Soon after the Human Rights Act came into force, one commentator suggested that ‘horizontal effect [will] perhaps have its greatest impact in the field of privacy’, and this prediction appears to have been fully vindicated: it is generally acknowledged that it is in the development of breach of confidence into a species of privacy tort that common law horizontal effect has been at its clearest and strongest. Statements by Law Lords in Campbell v. MGN Ltd that ‘The essence of the tort [of breach of confidence] is better encapsulated now as misuse of private information’, followed by the Court of Appeal in Douglas v. Hello! Ltd acknowledging this transformation in bold terms by referring to the ‘action formerly described as breach of confidence’, have had commentators reaching excitedly for their pens to celebrate the new birth. The author has been one of those who have insisted upon the significance of the developments, arguing that they have seen the discarding of one of the key limbs of breach of confidence and the transformation of the other, resulting in at least a de facto new right to privacy. The use of birth metaphors is not just a sign of academic over-excitement, judges have used them too: Jack J in A v. B referred to ‘the law of confidence’ as ‘like a mother swollen with the child of privacy’ who had now ‘given birth and the umbilical cord cut’, although we should immediately note that the typical common law qualifier that this ‘may be’ was added. Perhaps even more significant than this ‘re-christening’ of breach of confidence is the approach taken in the most recent Court of Appeal case, Murray v. Express Newspapers Plc, in which the court, while purportedly dealing with a common law action, appeared to define its key tests in entirely Convention right terms.

On the other hand, and apparently paradoxically, we have the phenomenon of the judges firmly disclaiming any notion that they are creating a new general right to privacy. Most importantly, of course, in Wainwright v. Home Office, the House of Lords unanimously declined to hold that there was any tort of invasion of privacy, as such, in English law. The Court of Appeal in the same case saw formidable ‘definitional difficulties and conceptual problems in the judicial development of a “blockbuster” privacy tort’, and thought the creation of such a tort, even if desirable, as being clearly a task for Parliament, not the judiciary. Instead, Mummery LJ said that the judges preferred ‘the promising and well trod path…of incremental evolution’. Similarly, Woolf CJ, speaking obiter in A v. B Plc strongly steered the lower courts away from considering the development of a free-standing tort of privacy, while Lindsay J, invited in Douglas v. Hello! Ltd to declare a general right to privacy, firmly declined the opportunity.

The Human Rights Act 1998

The scope of inquiry of this volume is the impact of the Human Rights Act 1998 (‘the HRA’) on the private law of England and Wales. The HRA gave effect in UK domestic law to the rights guaranteed by the European Convention on Human Rights 1950 (‘the Convention’, ‘Convention rights’), to which the United Kingdom has been a party since its inception. Prior to the HRA, the Convention had only a limited role to play in English law through the principles of English law which influenced its drafting; through the duty on the courts to interpret the law in accordance with the Crown's international treaty obligations where possible; and through the possibility of a case before the European Court of Human Rights in Strasbourg (‘the Strasbourg court’), albeit that these have in practice been complied with by the UK Government although on occasions with significant delay. One further indirect influence was through membership of the European Communities and Union since the Court of Justice of the European Union has accepted that general principles of European Community law include protection of fundamental rights derived from the common traditions of the laws of Member States.

Introduction

The issue of whether the Human Rights Act imports Convention rights – or Convention principles – into private law is of great importance to the judicial attitude towards the HRA project. This chapter seeks not simply to analyse the doctrinal treatment of the issue by the courts, but to suggest, tentatively, some considerations underlying the judicial approach to it which might explain the result that, six years after the HRA came into force, there is still considerable ambiguity surrounding this point. I start with the following contention: that to allow what was hitherto an international treaty to penetrate deep into the common law was something about which the judiciary was always likely to feel ambivalent. It is one thing when Parliament simply replaces an area of common law with a statutory code – though it may be noted that even the enactment of a new statutory code in a particular area has not prevented the judiciary from developing the common law in a way that arguably circumvents or subverts it. But for Parliament to enact a statute that had the capacity to colonise whole swathes of the common law with general Convention principles was quite another matter: it threatened the whole traditional common law style of reasoning and the judiciary's autonomy in developing it.

Introduction

The issue of how the common law has been developed in order to protect a right to privacy against the media under the impetus of the Human Rights Act is, I believe, of great interest to the theme of judicial reasoning under that instrument. As indicated in Chapter 6, it was in response to press fears that the Act would lead to development of such a right that what became s.12 of the Act was introduced by the government. Because of the relatively flexible and inchoate state of the breach of confidence action even prior to the coming into force of the HRA, there was considerable scope for judicial creativity in fusing Strasbourg principles with evolutionary common law reasoning in order to fill a long-lamented lacuna in English law: the provision of a remedy for the unauthorised publication of personal information. It was not surprising, to this author at least, that the judiciary chose this route and firmly declined the alternatives of either giving direct horizontal effect to Article 8 or ‘declaring’ the existence of a general tort of invasion of privacy. As far back as 1979, Megarry VC remarked in Malone v. Metropolitan Police Commissioner (No. 2) in respect of the creation of privacy rights:

Introduction

A number of commentators have pointed out that the inception of Bills of Rights tends to have the effect, as in Canada, of requiring courts to grapple with justifications for rights and freedoms, taking a more philosophical approach to legal reasoning as they attempt to resolve conflicts between individual rights and competing societal and individual interests. When countries adopt a document setting out a list of human rights with special constitutional status (‘a Bill of Rights’), the effect on judicial reasoning tends to be dramatic – as it was in Canada when it adopted the Charter of Rights. In 2000, the Human Rights Act came into force – affording the European Convention on Human Rights further effect in domestic law – and, while it does not have the entrenched status of other Bills of Rights, there is agreement that it does have what ‘constitutional’ status UK law allows.

Academics and lawyers agree that the introduction of the Act was one of the most significant developments in the public law field in the last 100 years. The Act did not create a home-grown Bill of Rights for the UK; instead, it gave further legal effect to the European Convention on Human Rights. Thus, its impact on judicial reasoning was less predictable than was the case in the broadly equivalent situation in Canada.