Abstract
In this book, I have sought to advance knowledge in tort law scholarship through a refinement of various theories of privacy and the methods of legal protection. At the outset of the study, I emphasised Arendt’s warnings about the dangers of mere ‘passive observation’ in scholarship. On her account, ‘[n]othing could be less trustworthy for acquiring knowledge and approaching truth’ than this scholarly method. For Arendt, ‘in order to know, one [has] to do’ and we advance knowledge ‘only through more doing’ or ‘testing’ in Popper’s sense.
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Notes
- 1.
Griffin, On Human Rights (2008) p 45.
- 2.
Nagel, ‘Concealment and Exposure’ (1998) at 4.
- 3.
HL Deb 24 November 1997, vol 583, col 784.
- 4.
Ibid.
- 5.
Fenwick & Phillipson, Media Freedom under the Human Rights Act (2006) p 700.
- 6.
Rawls, Political Liberalism (1993) p 57.
- 7.
Alder, ‘Dissents in Courts of Last Resort’ (2000) at 224.
- 8.
Berlin The Crooked Timber of Humanity,(2003) p 13.
- 9.
Kent v Griffiths [2001] QB 36.
- 10.
See Wittgenstein, Philosophical Investigations (1953).
- 11.
Mullender, ‘Negligence Law and the Concept of Community’ (2008) at 88.
- 12.
Beever, ‘Particularism and Prejudice in the Law of Tort’ (2003) at 167. Kay criticises the ECtHR on similar grounds arguing that the ‘court that departs from [its] role [as a court of law] to pursue a deeply felt, but only vaguely defined, idea of justice, puts [its] fragile legitimacy to the test’. See Kay, ‘The European Convention on Human Rights and the Control of Private Law’ (2005) at 479.
- 13.
Dworkin, Justice for Hedgehogs (2011) p 2.
- 14.
I am aware of only one successful action though it was a dual libel and privacy action. See Applause Store Productions v Raphael [2008] All ER (D) 321.
- 15.
Mullender, ‘Privacy, Imbalance and the Legal Imagination’ (2011) at 112.
- 16.
Hussain v Lancaster City Council [2000] QB 1.
- 17.
Mitchell v Glasgow City Council [2009] 1 AC 874.
- 18.
X v Hounslow London Borough Council [2009] EWCA Civ 286.
- 19.
Mullender, ‘Privacy, Imbalance and the Legal Imagination’ (2011) at 112.
- 20.
Ibid p 112.
- 21.
House of Lords and House of Commons Joint Report on Privacy and Injunctions (2012).
- 22.
This narrative has been further reinforced by recent high profile cases involving celebrities and the media coverage of ‘super-injunctions’ (also known as anonymised injunctions). See, for example, Terry v Persons Unknown [2010] EWHC 119 (QB); Rio Ferdinand v MGN Ltd [2011] EWHC 2454 (QB).
- 23.
Mullender attributes the development of a tort of invasion of informational privacy partly to the fact that celebrities are normally in a position to pay for the advice of expert counsel. See Mullender, ‘Privacy, Imbalance and the Legal Imagination’ (2011) at 113.
- 24.
Moreham argues that the ‘preferable’ approach to protecting the ‘physical privacy interest’ is to extend the misuse of privacy information action to cover privacy intrusions generally. She argues that ‘[n]o change in the formulation of the action would be required’ as long as courts recognise that autonomy and dignity are at the base of these interests and that the intrusion has ‘upset a claimant’s reasonable desire for or expectation of privacy.’ Although she mentions a potential Art 10 defence for some intrusion cases, she does not seem to think it problematic that the basic decision procedure for the current tort presupposes that interests in free expression are at stake. See Moreham, ‘Privacy in the Common Law’ (2005) at 655.
- 25.
See for example, Lord Hoffman’s remarks in Campbell. According to him, the new action focuses on ‘the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.’ See Campbell v MGN [2004] 2 AC 457 at 473 (per Lord Hoffmann).
- 26.
Lord Nicholls has come closest to engaging this question. In Campbell he remarks that ‘[i]n the case of individuals this tort, however labelled, affords respect for one aspect of an individual’s privacy. That is the value underlying this cause of action. An individual’s privacy can be invaded in ways not involving publication of information. Strip-searches are an example. The extent to which the common law as developed thus far in this country protects other forms of invasion of privacy is not a matter arising in the present case. It does not arise because, although pleaded more widely, Miss Campbell’s common law claim was throughout presented in court exclusively on the basis of breach of confidence, that is, the wrongful publication by the ‘Mirror’ of private information.’ See Campbell v MGN [2004] 2 AC 457 at 465 (per Lord Nicholls).
- 27.
As Lord Smith of Finsbury has argued, ‘[o]ne of the big issues [in] privacy law…is that this is justice only for the wealthy’. See Mullender, ‘Privacy, Imbalance and the Legal Imagination’ (2011) at 113.
- 28.
Waldron, ‘Dignity and Rank’ (2007) at 221.
- 29.
Vlastos, ‘Justice and Equality’ (1984) p 54.
- 30.
Ibid p 51.
- 31.
Ibid p 50.
- 32.
Ibid p 52.
- 33.
Ibid p 53.
- 34.
Ibid p 54.
- 35.
Rawls, A Theory of Justice (1999) p 505.
- 36.
Waldron, ‘Dignity and Rank’ (2007) at 226.
- 37.
Ibid p 218.
- 38.
Rawls, A Theory of Justice (1999) p 511.
- 39.
Dworkin, Taking Rights Seriously (1997) p 181.
- 40.
Vlastos, ‘Justice and Equality’ (1984) p 65.
- 41.
Ibid.
- 42.
Donoghue v Stevenson [1932] AC 562.
- 43.
Vlastos, ‘Justice and Equality’ (1984) p 67.
- 44.
Rawls, A Theory of Justice (1999) p 103.
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O’Callaghan, P. (2013). Conclusions. In: Refining Privacy in Tort Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-31884-9_5
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