action taken for children (see facts in Evans article in materials)

1st instance (2003) Randerson J (see Evans 10 PLPR 61) No confidence claim due to public location (and no confidences

breached in finding him) Would not be a ‘public disclosure of private facts’, due to the photo

being taken in a public place Rejects existence of general privacy tort in NZ: no authority; too big a

departure for the Courts Supports UK approach of extension of the law of breach of confidence

to some situations where ‘a pre-existing relationship is no longer necessary, and a duty to respect confidence may be imposed having regard to the nature of the material which comes into the D’s possession’



NZ’s privacy tort? (4) Hosking v Runting [2004] NZCA 34

Evans (2004) 11 PLPR 34 article (in materials) CA by 2/1 upheld tort of wrongful publication of private facts Basis of tort: (I) facts in respect of which there is a reasonable

expectation of privacy; (ii) publicity to facts that would be highly offensive to an objective reasonable person

Here, P’s claim rejected on facts: innocuous photos in public places do not satisfy either element

Indicates damages, not injunction, primary remedy Best way to balance privacy with right of freedom of expression in

NZ Bill of Rights Act 1990 Similar test re injunction availability as in defamation

All 3 JA rejected UK approach of expanding breach of confidence



Australia - privacy tort? Lenah v ABC [2001] HCA 63

Casenote by Gunning; article by Lindsay Information obtained by trespassers in a possum abbatoir

and passed to a media organisation Lenah’s 3 grounds for restraining ABC (all dismissed):

(I) Simply unconsionable to publish material knowingly obtained unlawfully (Earlier cases had restrained media where they were the trespassers - not so here) - HCA majority rejected unconsionability as a separate equitable ground for restraint.

(II) Information obtained by trespass should be treated by analogy with confidential information, and third party recipients restrained (P had conceded there was no confidentiality - fatal flaw in case?) - HCA majority rejected this (but 4 favoured other grounds of restraint)



Australia - privacy tort? (2) Lenah’s 3 grounds for restraining ABC (cont):

Some raised equitable interests in copyright material, or a fiduciary relationship (grounds not argued)

(II) A tort of invasion of privacy Some considered no privacy rights for corporations None found for Lenah on this ground

Lenah’s privacy implications 5/6 HC Js considered the question of a tort of invasion of

privacy still open Victoria Park is no authority that there is no such tort Some only suggested extensions of confidence law

See comments by Lindsay on effect on Australian law of ‘ad hoc somewhat chaotic reasoning’



Australia - privacy tort? (3) Grosse v Purvis [2003] QDC 151

See articles by Telford; Greenleaf Only case to find a privacy tort - but no appeal from District Court decision Facts essentially a case of ‘stalking’ - elements found - $178,000 damages Skoien J’s elements of the action:

(a) willed act by D (b) intruding on privacy or seclusion of P (c) manner highly offensive to a reasonable person of ordinary sensibilities (d) causes P detriment or hinders P doing lawful acts

An ‘intrusion’ version of a privacy tort - no appeal, so will not be a significant basis for Australian developments

Case was settled and did not proceed on appeal to Qld SC Not given any weight in Giller v Procopets [2004] (private facts)



Australia - privacy tort? (4) Doe v ABC (2007) VCC 281

Journalists disclosed identity of rape victim in new stories; psychological damage followed

Hempel J found for P on 4 grounds including: Breach of confidence - Says applies Gleeson CJ’s criteria for

breach of confidence re information where a person has a reasonable expectation it will remain private

Invasion of privacy tort - Here, held only that there was a tort of negligent unreasonable disclosure of private facts

Graham Greenleaf ' Doe v ABC: A new version of a privacy tort?' (2007) (unpublished casenote)

Did not proceed on appeal to Vic SC



Australia - privacy tort? (4) ALRC recommends privacy tort (2008) (Ch 74)

Rec. 74-1 for a statutory cause of action for a ‘serious invasion of privacy’ where: There is a ‘reasonable expectation of privacy’; Re conduct is ‘highly offensive to a reasonable person of

ordinary sensibilities’; Public interest in protecting privacy outweighs other public

interests (including freedom of expression); and Intentional or reckless acts involved.

Non-exhaustive list of conduct within the action to be included

Any common law privacy action to be abolished Press Release summarises (in materials)



Australia - privacy tort? (4) Criticisms (Greenleaf & Waters submission):

Does ‘offensive’ capture all reactions? (eg accidental disclose of HIV status - distressing)

Why should liability for negligent actions be completely exempt?

Can’t other competing public interests limit this? Should the Privacy Commissioner have some role in such

actions? Eg standing to intervene The proposed defences do not explicitly require

proportionality to the harm of the invasion Why not limit damages (eg $40K in NSW legislation) instead

of excluding negligence? NSWLRC yet to make its final report on an action



Breach of confidence (BoC) RG 4.4. Breach of confidence re personal

information Limited scope of the action Relationships involving obligations of

confidence 'Improperly obtained information’ Governments and obligations of confidence Bof C an essential part of all information

privacy laws - make no sense without it



BoC - Scope and limits Three classic elements (Coco v Clarke 1966)

(I) Information having ‘the quality of confidence’ (ii) Disclosure under circumstances of confidence (iii) Unauthorised use (including disclosure and excess use)

Scope/requirement of relationships is now uncertain Duty uncertain for most modern commercial relationships Now uncertain if (ii) (any prior relationship) is needed; nature

of information alone may create obligations of confidence Breach of confidence is expanding, but why?

to cover ‘obtaining’ of information in some circumstance? (where unconscionable?)

or just because some information is considered ‘private’?



BoC - Possible parties Is duty only owed to the discloser of the information?

No duty owed to the ‘data subject’ per se (see Fraser v Evans [1969] 1 QB 349) - recent cases without relationships open this up

Third party recipients of info. will owe a duty once they become aware of the original circumstances of confidence

Situations to consider (Who can S sue?) S - subject of information; A - ‘discloser’ [often same as S: S/A]

B - recipient [from A] / collector; C - 3rd P recipient [from B] D - Rest of World

S/A to B to D S/A to B to C to D A to B to D



BoC - Expansion in recent years Franklin v Giddens [1978] 1 Qd R 72 (Qld SC) - theft of

budwood from orchard gave rise to BOC action Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804:

Laws J said "I entertain no doubt that disclosure of a photograph may, in some circumstances, be actionable as a breach of confidence..’ - surreptitious photography

Douglas v Hello [2000] EWCA Civ 35 (UK CA) - Wedding of actors filmed in secret by persons unknown despite clear notice to all attending wedding that filming was not allowed

Brooke LJ found a strongly arguable case on confidentiality grounds, but not on ‘breach of privacy’ grounds

Sedley LJ found a strong case on privacy grounds (see earlier) An injunction against publication was refused on the balance of

convenience, partly because privacy already surrendered for profit.



BOC - Expansion in recent years Lenah v ABC [2001] Gleeson CJ at [42] and [55] seems to proposed a

test for BoC - others have interpreted it this way A v B & C [2002] EWCA Civ 337 - CA’s ‘Guideline’ (ix):

Adopts Gleeson CJ’s Lenah test of what is ‘private’ ‘If there is an intrusion in a situation where a person can reasonably

expect his privacy to be respected then that intrusion will be capable of giving rise to liability in an action for breach of confidence unless the intrusion can be justified.’

‘The bugging of someone's home or the use of other surveillance techniques are obvious examples…’.

‘But the fact that the information is obtained as a result of unlawful activities does not mean that its publication should necessarily be restrained …’ as Bof C [see Lenah]

‘On the other hand, the fact that unlawful means have been used … could well be a compelling factor...’



BoC - Campbell v MGN Campbell v Mirror [2002] EWHC 499 (QB) Morland J

Naomi Campbell filmed leaving Narcotics Anonymous meeting (ie in a public place)

breach of confidence (disclosure of NA attendance) by a person unknown (assumed to be her staff or NA staff) was enough to make the Mirror liable as 3rd P for photographing.

followed Gleeson CJ in Lenah v ABC in deciding that NA attendance was 'easily identifiable as private and disclosure of that information would be highly offensive to a reasonable

person of ordinary sensitivities'. Reversed on appeal by Court of Appeal, then original

decision upheld by House of Lords - see article by Lindsay for analysis



BoC - Campbell v MGN Campbell v Mirror [2002] EWHC Civ 1373

Court of Appeal allowed MGN's appeal Photos here 'were of a street scene. They did not

convey any information that was confidential. That information was conveyed by the captions.’

Covert taking of photos was not relied on as a ground of complaint

Additional information in captions (NA attendance) was not sufficiently offensive (on Gleeson CJ test) - contra Morling J



BoC - Campbell v MGN

Campbell v MGN [2004] UKHL 22 Facts: Naomi Campbell was photographed (in a public

street) leaving a Narcotics Anon meeting; C did not claim drug addiction was confidential (justified because she had denied it) but that NA attendance was confidential as private info, and which MGN had not justified publishing

HL held BoC could provide protection, but disagreed on some aspects of facts

HL decision influenced strongly by UK obligations under European Convention on Human Rights

See D Lindsay ‘Naomi Campbell in the House of Lords’ (2004) Vol 11 No 1 PLPR p4



BoC - UK’s obligations to protect privacy

Von Hannover v Germany [2004] ECHR Held that Member States of ECHR had an

obligation under A8 to protect individuals from unjustified invasions of private life by other individuals or organisations (ie ‘horizontal effect’) if necessary by legislating

Princess Caroline of Monaco sued re photos of her engaged in ‘private’activities in public places published by German magazines



BoC - Douglas v Hello! (No 2) See T Wilson in (2005) 2(1) Priv LB 7-10

TJ held in favour of both Douglases and OK! (i) Re Douglases, BoC because it was a private event - £7000

each for distress and inconvenience (ii) Re OK!, £1m+ for BoC (like a trade secret), on the basis of

the exclusive licence to OK! Douglas v Hello! (No 2) [2005] EWCA Civ 595

Unanimous CA judgment upholding (I), reversing (ii) See [74]-[82] the CA’s interpretation of Campbell Finds [82] essence of HL in Campbell as “knowledge, actual or

imputed that information is private will normally impose on anyone publishing that information the duty to justify what, in the absence of justification, will be a wrongful invasion of privacy.”



BoC - Douglas v Hello! (No 2) CA also redefines the law of BoC [83]:

‘circumstances of confidence’ not necessary ‘if it is plain that the information is confidential’

‘for … “confidential” one can substitute… “private”’ “What is the nature of private information? It

seems to us that it must include information that is personal to the person who possesses it and that he does not intend shall be imparted to the general public”

Does this assist clarity in UK law? What is its possible relevance in Australia?



BoC - Current UK position Max Mosley v News Group Newspapers Limited

[2008] EWHC 1777 (QB) An ‘old fashioned’ BoC case based on a pre-existing

relationship - but Ct explains why UK BoC has changed Explains relationship between UK and European laws,

Equal standing of A8 (privacy) and A10 (freedom of expression) of ECHR

Human Rights Act 1988 (UK) requires Cts to implement ‘Horizontal effect’ recognised in Campell v MGN Role of ‘proportionality’ in public interest defences Privacy interests still exist in public places (Von Hannover,

Peck)



BoC - Current UK position (2) Mosley case (cont.)

Here: Recording was on private property, not in public Sexual activity - ‘at the extreme of intimate intrusion’ ‘Woman E’ breached ‘old fahioned duty of confidence’ as

well as A 8 rights Public interest based on (false) allegations of Nazi role-play

and Holocaust mockery; publication was inconsistent with ‘responsible journalism’

Relevance to Australia? Will our BoC law go in this direction (despite lack of A8)? Would a statutory right in Australia be similarly interpreted?



BOC - Governments Johns v Australian Securities Commission (1993)

178 CLR 408 a statute giving a power to obtain information (including

personal information) defines the purpose for which it can be used, expressly or impliedly, so that any other use is a breach of a statutory duty of confidence.

Applies to all governments, whether IPPs apply or not UK: similar decisions in Marcel v Commissioner of

Police [1992] Ch 225 and Morris v Director of the Serious Fraud Office [1993] 3 WLR 1

Query inconsistent HK decision Hall v Commissioner of ICAC [1987] HKLR 210

Also Privacy Act 1988 (Cth) Pt VIII re Cth Govt



Piecemeal tort protection RG 'Other Tortious Protection of privacy'

All other torts have significant defects Defamation Negligence Trespass Intentional infliction of emotional distress? Trespass to the person (battery and assault) Private nuisance Copyright Malicious falsehood



Defamation Requires falsity - most privacy invasions involve

disclose of true information Qualified privilege defences do not require fair

practices It has no mechanism for people to discover when

defamations occur Useful as a supplement to access and correction IPPs

Very expensive remedy In summary

mainly useful for false media disclosures Rarely useful against disclosures in bureaucratic settings



Negligence Liability for negligent statements is very limited

The recipient can sometimes sue (Hedley Byrne etc) Can the subject of the information ever sue?

Spring v Guardian Assurance PLC (1994) - House of Lords held employer owed a duty of care to the subject of a negligent reference, an ex-employee

Sullivan v Moody [2001] HCA 59 - investigators of sexual assault did not owe duty of care to one parent concerning information about the other

Lai Hing Tong v Attorney-General [1990] 1 HKLR 56- recovered damages in negligence for the incorrect recording a communication of a criminal record, as a consequence of which he lost three positions.



Intentional infliction of emotional distress?

Wilkinson v Downton [1897] 2 QB 57 - damages for nervous shock suffered by a woman when told (falsely) that her husband's legs were broken

Home Office v Wainwright Court of Appeal - Wolff LCJ considered Wilkinson should

be limited to 'actual recognised psychiatric illness or bodily injury’; embarrassment of stripping not sufficient

House of Lords - Agreed, adding no applicability because there there was no intention to harm by prison officers

This tort is now not likely to provide signficant privacy protection



Trespass to the person

Unlikely to be extended as privacy protection

Home Office v Wainwright [2001] EWCA Civ 2081 -

battery is restricted to direct physical contact, not where persons are caused to do something to themselves

No assault as there was no threat to undress P by force



Trespass to land

Requires that ‘without justification, the defendant enters on the plaintiff's land, remains on such land or places any object upon it.’ (HKLRC 1999)

physical encroachment upon premises is needed, such as

D installs a listening device inside P’s premises entry onto premises by unauthorised TV crew

Does not apply to photography from adjoining land (Victoria Park), from overhead (Bernstein) etc

Damages can be high eg TCN9 v Anning [2002] NSWCA 82: reducing damages from $100K to $50K



Private nuisance

Nuisance requires 'a condition or activity which unduly interferes with the use or enjoyment of land' (Clerk and Lindsell on Torts)

‘The interference must continue for a prolonged period of time. It may take the form of physical damage to the property or the imposition of discomfort upon the occupier.’ (HKLRC 1999)

Khorasandjian v Bush [1993] QB 727 - extension of nuisance to harassment by telephone calls

Bernstein v Skyviews [1978] 1 QB 479 - no trespass to land to take a single photo from an aeroplane, but constant surveillance might be



Copyright

If a person owns copyright in the form of expression of information about them (and, most likely, by them), then copyright will prevent reproduction etc of that expression

Increasingly important with user-generated content (UGC) on sites such as MySpace and Flickr

Does not provide protection for the underlying information / facts

Again, this limit is very important with UGC sites

Loss of copyright to UGC sites through Terms of Service (eg Photobucket) can mean loss of privacy protection



Other forms of protection Breach of contract, and inducement to

breach of contract Breach of statutory duty Administrative law

very rarely provides damages or other compensatory mechanisms

Often overlap IPPs, but IPPs may provide better remedies, particularly damages

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