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A re-examination of privacy

  • Samuel Stoljar (a1)


In English law, as in many of its common law satellites, the tort of privacy is still a curiously problematic one. Unlike Roman or generally civilian law where there is little doubt that an invasion of privacy is actionable, unlike also American law which in the last 80 years or so has fashioned an ample shield around a person's private sphere, English law has been deeply hesitant about admitting privacy as a civil right. Roman law, we may be surprised to learn, accepted from the very start that rules against personal injury include as well as rights to physical security also rights to feelings of human dignity and self-respect.



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1. W. L. Prosser Law of Torts (4th edn, 1971) ch 20 gives an excellent account of US developments.

2. Dig.47.10.1, 13, 15, 26; Inst. 4.4.

3. Report of the Committee on Privacy (1973), Cmnd 5012, paras 87, 659. See also Law Commission Working Paper, No 58, 1974, (‘Breach of Confidence’).

4. See R. Wacks The Poverty of ‘Privacy’ (1980) 96 Law QR 73; the same, The Protection of Privacy (London, 1980) pp 10ff

5. See eg S. I. Benn ‘The Protection and Limitation of Privacy’ (1978) 52 Austr LJ 601, 686, and see further literature there cited.

6. Warren and Brandeis ‘The Right to Privacy’ (1890) 4 Harv L Rev 193,213; Prosser op cit 816. The attack on Prosser came from E. J. Bloustein ‘Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser’ (1964) 39 NY Univ LR 962, which latter is indeed much inspired by the Warren-Brandeis article.

7. [1897] 2 QB 57.

8. See Rose v Ford [1937] AC 826; Benham v Gambling [1941] AC 157.

9. For this alleged cleavage see E. J. Bloustein op cit 973–4.

10. Bloustein op cit 974.

11. §§652A - 6521.

12. Prosser op cit 804, 814.

13. Prosser op cit 802–3, 814–816.

14. Restatement of Torts, §§18–19.

15. See Restatement, §21.

16. Bennett v Norban (1959) 396 Pa.94, 151 A.2d 476.

17. Harrison v Duke of Rutlund [1893] 1 QB 142; Hickman v Maisey [1900] IQB 752.

18. [1900] 1 QB 752 at 756, 758. An offensive intention may also be important in comparable situations in criminal law. In Fagan v Metropolitan Police Comr [1969] 1 QB 439, the accused, having been told by a policeman to park his car nearer to the kerb, thereupon drove it on to the latter's foot; not until the policeman had told him ‘to get off his foot did the accused slowly move the car. The court had no doubt that the accused had been provocatively slow in removing the vehicle; the only question was whether this converted what possibly began as an accidental act into a criminal assault. It was held that it did. In criminal law a mere omission does not generally constitute an assault; but failing to remove one's car from another's foot can change the accused's behaviour from an omissive to a commissive act.

19. See Lyons v Wilkins [1899] 1 Ch 255, a case admittedly no longer applicable in industrial or labour law; but it still is a good example of common law nuisance.

20. Crump v. Lumbert (1867) LR 3 Eq 409 at 413. And see also Walter v Selfe (1851) 4 De G & Sm 315, 323; Broder v Saillard (1876) LR 2 ChD 692 at 701.

21. Cherrington v Abney (1709) 2 Vern 646; Tapling v Jones (1865) 11 HLC 290 at 305.

22. Tapling v Jones at 307.

23. Victoria Park Racing & Recreation Grounds Coy Ltd v Taylor (1937) 58 CLR 479 at 517, where a majority of the High Court of Australia held there was no action in nuisance where the defendant had broadcast races from adjoining land, Evatt J. dissenting, although his statement in the text was not challenged. The majority perhaps took too literal a view of Tapling v Jones, supra, nor did they consider Hickman v Maisey, supra, quite apart from the wider point that the plaintifs had created something, in the form of a spectacle, which they alone should have been entitled to turn to value. Narrowly construed, the decision can be said to have nothing whatever to do with privacy; it only concerns interference with a public entertainment as quasi-property.

24. For such a use of mirrors, see the unreported case in P. H. Winfield ‘Privacy’ (1931) 47 LQR 23 at 27.

25. Wiretapping outside the home we consider further below: see text at notes 36–37.

26. See n 17, supra.

27. [1897] 2 QB 57.

28. (1765) 19 St Tr 1029.

29. ‘Papers are the owner's goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away, the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damage in that respect’: ibid at 1066.

30. Eavesdropping, committed by listening to others under walls or windows or the eaves of a house, was a criminal nuisance, punishable by fine and finding sureties, the culprit being treated like a common scold liable to immersion in a ducking stool: Black-stone's Commentaries, iv, 168, The offence was abolished by the Criminal Law Act 1967, s 13.

31. In the Hickman v Maisey, supra, the jury awarded the plaintiff only one shilling in damages, although he obtained an injunction.

32. [1977] 2 All ER 902.

33. Ibid at 909, per Griffiths J.

34. Malone v Commissioner of Police [1979] 2 All ER 620.

35. Ibid at 646, per Megarry V-C.

36. This crucial ground of the decision is however overshadowed by various other observations curiously at odds with it. Thus the learned judge observes that the Post Office are under a (statutory) duty not to tap private telephone conversations only if this entails a trespass to land or a clear breach of confidentiality, tapping itself is not unlawful since not expressly forbidden; if it were to be this would be a matter for Parliament. But this surely raises the question why Post Office officials should be treated differently from policemen, or why the former can only be liable with the help of an Act of Parliament while the latter come under common law liability. Again, the judgment suggests (a suggestion which originated with the Younger Report: Cmnd 5012, para 545) that in using the telephone one discards a large measure of security for private speech, since it offers so many possibilities of being overheard. But this is still quite different from interfering with another's telephone precisely for the purpose of overhearing what are admitted to be private things. To have one's telephone tapped is not the sort of natural fact of life one has to expect, or to adjust oneself to, in the normal or ordinary course of things.

37. Katz v US (1967) 389 US 347 at 366.

38. Prosser, as already mentioned, specifies a third type of unwanted publicity, ie putting another in a false light. This matter confuses privacy with defamation: we deal with it below.

39. Pavesich v New England Life Ins Co (1905) 122 Ga 190, 50 SE 68.

40. Cason v Baskin (1944) 155 Fla 198, 20 So 2d 243, and see other cases in Prosser op cit 809 ff.

41. In Bloustein's apt phrase: op cit 979.

42. Warren and Brandeis op cit 200–1, 204–5, 218.

43. (1849) 1 Mac & G 25, 1 H & T I, 2 De G & Sm 652.

44. 1 Mac & G, at 46–47.

45. Op cit 200–201, 205. For these opposing doctrines see at notes 66ff below.

46. Pollard v Photographic Co (1888) 40 Ch D 345.

47. Ibid at 352. The phrase ‘breach of faith’ in such situations first occurred in Tuck v Priester (1887) 19 QBD 629 at 639.

48. [1967] 7 Ch 302.

49. Op cit 210–211

50. Pavesich v New England Life Ins Co (1905) 122 Ga 190, 220, 50 SE 68, 80.

51. Melvin v Reid (1931) 112 Cal App 285, 297, p 91.

54. Prosser op cit 804, 809; and see also Restatement of Torts, §§652C, 652D. A recent English contribution takes a similar approach; see T. Frazer ‘Appropriation of Personality, A New Tort? (1983) 99 LQR 281.

53. This example is based on Jones v Herald Post Co (1929) 230 Ky 227, 18 SW 2d 972, where however it was held that there was no invasion of privacy, there being no intention to be critical, the account being entirely complimentary. Now it may well be that full reports of murders and the contemporaneous statements of witnesses should be protected as a matter of free speech or the freedom of the press. But this apart, the report could still be seen as an invasion of privacy for reasons stated in the text.

54. In William v Settle [1960] 1 WLR the defendant, a professional photographer, had been commissioned to take photographs at the plaintiffs wedding; the copyright in these photographs vested in the plaintiff. Two years later when plaintiffs wife expected a child her father was murdered in circumstances which attracted some publicity. The defendant thereupon sold the pictures to some newspapers. The court had no doubt this was a ‘shocking’ case and that the defendant was a party to vulgar and offensive conduct, for which exemplary or vindictive damages under the Copyright Act were entirely appropriate.

55. Coco v A. N. Clark [1969] RPC 41 at 48; for the vegetarian example, see Lusky, L. Invasion of Privacy: A Clarification of Concepts’ (1972) 72 Col LR 693.

56. Sidis v F-R Pub Corp (1940) 113 F 2d 806.

57. An unreported case cited by Winfield op cit 32–3.

58. Woodward v Hutchins [1977] 2 All ER 751 at 754.

59. Warren and Brandeis op cit 215.

60. Gill v Curtis Publishing Co (1952) 38 Cal 2d 273, 239 P 2d 630; Gill v Hurst Publishing Co (1953) 40 Cal 2d, 224, 253 P 2d 441.

61. For a fuller treatment, see P. Finn Fiduciary Obligations (Sydney, 1977) pp 130ff.

62. Warren and Brandeis op cit 197.

63. See n 51, supra.

64. See, eg, Leyman v Latimer (1877) 3 Ex D 15 at 352, where it was said to be defamatory to call a person ‘a convicted felon’; his conviction had come years before, he had suffered his sentence and received a pardon. Similarly private defamation might have adopted the rule in criminal libel which was concerned as much with the intent of an allegation as with its possible truth: see R v Adams (1888) 22 QBD 66.

65. By subjecting it to ‘public benefit’: see J. G. Fleming The Law of Torts (6th edn, Sydney, 1983) pp 526–7, 574.

66. (1848) 11 Beav 112.

67. Ibid at 118. On another interpretation the decision can be construed as mainly procedural, there being then a view that chancery had no jurisdiction to stay the publication of a libel which however is no longer the case since the Judicature Acts 1873: see Bonnard v Perryman [1891] 2 Ch 269.

68. Dockrell v Dougall (1899) 80 LT 556.

69. Corelli v Wall (1906) 22 TLR 532.

70. Tollely v Fry [1930] 1 KB 467 at 478.

71. Mulligan v Cole (1875) LR 10 QB 549; Capital & Countries Bank Ltd v Henty (1882) 7 App Cas 741.

74. Ibid at 793.

73. The turning-point here seems Tolley v Fry [1931] AC 333.

74. See BMA v Marsh (1931) 48 RPC 565; Drummond-Jackson v BMA [1970] 1 WLR 688.

75. Prosser op cit 812; Restatement of Torts, §652E.

76. Itzkovitch v Whitaker (1950) 115 LA 479, 39 So 499.

77. Martin v Johnson Publishing Co (1956) 157 NYS 2d 409.

78. See also Wacks The Protection of Privacy p 171.

79. Lord Byron v Johnston (1816) 2 Mer 29.

80. Dunlop Rubber Co Ltd v Dunlop [1921] AC 367.

81. Hines v Winnick [1947] I Ch 708.

84. Henderson v Radio Corp Pty Ltd [1960] SRNSW 576, where two NSW courts saw the company as committing the tort of passing-off: the lower court because there was here, albeit a little remotely, a ‘common field of activity’ between plaintiffs and defendants; the higher court because the essential requisities of the tort are anyhow satisfied once there is some misrepresentation by the defendants and probable damage to the plaintiffs. There can be such relevant deception where parties compete for the same name. In Ramsay v Nicol [1939] VLR 330, the plaintiff applied for an injunction to stop defendant using the name ‘Nicola’ in his professional life. The plaintiff had worked as a palmist under that name, which he registered under the Business Names Act. His application was unsuccessful as it appeared that the defendant had been working much longer, and more consistently, under the name Nicola than the plaintiff who had long since ceased to carry on his original trade.

83. Sim v H.J. Heinz Co Ltd and Another [1959] All ER 547.

* I am greatly indebted to Dr Paul Finn, Reader in Law, Australian National University, for countless discussions on privacy and related topics. We perhaps began by disagreeing on most issues; we may now disagree on less.

A re-examination of privacy

  • Samuel Stoljar (a1)


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