THE BLOG
15/09/2015 07:15 BST | Updated 11/09/2016 06:12 BST

Hide and Seek: The Right to Privacy

Following on from my previous post on the right to be forgotten, a related and ever expanding area of law is that of the right to privacy. It's a controversial area that pits citizens against governments, large multinational corporations and each other. With the advent of big data and the ever-increasing use of social media platforms, the right to privacy is set to become increasingly important in a society that places a great deal of value on private information. Some countries are more advanced than others in their legislative and judicial efforts to address this important area of law and I've canvassed some of their efforts and developments below.

Australia

As it currently stands, an Australian has limited means by which to enforce a right to privacy under Australian law. For example, if someone takes photos of you and posts them onto their Instagram account without your permission, you may struggle to find a cause of action. The case of Lenah Game Meats in 2001 did however outline that 'the time is ripe for consideration whether a tort of invasion of privacy should be recognised in this country'. Previously, it was assumed Australian common law did not recognise a right to privacy and that no such cause of action existed following other cases.

Since then there have been some developments that you could try to rely upon. As per the recent decision in Grosse v Purvis in the District Court of Queensland, Skoein SJDC was seen to take the 'logical and desirable step' of recognising a right of privacy - albeit relying on US case law. Another recent decision in the Victorian County Court, Doe v ABC, upheld Grosse and declared that a serious breach of privacy can be an actionable wrong that can give a claimant a right to seek damages. In that case, Campbell J declined to outline a definition for the possible action saying it was too imprecise a concept and that he was only taking the next incremental step. Adding to this complexity are other cases where an action for a breach of privacy has been declined or judges have shown great reluctance to extrapolate upon such an action. In Giller v Procopets, Gillard J declined to recognise the action outlined in Doe and Grosse and, referring to Lenah Game Meats and the UK case of Gordon v Kaye, dismissed the claim for breach of privacy because he thought the law had not yet developed to a point where it could 'recognise an action for breach of privacy'.

So...no dice? Well, yes it's true that an Australian has limited ability at both the Federal or State level to bring a successful claim for an invasion of privacy but note that some judicial opinion does appear to favour such an action - at least in part. A better way to enforce a privacy action would arguably be to rely on the equitable obligation of confidentiality. Although narrow in its scope, there are cases where information that has been imparted in circumstances where an obligation of confidence can be said to reasonably arise. These have given rise to a breach of confidence claim such as when private letters or certain confidential business reports or communications are stolen and published without permission. Where information has been obtained in an 'improper or surreptitious' fashion, an obligation of confidentiality may arise and breaches can lead to damages.

The United Kingdom

A British citizen has much broader options regarding an action for invasion of privacy. Within the UK the law recognises 'privacy itself as a legal principle drawn from the fundamental value of personal autonomy' (per the famous Douglas v Hello! case) This situation is owed in part to British case law and its obligations under the European Convention on Human Rights (ECHR) as well as its own Human Rights Act which provides for a similar right to privacy.

There are two tests a person must pass to enforce a privacy action in the UK and they are derived from the operation of the ECHR Article 8 (right to privacy) and Article 10 (freedom of expression). The first test is that a person must have a 'reasonable expectation of privacy' in the particular circumstances. The question of whether or not the information is of a private nature is generally said to be obvious. The broad test one must apply is whether the disclosure of the information would give 'substantial offence', assuming a reasonable person was placed in similar circumstances and was a person of ordinary sensibilities.

Having passed the first test, you must then show that a claim doesn't impact upon Article 10 by reference to how a balance should be struck between an individual's privacy on one hand and an individual's right to publish information on the other. Neither article is said to have preference over the other and where they are in conflict, an 'intense focus on the comparative importance' of the specific right (privacy) being claimed is necessary per the Weller case. Section 12(4) of the UK's Human Rights Act also directs courts to consider the importance of freedom of expression protected by Article 10 and the extent to which material is or is about to become public and the public interest in publishing it.

However, even where you do manage to prove to a court that your right to privacy outweighs the freedom of expression right in the ECHR in any given circumstance, you are unlikely to get much in the way of damages. To date little has been awarded except in highly unusual cases such as Naomi Campbell's action for privacy against MGM and Max Mosley's against the News of the World.

The United States

Like the United Kingdom, the USA offers potentially much stronger causes of action for privacy claims. Whilst there isn't a discrete tort of privacy per se, there are related causes of action plaintiffs can pursue. In fact, there are three. One is a suit for intrusion of privacy, two the publication of private information and three the publication of material that places a person in a false light. The First Amendment right significantly undermines the value of these torts though when it comes to anything that might be loosely considered 'newsworthy'.

Intrusion

The tort of intrusion can be used in instances where a plaintiff can demonstrate that they had a 'reasonable expectation of privacy' in the circumstances. California in particular has shown itself to be particularly proactive in facilitating such claims with state statute outlining a tortious liability for physical and even 'constructive' invasions of privacy through photography of a person engaged in 'personal or familial activity' (Civil Code §1708.8(a). This facilitative state of the law is owed in part to the high concentration of famous and infamous residents in California.

False Light

This tort has garnered several disputes within the United States and has been rejected in Minnesota in 1998, Colorado in 2002 and Florida's Supreme Courts in 2008. These courts concurred in that such a cause of action was 'coextensive with libel' and didn't see the need to adopt it. A claimant must prove that specific allegations (presumably obtained through a breach of their privacy or personal information) are false and that such a suggestion causes humiliation or embarrassment and prove that such a statement is offensive to a reasonable person.

Private Information

The third option is the tort of publishing private information. For this invasion of privacy suit to succeed, a plaintiff must demonstrate that any material published was indeed private. This could be used for example when your private material is published without your consent. Case law suggests that if a large segment of the public is aware of the information a suit will not succeed. So if it's already online your chances are slim. However, as per the Kubach case in Georgia, the fact that an individual's private information is known by a close few does not defeat their right to their information being withheld from the public. Once it is determined that such facts have been disclosed publicly, it is up to a court to determine if the private facts about a person's life will be deemed offensive to a reasonable person or if the material was of genuine public interest.

So which one would you choose? At the moment the United Kingdom is leading the way in this area of law with the USA a close second, at least in California and to a lesser extent New York. Australia has some catching up to do but is developing nonetheless.