Contemporary privacy protection

Not until the closing days of the twentieth century did the English courts eventually recognise a common law right of privacy. Prior to this the judiciary had expressly denied such a right, suggesting that it was for Parliament alone to provide for privacy protection. In ironic and stark contrast, the common law of privacy in the United States enjoyed a rich and productive twentieth century, its creation in turn having been instigated at the end of the previous century by the seminal work of Warren and Brandeis in which the authors relied on English common law actions in copyright, defamation and breach of confidence to argue for the existence of a US right to privacy. We have considered these latter developments in chapter 2. The more recent English volte face represents the culmination of a number of events that demonstrate how conceptually confused thinking continues to beleaguer this field of scholarship, making for ill-conceived and patchy privacy protection. These factors are (i) a failure to distinguish between the concepts of confidentiality and privacy, to the detriment of the legal protection of each; (ii) a lack of theoretical and definitional clarity as to the meaning of privacy more generally; and (iii) the advent of statutory developments that embody equally unclear conceptions of privacy, yet which at the same time have ushered in a new era of sensitivity to individual rights, making it politically more expedient to create a new common law right.