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BEYOND INFORMATION: PHYSICAL PRIVACY IN ENGLISH LAW

Published online by Cambridge University Press:  17 July 2014

N. A. Moreham
N. A. Moreham*
Affiliation:
Associate Professor of Law, Victoria University of Wellington.
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Abstract

Although English privacy law has developed significantly over the past two decades, it continues to focus almost exclusively on the disclosure of private or confidential information. This article argues that if privacy is to be comprehensively protected, then the importance of physical privacy – which is breached when a person is looked at, listened to or recorded against his or her wishes – must also be recognised. After discussing what physical privacy is and why existing protections for it are inadequate, the author contends that a physical privacy action can, and should, be developed from within English common law.

Keywords

Privacyphysical privacyintrusionmisuse of private informationbreach of confidenceintentional infliction of emotional distressData Protection Act 1998Article 8 European Convention on Human RightsHuman Rights Act 1998surveillance
Type
Articles
Information
The Cambridge Law Journal , Volume 73 , Issue 2 , July 2014 , pp. 350 - 377
Copyright
Copyright © Cambridge Law Journal and Contributors 2014 

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References

1 Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406.

2 Gerety, T., “Redefining Privacy” (1977) 12 Harvard Civil Rights–Civil Liberties Law Review 233Google Scholar, 265.

3 See the Restatement of the Law Second, Torts 2d (Vol.3), 1976, § 652B; Jones v Tsige (2012) ONCA 32, 333 D.L.R. (4th) 566; and C v Holland [2012] NZHC 2155, [2012] 3 N.Z.L.R. 672.

4 See, e.g., Littman, M. and Carter-Ruck, P. (chairmen), Privacy and the Law: A Report by Justice (London 1970), 41–42Google Scholar; Younger, K. (chairman), Report of the Committee on Privacy (London 1972)Google Scholar, at [53]; Calcutt, D. (chairman), Report of the Committee on Privacy and Related Matters (London 1990)Google Scholar, at [17.8]–[17.9]; New South Wales Law Commission, Report 120: Invasion of Privacy (Sydney 2009)Google Scholar, at [4.3]; Australian Law Reform Commission, Discussion Paper 80: Serious Invasion of Privacy in the Digital Era (2014), Proposal 5-1; and New Zealand Law Commission, Report 113: Invasion of Privacy: Penalties and Remedies – Review of the Law of Privacy Stage 3 (Wellington 2010), 3Google Scholar.

5 Benn, S., “Privacy, Freedom, and Respect for Persons” in Pennock, J. and Chapman, J. (eds.) Privacy: NOMOS XIII (New York 1971), 6–7Google Scholar.

6 See, for example, Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406, at [4]; the evidence of targets of media “door-stepping” in AM v News Group Newspapers Ltd. [2012] EWHC 308 (QB), at [4] and AAA v Associated Newspapers Ltd. [2012] EWHC 2103 (QB), at [15]–[16] and [31] (although the reliability of some witnesses’ recollection of events was doubted in the latter case, their evidence about the effect it had upon them was not called into question (see paras. [40]–[49]); and Rt. Hon Lord Justice Leveson, An Inquiry into the Culture, Practices and Ethics of the Press, House of Commons Paper No. 780 (London 2012), 484, at [3.4]. Further, the claimant in C v Holland [2012] NZHC 2155, [2012] 3 N.Z.L.R. 672 (interviewed by this author and Dr Yvette Tinsley on 27 March 2014) suffered distress and anxiety so acute that she was unable to go out in public for a week after discovering that her flatmate had filmed her in the shower. Other effects such as insomnia, nightmares, mistrust of others, fear of the defendant and feelings of shame continued for months after the discovery of the filming.

7 See e.g., respectively, Barrymore v News Group Newspapers Ltd [1997] F.S.R 600; McKennitt v Ash [2006] EWCA Civ 1714; Associated Newspapers Ltd v HRH Prince of Wales [2006] EWCA Civ 1776; and Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB), [2008] E.M.L.R. 20.

8 See e.g., respectively, Amati v City of Woodstock, Illinois 829 F.Supp. 998 (N.D.Ill 1993); Harkey v Abate 346 N.W.2d 74 (Mich.App. 1983); C v Holland [2012] NZHC 2155, [2012] 3 N.Z.L.R. 672; Benitez v KFC National Management 714 N.E.2d 1002 (Ill.App.2 Dist. 1999); Giller v Procopets [2008] VSCA 236 (10 December 2008); and Rhodes v Graham 37 S.W.(2d) 46 (1931).

9 Gavison, R., “Privacy and the Limits of the Law” (1979) 89 Yale L.J. 421Google Scholar, 436. See also Daniel Solove's broad taxonomy in “A Taxonomy of Privacy” (2006) 154 U. Pa. L. Rev. 447.

10 For a fuller development of this argument, see Moreham, N. “The Protection of Privacy in English Common Law: A Doctrinal and Theoretical Analysis” (2005) 121 L.Q.R. 628Google Scholar. Many academics divide the concept along similar lines. See, e.g., Gavison, note 9 above, at pp. 428–40; Solove, note 9 above, at p. 489ff; T. Gerety, note 2 above, p. 261ff; S. Benn, note 5 above, pp. 3–4; Rachels, J., “Why Privacy is Important” (1975) 4 Phil. & Publ. Aff. 323Google Scholar, 326; De Cew, J. Wagner, “The Scope of Privacy in Law and Ethics” (1986) 5 L. & Phil. 145Google Scholar, 153–58; van den Haag, E., “On Privacy” in Pennock, J. and Chapman, J. (eds.), Privacy: NOMOS XIII (New York 1971), 149Google Scholar, 149–53; Mulheron, R., “A Potential Framework for Privacy? A Reply to Hello!” (2006) 69 M.L.R. 679Google Scholar, 696–701; Hunt, C., “Conceptualizing Privacy and Elucidating its Importance: Foundational Considerations for the Development of Canada's Fledgling Privacy Tort” (2011) 37 Queen's L.J. 167Google Scholar, 201; Wacks, R., Privacy and Media Freedom (Oxford 2013)CrossRefGoogle Scholar, ch. 6; and Hughes, K., “A Behavioural Understanding of Privacy and its Implications for Privacy Law” (2012) 75 M.L.R. 806Google Scholar, 810–11. See also Parker, R., “A Definition of Privacy” (1974) 27 Rutg. L. Rev. 275Google Scholar, 275–88.

11 Daniel Solove divides informational privacy into similar categories – information collection, information processing, and information dissemination – although his conception of the privacy interest is broader than the one offered here: see Solove, note 9 above, at p. 489ff.

12 This definition of physical privacy is narrower than the concept of intrusion promulgated in the Restatement of the Law Second, Torts 2d (Vol.3), 1976, § 652B; Jones v Tsige (2012) ONCA 32, 333 D.L.R. (4th) 566; C v Holland [2012] NZHC 2155, [2012] 3 N.Z.L.R. 672; Goodwin v MGN Ltd. [2011] EWHC 1437 (QB), [2011] E.M.L.R. 27, at [85]–[130]; CBT v News Group Ltd. [2011] EWHC 1326 (QB), at [23]–[26]; and by commentators such as Solove, note 9 above, at p. 552; Wacks, Privacy and Media Freedom, note 10 above, ch. 6.

13 This is because recording facilitates further sensory perception by those with access to the recording.

14 Wacks, R., Personal Information: Privacy and the Law (Oxford 1989), 248Google Scholar. See also Wacks, Privacy and Media Freedom, note 10 above, pp. 120–22; 186–219.

15 See De May v Roberts (1881) 46 Mich. 160, 9 N.W. 146.

16 Article 8 provides that: “(1) Everyone has the right to respect for his private life and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.

17 See, e.g., Leander v Sweden (Application no. 9248/81) (1987) 9 E.H.R.R. 433, at [48]; Rotaru v Romania (Application no. 28341/95) (2000) 8 BHRC 449, at [44]; and Segerstedt-Wiberg v Sweden (Application no. 62332/00) (2007) 44 E.H.R.R. 2, at [72]–[73].

18 See, respectively, Pretty v United Kingdom (Application no. 2346/02) (2002) 35 E.H.R.R. 1, at [61]; and YF v Turkey (Application no. 24209/94) (2004) 39 E.H.R.R. 34, at [33]; and Peck v United Kingdom (Application no. 44647/98) (2003) 36 E.H.R.R. 41, at [57].

19 See, respectively, Wainwright v United Kingdom (Application no. 12350/04) (2007) 44 E.H.R.R. 40 and Gillan and Quinton v United Kingdom (Application no. 4158/05) (2010) 50 E.H.R.R. 45; Funke v France (Application no. 10828/84) (1993) 16 E.H.R.R. 297; Chappell v United Kingdom (Application no. 10461/83) (1989) 12 E.H.R.R. 1; Chalkley v United Kingdom (Application no. 63831/00) (2003) 37 E.H.R.R. 30; Hewitson v United Kingdom (Application no. 50015/99) (2003) 37 E.H.R.R. 31; and Perry v United Kingdom (Application no. 63737/00) (2004) 39 E.H.R.R. 3.

20 Söderman v Sweden (Application no. 5786/08), Judgment of 12 November 2013, not yet reported, at [117].

21 Reklos and Davourlis v Greece (Application no. 1234/05) (2009) E.M.L.R 16.

22 Ibid., at para. [40] (emphasis added). The court also took account of the fact that the photographs were taken in a place that was accessible only to the doctors and nurses of the clinic (at para. [37]); that the baby's image was the sole subject of the photographs (at para. [37]); there was no public interest in the baby (at para. [41]); that the parents did not consent to the photography (at para. [41]); and that the photographer retained the negatives (at para. [42]). For a useful critique of the court's reasoning see K. Hughes, “Photographs in Public Places and Privacy” [2009] 2 J.M.L. 159, 163–68.

23 Söderman v Sweden (Application no. 5786/08), Judgment of 12 November 2013, not yet reported, at [85].

24 Ibid., at [79] and von Hannover v Germany (No. 2) (Application no. 40660/08 and 60641/08) (2012) 55 E.H.R.R. 15, at [104]. The Grand Chamber has reiterated, however, that the court's task is not to “take the place of the national courts” but to review whether the decisions taken are compatible with the provisions of the Convention relied on (von Hannover v Germany (No. 2) (Application no. 40660/08 and 60641/08) (2012) 55 E.H.R.R. 15, at [105] and Axel Springer AG v Germany (Application no. 39954/08) (2012) 55 E.H.R.R. 6, at [86]).

25 Söderman v Sweden (Application no. 5786/08), Judgment of 12 November 2013, not yet reported, at [85].

26 See, e.g., Douglas and others v Hello! Ltd [2000] EWCA Civ 353, [2001] Q.B. 967 (CA), at [111] (per Sedley L.J.).

27 Courts, as “public authorities”, have held themselves bound by section 6 of the Human Rights Act 1998 (“HRA”) to act consistently with Convention principles (see Douglas and others v Hello! Ltd [2000] EWCA Civ 353, [2001] Q.B. 967 (CA), at [111] (per Sedley L.J.) and [166] (per Keene L.J.); Campbell v MGN Ltd. [2004] UKHL 22, [2004] A.C. 457, at [114] (per Lord Hope) and [132] (per Baroness Hale)). Reference has also been made to the United Kingdom's positive obligations (ibid.) and the enactment of section 12(4) of the HRA (Douglas and others v Hello! Ltd [2000] EWCA Civ 353, [2001] Q.B. 967 (CA), at [92]–[95] (per Brooke L.J.) and [133] (per Sedley L.J.).

28 Campbell v Mirror Group Newspapers Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [132] (per Baroness Hale).

29 HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776, [2008] Ch. 57, at [25] (per Lord Phillips MR, speaking for the court). See also Campbell v MGN Ltd. [2004] UKHL 22, [2004] A.C. 457, at [17] (per Lord Nicholls) and [132] (per Baroness Hale).

30 G. Phillipson and A. Williams “Horizontal Effect and the Constitutional Constraint” (2011) 74 M.L.R. 878, 878-79. See also M. Hunt “The Horizontal Effect of the Human Rights Act” [1998] P.L. 423, especially 441–42; and A. Lester and D. Pannick “The Impact of the Human Rights Act on Private Law: The Knight's Move” (2000) 116 L.Q.R. 380.

31 See, e.g., Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB), [2008] E.M.L.R. 20, at [103]–[104] in which Eady J. took account of Strasbourg cases on surveillance and clandestine recording when deciding that the claimant had a reasonable expectation of privacy.

32 Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406, at [18] and [31]–[32].

33 For discussion of the development of the action see Tchenguiz v Imerman [2010] EWCA Civ 908, at [54]–[71].

34 See, e.g., Duchess of Argyll v Duke of Argyll and others [1967] 1 Ch. 302 and Stephens v Avery [1988] 1 Ch. 449.

35 See, e.g., Francome and another v Mirror Group Newspapers Ltd. and others [1984] 1 W.L.R. 892; Shelley Films Ltd. v Rex Features Ltd. [1994] E.M.L.R. 134; Creation Records and others v News Group Newspapers Ltd. [1997] E.M.L.R. 444; and Attorney-General and Observer Ltd. v Times Newspapers Ltd. [1990] 1 A.C. 109, 281.

36 See Douglas and others v Hello! Ltd [2000] EWCA Civ 353, [2001] Q.B. 967 (CA), especially [111] (per Sedley L.J.).

37 Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [14] and [21] (per Lord Nicholls). See also ibid., at [96] (per Lord Hope) and [134] (per Baroness Hale).

38 See, e.g., McKennitt v Ash [2006] EWCA Civ 1714, [2008] Q.B. 73, at [11] and Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [17]-[21].

39 All the tests in the leading case of Campbell v MGN Ltd. refer to the dissemination of information (see Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [21] (per Lord Nicholls), [92] (per Lord Hope) and [134]) (per Baroness Hale).

40 See, e.g., CBT v News Group Newspapers Ltd [2011] EWHC 1232 (QB); Goodwin v MGN Ltd. [2011] EWHC 1437 (QB), [2011] E.M.L.R. 27; and Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457.

41 See, respectively, Theakston v Mirror Group Newspapers Ltd. [2002] EWHC 137 (QB), [2002] E.M.L.R. 22 and Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB), [2008] E.M.L.R. 20; and Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch. 481.

42 Theakston v Mirror Group Newspapers Ltd. [2002] EWHC 137 (QB), [2002] E.M.L.R. 22, at [78]. See also Douglas and others v Hello! Ltd [2000] EWCA Civ 353, [2001] Q.B. 967 (CA), at [165]; Campbell v Mirror Group Newspapers Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [72]; D v L [2003] EWCA Civ 1169, [2004] E.M.L.R. 1 at [23]; and Douglas v. Hello! Ltd. (No. 6) [2005] EWCA Civ 595, [2006] Q.B. 125, at [106].

43 Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [122] (per Lord Hope).

44 Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 W.L.R. 592, at [66]–[67]. This is consistent with the Court of Appeal's approach in Associated Newspapers Ltd. v HRH Prince of Wales [2006] EWCA Civ 1776, [2008] Ch. 57; but, compare McKennitt v Ash [2006] EWCA Civ 1714, [2008] Q.B. 73 and Lord Browne of Madingley v Associated Newspapers Ltd. [2007] EWCA Civ 295, [2008] 1 Q.B. 103. For further discussion, see N. Moreham, “Breach of confidence and misuse of private information: how do the two actions work together?” (2010) 15 M.A.L.R. 265.

45 “Misuse” has traditionally involved something more than access to confidential information, such as disclosure to a third party or unauthorised exploitation of trade secrets. See Aplin, T., Bently, L., Johnson, P. and Malynciz, S., Gurry on Breach of Confidence: The Protection of Confidential Information 2nd ed. (Oxford 2012)Google Scholar at [15.02] and [15.18]–[15.23].

46 Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 W.L.R. 592, at [68]–[69] (emphasis added) citing Copland v United Kingdom (Application no. 62617/00) (2007) E.H.R.R. 37.

47 Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 W.L.R. 592, at [72].

48 Jones v Tsige (2012) ONCA 32, 333 D.L.R. (4th) 566. For discussion of this case, see Bennett, T., “Privacy, Corrective Justice, and Incrementalism: Legal Imagination and the Recognition of a Privacy Tort in Ontario” (2013) 59 McGill L.J. 49Google Scholar.

49 Breach of confidence cases involving the disclosure of photographs include Shelley Films Ltd v Rex Features Ltd [1994] E.M.L.R. 134 and Creation Records and others v News Group Newspapers Ltd [1997] E.M.L.R. 444. See also Douglas and others v Hello! Ltd [2000] EWCA Civ 353, [2001] Q.B. 967 (CA), at [113]–[127] (per Sedley L.J.). Some protection against the collection, storage and dissemination of private information (including photographs) is also provided by legislation such as the Regulation of Investigatory Powers Act 2000 (“RIPA”), the Computer Misuse Act 1990 and the Data Protection Act 1998 (“DPA”). However, since comprehensive protection of these informational privacy interests is provided by the common law, these additional avenues of redress will not be discussed here.

50 Raymond Wacks also recognises that the action has some limited potential to protect against intrusion: see Wacks, Privacy and Media Freedom, note 10 above, pp. 205–11.

51 Wilkinson v Downton [1897] 2 Q.B. 57, 58.

52 Ibid., at pp. 58–59.

53 See Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All E.R. 932, at [12]; Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406, at [44]; and Wilkinson v Downton [1897] 2 Q.B. 57, at 59.

54 See Wilkinson v Downton [1897] 2 Q.B. 57, 59 and Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All E.R. 932, at [12] (although immediately after her exposition of the objective version of the test, Hale L.J. cited with approval a passage from Khorasandjian v Bush [1993] Q.B. 727 supporting a subjective formulation (at [12])). See also Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406, at [44]–[45], where Lord Hoffmann made it clear that the claimant is not required to show that the defendant “acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not”.

55 In Wainwright, Lord Woolf C.J. held that the claimants – who respectively experienced exacerbation of an existing depressive condition and post-traumatic stress disorder following an invasive strip search during a prison visit – had suffered damage which was capable of sustaining a Wilkinson v Downton claim (Wainwright v Home Office [2001] EWCA Civ 2081, [2002] Q.B. 1334, at [51]).

56 See the headnote to Janvier v Sweeney [1919] 2 K.B. 316 adopted by the majority of the Court of Appeal in Khorasandjian v Bush [1993] Q.B. 727, 735 and Wainwright v Home Office [2001] EWCA Civ 2081, [2002] Q.B. 1334, at [79] (per Buxton L.J.).

57 See “Physical Privacy in Strasbourg” above. The fact that all the leading Wilkinson v Downton cases pre-dated the application of the HRA might provide some support for this argument.

58 Hunter v Canary Wharf [1997] A.C. 655, 707.

59 Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All E.R. 932, at [11]–[12]; Wainwright v Home Office [2001] EWCA Civ 2081, [2002] Q.B. 1334 (CA), at [47]–[49] (per Lord Woolf CJ); and Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406, at [47] (per Lord Hoffmann).

60 Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406, at [44]–[46] (per Lord Hoffmann). See also para. [62] (per Lord Scott).

61 See, for example, Lord Hoffmann's observations about the, somewhat unprincipled, reasons for the action's inception (ibid., at para. [44]).

62 Sexual Offences Act 2003, s. 67. The sexual gratification can either be one's own (s. 67(1)) or, if the recording was made to facilitate another's observation, someone else's (ss. 67(2) and (3)).

63 See, respectively, Howlett v Holding [2006] EWHC 41 (QB), at [24]; R v. Hayes [1999] 3 All ER 816; Crawford v CPS [2008] EWHC 148 (Admin); and King v DPP (Unreported, Divisional Court, Kennedy L.J. and Jackson J., 20 June 2000). Since November 2012, “stalking” has also been a specific offence (see Protection from Harassment Act 1997 (“PHA”), ss. 2A and 4A). Harassing conduct is punishable with a fine, imprisonment for up to six months, and/or restraining order (see PHA, ss. 2 and 5 respectively).

64 RIPA, ss. 1(1) and (2) and 2(7). This includes messages on the voicemail facility of a public telecommunications system which have already been accessed by the recipient (Coulson v Regina [2013] EWCA Crim 1026).

65 See Douglas v Hello! Ltd. (No. 6) [2003] EWHC 786 (Ch), [2003] 3 All E.R. 996, at [230]; and Douglas and others v Hello! Ltd [2000] EWCA Civ 353, [2001] Q.B. 967 (CA), at [55]–[56]. For a complete survey of legislative protection against physical intrusion in English law, see Moreham, N. “Protection against Intrusion in English Legislation” in Witzleb, N., Lindsay, D., Paterson, M. and Rodrick, S. (eds.) Emerging Challenges in Privacy Law: Comparative Perspectives (Cambridge 2014)Google Scholar.

66 PHA, ss. 1 and 7(3). See also Majrowski v Guy and St Thomas's N.H.S. Trust [2006] UKHL 34, [2007] 1 AC 224, at [66] (per Baroness Hale).

67 See R v Henderson [2006] EWCA Crim 3264, at [10] in which the defendant claimed, albeit unsuccessfully, that his interest in women urinating was “visual” rather than sexual.

68 DPA, s. 32(1) and (2) (Privacy Principle 7, which relates to data security, is exempted).

69 DPA, s. 36.

70 See, for example, R v E [2004] EWCA Crim 1243, [2004] 1 WLR 3279, at [20] (no “interception” when a listening device in the defendant's car picked up just his end of a conversation on a mobile telephone); R v Smart [2002] EWCA Crim 772, [2002] Crim LR 684, at [68] (in which the same conclusion was reached under the Interception of Communications Act 1985 (UK)); and R v Hardy [2002] EWCA Crim 3012, [2003] 1 Cr. App. R. 30, at [31] (no interception where an undercover police office recorded his end of a telephone call). See also RIPA, s. 2(2).

71 It is criminal to intercept a private conversation on the telecommunications network but not to bug a conversation outside it (although if the bugging occurred on a private telephone network there is a civil action under s.1(3) of RIPA). On both a public or private network, the DPA might provide redress for eavesdropping but not if the listener is using a non-digital device or is collecting the information for “personal, household and family affairs”. And, again, there will be no actionable harassment unless the interception occurs more than once.

72 C v Holland [2012] NZHC 2155, [2012] 3 N.Z.L.R. 672; Hamberger v Eastman 206 A.2d 239 (1964); Roach v Harper 105 S.E.2d 564 (1958); Harkey v Abate 346 N.W.2d 74 (Mich.App. 1983); and Benitez v KFC National Management 714 N.E.2d 1002 (Ill.App.2 Dist. 1999).

73 Reklos and Davourlis v Greece (Application no. 1234/05) [2009] E.M.L.R 16 (discussed in “Physical Privacy in Strasbourg” above).

74 See Voicemail Claimant v Newsgroup Newspapers and Glenn Mulcaire, Generic Particulars of Claim.

75 Wainwright v Home Office [2003] UKHL 53, [2004] 2 A.C. 406, at [31]–[32].

76 R v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2001] QB 885 (CA), at [48]. See also [33] (per Lord Woolf M.R.).

77 Campbell v Mirror Group Newspapers Ltd. [2004] UKHL 22, [2004] 2 A.C. 457.

78 Ibid. at para. [15].

79 Campbell v Mirror Group Newspapers Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [51].

80 Ibid.

81 Reklos and Davourlis v Greece (Application no. 1234/05) [2009] E.M.L.R 16 and Söderman v Sweden (Application no. 5786/08), Judgment of 12 November 2013, not yet reported (discussed in “Physical Privacy in Strasbourg” above).

82 Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB), [2008] E.M.L.R. 20, at [17]. See also the HRA case of Wood v Commissioner for Police of the Metropolis [2009] EWCA Civ 414, [2009] 4 All E.R. 95, at [34] and [36] where Laws L.J. held that although the bare act of taking a photograph on the public street is not capable of engaging Article 8, it could if “aggravating features” such as harassment, hounding, assault, or intrusion into a person's home were present.

83 Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch. 481, at [17]–[18].

84 See Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch. 481, at [54]–[57] and the suggestion by the authors of Gurry on Breach of Confidence that “what may have concerned the Court of Appeal most in Murray was the intrusion into one's private life, rather than disclosure of private information” (Aplin et al., Gurry on Breach of Confidence, note 45 above, at [7.97] (original emphasis)).

85 Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [155]. See also ibid., at [75] (per Lord Hoffmann), [123] (per Lord Hope), but compare [30] per Lord Nicholls.

86 Goodwin v MGN Ltd. [2011] EWHC 1437 (QB), [2011] E.M.L.R. 27, at [85] citing Moreham, N. in Warby, M., Moreham, N. and Christie, I. (eds.), Tugendhat and Christie's Law of Privacy and the Media, 2nd ed. (Oxford 2011)Google Scholar at paras. [2.07], [2.08], [2.16] and [12.71]. Tugendhat J. said that the importance of “intrusion” has been recognised by Parliament with the enactment of the PHA and the HRA (Goodwin, ibid., at para. [86]). It should be noted, however, that Tugendhat J.'s concept of intrusion differed slightly from that promulgated by this author in the paragraphs which he cited in Goodwin (ibid.).

87 See particularly, Goodwin v MGN Ltd. [2011] EWHC 1437 (QB), [2011] E.M.L.R. 27, at [109], [111] and [120].

88 CBT v News Group Ltd. [2011] EWHC 1326 (QB), at [23] (original emphasis).

89 Eady J. was concerned about the “intrusion”, “distress” and “embarrassment” occasioned by “wall-to-wall excoriation in national newspapers” (CBT v News Group Ltd. [2011] EWHC 1326 (QB), at [24]). Tugendhat J. emphasised the “distress” which publication was likely to cause and the relationship between “intrusion” and harassment (see Goodwin v MGN Ltd. [2011] EWHC 1437 (QB), [2011] E.M.L.R. 27, at [114]–[118]). See also CBT v News Group Ltd. [2011] EWHC 1334 (QB), at [3].

90 See CBT v News Group Ltd. [2011] EWHC 1326 (QB), at [24] and [26]; CBT v News Group Ltd. [2011] EWHC 1334 (QB), at [3]; and Goodwin v MGN Ltd. [2011] EWHC 1437 (QB), [2011] E.M.L.R. 27, at [120]. See also von Hannover v Germany (Application no. 59320/00) (2005) 40 E.H.R.R. 1, at [68].

91 Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 W.L.R. 592, at [72] (emphasis added).

92 Ibid., at [69].

93 Ibid., at [72]. The defendant may change his or her mind or inadvertently reveal the information (ibid.).

94 Ibid., at [66].

95 Ibid., at [77].

96 Ibid., at [68] citing Copland v United Kingdom (Application no. 62617/00) (2007) E.H.R.R. 37. This reasoning also suggests that modern courts would be unlikely to follow Sir Robert Megarry V.C.'s statement in Malone v Commissioner of Police (No. 2) [1979] 1 Ch. 344 at 376–77; [1979] 2 All E.R. 620 (Ch.D.) at 645–46 that those who speak on the telephone accept the risk, which he said is inherent in the system, of being inadvertently or deliberately overheard. See also Malone v United Kingdom (Application no. 8691/79) (1984) 7 E.H.R.R. 14 in which the applicant's Article 8 claim was upheld.

97 Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 W.L.R. 592, at [69].

98 The telephone hacking claims against Newsgroup Newspapers Ltd have been pleaded, and many settled, on the basis that the defendants have breached the claimants’ confidence (and misused their private information) by obtaining and recording their mobile telephone voicemails (see Voicemail Claimant v Newsgroup Newspapers and Glenn Mulcaire, Generic Particulars of Claim, especially at para. [25]).

99 See “Theoretical Conceptions of Physical Privacy” above.

100 Coogan v News Group Newspapers Ltd. [2012] EWCA Civ 48, [2012] 2 W.L.R. 848, at [53]. It is also unclear whether the defendants in Tchenguiz would have been liable if the computer turned out merely to contain publicly available or otherwise anodyne information. Although the court stressed that the defendant was not required specifically to identify confidential information contained in the computer documents, it did so on the basis that it was obvious that at least some of the documents (many of which related to the claimant's family and private life, his personal and family assets and business dealings) must contain such material (Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 W.L.R. 592, at [77]).

101 The authors of Gurry on Breach of Confidence agree and observe that, “if English courts seek to protect against ‘intrusions’ into private life as well as disclosure of private information then the connection to breach of confidence will become increasingly tenuous, and the case for recognising a separate tort of privacy much stronger” (Aplin et al., Gurry on Breach of Confidence, note 45 above, at [7.102]).

102 See, for example, McKennitt v Ash [2006] EWCA Civ 1714, [2008] Q.B. 73, at [11]; and Campbell v MGN Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [17]–[21] (per Lord Nicholls).

103 C v Holland [2012] NZHC 2155, [2012] 3 N.Z.L.R. 672, at [75]. Raymond Wacks asks, in a similar vein: “If ‘privacy’ is protected by Article 8 – and [Campbell v Mirror Group Newspapers Ltd. [2004] UKHL 22, [2004] 2 A.C. 457] bristles with sweeping pronouncements of its significance – why is ‘intrusion’ excluded?” (Wacks, Privacy and Media Freedom, note 10 above, at p. 246).

104 Campbell v Mirror Group Newspapers Ltd. [2004] UKHL 22, [2004] 2 A.C. 457, at [51].

105 See the section headed “Physical Privacy in Strasbourg” above.

106 Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 W.L.R. 592, at [66]. See also “Extending Breach of Confidence” above.

107 Ibid., at [67]. The court was explaining why it should draw on misuse of private information cases in the breach of confidence context but the converse also applies.

108 See Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, at [28]–[33].

109 Indeed, the HRA had already been enacted when Wainwright v Home Office was decided but it did not apply in that case because the strip-search took place in 1997 (see Wainwright v Home Office [2003] UKHL 53; [2004] 2 A.C. 406, at [34]).

110 The European Court of Human Rights held that the guards’ conduct breached the claimants’ right to respect for private life in Article 8 of the Convention (Wainwright v United Kingdom (Application no. 12350/04) (2007) 44 E.H.R.R. 40).

111 The label “physical privacy” is favoured over “intrusion”, first, because unlike “intrusion”, “physical privacy” describes what is being protected rather than a particular kind of privacy interference and secondly, because “intrusion” has already had a number of meanings ascribed to it, most of which are broader than the idea of sensory access being described here (see note 12 above).

112 Liability should not depend on the making of a recording although this would usually be an aggravating feature. This list of factors is loosely based on that set out by the Court of Appeal in the misuse of private information case of Murray v Big Pictures [2008] EWCA Civ 446, [2008] 3 W.L.R. 1360, at [36] although the last factor is novel and inquiries into the purpose for the intrusion and its effect on the claimant have been omitted since, as Kirsty Hughes has persuasively argued, these factors should “be addressed at the second stage when weighing up competing rights and interests” ( Hughes, K., “A Behavioural Understanding of Privacy and its Implications for Privacy Law” (2012) 75 M.L.R. 806Google Scholar, 828).

113 For further discussion of the kinds of factors which might bear on the existence of a reasonable expectation of privacy in public places, see Moreham, N., “Privacy in Public Places” (2006) 65 C.L.J. 606Google Scholar and Hughes, note 112 above. The action might also cover those who are filmed or audio-recorded in public whilst experiencing medical trauma, receiving bad news, or experiencing an intimate or traumatic event such as a loved one's funeral or the aftermath of a car accident or crime, (see Moreham, ibid.).

114 The word “necessary” is intended to imply that the defendant could not have exposed the truth using less intrusive means. For a useful discussion of defences in the American context, see Lidsky, L., “Prying, Spying, and Lying: Intrusive Newsgathering and What the Law Should Do About It” (1998) 73 Tul. L. Rev. 173Google Scholar. The defence would not, it is suggested, justify wide-ranging state surveillance of citizens of the type revealed by former contractor to the United States National Security Authority, Edward Snowden.

115 It is suggested that this defence would most obviously apply if the appearance of the claimant was incidental to the filming of an event of significant national or international importance such as the aftermath of a bombing or serious train crash. Where recording of intimate or traumatic events is concerned, the defence should be less likely to apply if the event was a tragic but common one (such as a car accident), if the subject or someone with him or her was asking for the filming to stop, if the filming was otherwise clearly exacerbating the subject's distress, or if the filming did not relate to the newsworthy event itself but to the grief of victims or family members suffered afterwards.

116 For an example of this approach in the American context, see Schulman v Group W Productions Ltd. 955 P.2d 469 (Cal. 1998).