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PRIVACY IN THE UK, PRIVACY IN THE US – CAN WE LEARN ANYTHING FROM EACH OTHER?. INTRODUCTION. This paper will consider the development of the “right to privacy” in the UK and US with the aim of : eliciting the definition and protection of privacy; its challenges; and,
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PRIVACY IN THE UK, PRIVACY IN THE US – CAN WE LEARN ANYTHING FROM EACH OTHER?
INTRODUCTION This paper will consider the development of the “right to privacy” in the UK and US with the aim of: • eliciting the definition and protection of privacy; • its challenges; and, • determining whether lessons can be learnt for each jurisdiction from one another
Privacy is a special characteristic which once breached or invaded, cannot be regained • Start for UK and US was the same • Prince Albert v Strange (1849) 1 Mac & G 25, 47 (Lord Cottingham) “Privacy is the right invaded” • Divergence began in 1890
WARREN AND BRANDEIS ‘The Right to Privacy’ (1890) 5 HLR 193 established 5 principles: • Discernible distinction between public & private figures & life • Mass media publicity unwarranted without consent – explicit for private figures, implicit for public • Everyone retained a “zone of privacy” • Publicity of private lives was not news • Private facts in the media could inflict serious dignitary & emotional harms to the individual Tort of breach of confidence was being developed alongside Simonsen v Swenson 177 NW 831 (Neb 1920)
PROSSER ‘Privacy’ (1960) 48 California LR 383 identified 4 torts as making up the law of privacy: • Intrusion upon seclusion or solitude, or into private affairs • Public disclosure of embarrassing private facts • Publicity which places the individual in a false light in the public eye • Appropriation for advantage of the individual’s name or likeness
US CHALLENGES • Since Prosser the development of the law of privacy has ossified • Much of the case law has supported any activities of the media, no matter how outrageous • New technology – especially social media, body scanners at airports, listening devices, new surveillance techniques
BREACH OF CONFIDENCE Coco v AN Clark (Engineers) (1968) FSR 415 (HC) 419 (Megarry J): • the information itself must have the necessary quality of confidence about it; • that information must have been imparted in circumstances importing an obligation of confidence; and, • there must be an unauthorised use of that information to the detriment of the party communicating it
MISUSE OF PRIVATE INFORMATION Following the introduction of the HRA98 there is now a cause of action under MOPI with a 2 stage test: • Is there a reasonable expectation of privacy? • Balancing of Articles 8 and 10ECHR
UK CHALLENGES • 2 stage test for MOPI • Relationship between right of privacy and MOPI • Statute to entrench law of privacy? • Relationship between press and individuals – Leveson proposals and the Royal Charter?
LESSONS FROM THE US • Over-conceptualisation • Take individuals seriously • In relations between the media and the individual there is a mismatch of power and influence perpetuated by a hierarchy of statute • Dangers of instrumentality
LESSONS FROM THE UK • Breach of Confidence and MOPI protect different interests – relationships and individual expectations • These 2 causes of action can develop side by side • The MOPI test allows flexibility and the correct balance to be struck between competing interests • Still not protecting “privacy” per se
SOLOVE ‘A Taxonomy of Privacy’ (2006) 154 U Pa LR 477 identifies 4 harmful activities: • Information collection • Information processing • Information dissemination • Invasion It is law of privacy that then polices these activities
THE WAY FORWARD? • Return to the underlying idea of Warren & Brandeis – “inviolate personality” • As privacy involves human social interaction then its very nature is value-laden. Thus there needs to be a moral underpinning • What moral underpinning? Consent, dignity, liberty, human rights?