The Law Of Privacy

The oxford dictionary defines privacy as "a state in which one is not observed or disturbed by others". From a very early age in life people claim a right to privacy. As young children we lock ourselves away from our parents in order to get privacy for what every reason we feel necessary. Siblings argue over so-called invasion of privacy if one enters the other's room. When involved in private conversations you understand this to limit the shared information to those originally included. A. F Westin noted "...the relation of the individual to social participation, privacy is the voluntary & temporary withdrawal of a person from the general society through physical or psychological means either in a state of solitude or small group...in a condition of anonymity or reserve". The way that privacy is used shows that there is an inbuilt acquisition of the word and a natural claim to its use. The term privacy can be used in many areas for example; it is commonly linked with the data protection Act 1998, the protection of personal information stored electronically as well as on paper. Privacy is socially accepted as a primary right, before any laws where made it was generally recognized that everyone, might separate themselves from others for example with the division of land to have private ownership. "In the 1890's future United States Supreme Court Justice Lois Brandeis viewed that it was an "individual's "right to be left alone." Brandeis argued that privacy was the most cherished of freedoms in a democracy and he was concerned that it should be reflected in the Constitution". Mr Brandeis saw Privacy to be of such superior importance he wanted it to be set in a law that governs other laws made. Edward Bloustein a member of New York university law school in the 1960's described privacy as "an interest of the human personality. It protects the inviolate personality, the individual's independence, dignity and integrity". If his definition is correct then the laws relating to privacy should be in a written constitution, for without protection of privacy the uniqueness of each person would diminish and people would loose self-value and become no more than a name or a statistic.

It is clear that individuals have a view on the amount of privacy they are entitled to and what getting that privacy means to them. The law of privacy is developing; as there is an increasing demand for privacy especially with regards to public persons and high profile events, such as those involving legal matters. The Calcutt Report 1990 laid down some views on the matter of privacy; it also made a definition of privacy in its first report "The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information. This is very similar to Article 8 of the Human Rights Act 1998 (HRA). This Article entitled "The Right to Respect for Privacy and Family Life". The Article is pretty clear in its aim, however the exceptions in (s)2 has caused problems in deciding where the right to privacy ends and the right to freedom of expression under Article 10 of the HRA begins. Later I will look at the HRA in more detail an discuss the need to find a balance in applying these two Articles in order to have an out come that doesn't dismiss either Article though Article 10 is not part of our domestic law.

Before the human rights act 1998 there was no recognised right to privacy in the English law. Instead there were several laws that dealt with certain areas of invasions of privacy for example the Harassment Act 1997 that dealt with infringement of privacy for the most part with regards to 'Stalkers'. By using one of these laws the plaintiff is seeking an injunction to prevent publication of the private matter. The Younger Committee Report found that one of the main reasons for the increase need for a specific law on privacy was the development of technology that allowed people to invade other people's privacy a lot easier than before. For example camera technology has developed so that you can be miles away from your target and get a clear picture of them. This form of invasion is used frequently by the paparazzi that may do so, as long as they have a clear shot from land they are allowed on. Computers also now store a lot of personal information, which can be dangerous if accessed by unauthorised persons. The Internet caused a lot of concern as credit details are passed onto unknown recipients. The media has developed more interest in the details of people's lives and has pushed the boundaries of their power with investigative media, printing somewhat personal information under the label of 'public interest'. The Calcutt Committee noted that the threat from computers decreased while the press continue to escape restriction. The data protection act 1998 and several security systems have been put in place to deal with securing personal information, for instance the chip and pin system, put in place to prevent fraud by false signatures.

The tort of trespass, used when protecting information gained from Intrusion onto private property is limited. Information must be acquired while illegally being on the premises, therefore images gained from a distance of activities on the land will not be covered, this is not very beneficial with modern technology making areas of distance easy access. Trespass was never very useful in regards to protection of privacy, as it does not prevent the publication of any images obtained. For instance in the case of Bernstein v Skyviews [1978] 1 QB 479, photographs taken from a plane flying over ones property is not trespass. So long as it isn't constant it doesn't count as a nuisance taking pictures is not an offence and there is no ownership of airspace. The tort of Nuisance may also be applied where someone's invasion of privacy is caused by the constant interference and consequently a reduction of their enjoyment of land. In the case of Bernstein v Skyviews there could only be a claim of nuisance if the plane was persistent in flying over the property and monitoring the land and taking several pictures. Like trespass nuisance doesn't protect from the publication of any information taken.

If information published was untrue, a person my argue defamation under the defamation Act 1952 this also includes things said that may damage the plaintiff. In the case of Kaye v Robertson [1991] the issue argued was defamation however this was clearly a case of breach of privacy. Due to insufficient laws on privacy an alternative remedy had to be used. Mr Kaye's privacy was invaded when a journalist and his photographer ignored a noticed and entered his hospital room