Abstract
In the United States, New Zealand and the Canadian province of Ontario, recognition has been afforded to privacy torts remedying intrusions upon seclusion or solitude, and the creation of such a tort has also been recommended by the Australian Law Reform Commission. In England and Wales, recognition has so far only been afforded to a privacy tort remedying misuse of private information. This article considers the current prospects for the recognition of an intrusion upon seclusion tort within English law. It will be suggested that there is less necessity for such recognition following the apparent recent confirmation by the decisions in Gulati v MGN and Vidal-Hall v Google that misuse of private information claims may still be brought where there is no ensuing publication of wrongly acquired private information. Given that intrusions commonly result in the acquisition of private information, it will be suggested that many of the privacy interests protected by the intrusion torts in other jurisdictions may now therefore be protected in English law through a claim for misuse of private information.
Highlights
The concept of privacy is an elusive one, and attempts to explain or define it have generated fierce academic debates and a sprawling literature across the common law world.1 Numerous committees have grappled with these difficulties.2 Despite the challenges presented in this area, in recent years there have been significant developments across common law jurisdictions concerning the extent to which the law of tort is able to afford a remedy to individual citizens following an invasion of their deemed ‘privacy’ interests
It has been conceded that there may be circumstances where individuals may legitimately feel that their privacy has been violated, but where it may be artificial to shoehorn their complaint within the informational paradigm
It has been suggested that the English courts are more likely to respond to these situations by incrementally evolving the tort of misuse of private information (MOPI), rather than by importing an intrusion upon seclusion tort into English law
Summary
The concept of privacy is an elusive one, and attempts to explain or define it have generated fierce academic debates and a sprawling literature across the common law world. Numerous committees have grappled with these difficulties. Despite the challenges presented in this area, in recent years there have been significant developments across common law jurisdictions concerning the extent to which the law of tort is able to afford a remedy to individual citizens following an invasion of their deemed ‘privacy’ interests. Despite the challenges presented in this area, in recent years there have been significant developments across common law jurisdictions concerning the extent to which the law of tort is able to afford a remedy to individual citizens following an invasion of their deemed ‘privacy’ interests. In both England and Wales and New Zealand torts exist that are capable of redressing violations of citizens’ ‘informational privacy’ interests. Despite the vagueness of the concept of privacy, two particular ways in which civil remedies have been constructed for redressing violations of privacy have centred upon the distinction between violations of informational privacy, and intrusions upon some sort of private realm, or state of seclusion, that a citizen enjoyed at the material time. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, “to be let alone.”
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