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New Research into Privacy

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A citizen's right to privacy may not depend upon the introduction of a statutory privacy law, according to Gavin Phillipson (CLS). His research, undertaken with Helen Fenwick of the University of Durham, shows that a form of privacy law already exists within the British legal system - under the guise of breach of confidence.

Although breach of confidence traditionally covered relationships such as doctor-patient or an employer-employee, their research has found that the law has undergone re-definition to the point that it can now be used to deal with cases of invasion of privacy. Through the examination of a number of unpublicised cases and comments made in the Spycatcher case, Phillipson and Fenwick have discovered an increasing flexibility in judges' interpretations of a breach of confidence. This has extended to cases where there has been no pre-existing relationship between the two parties and where the case has effectively been one of invasion of privacy.

For example, in one case Justice Drake granted interim injunctions to prevent the Daily Mirror and other papers from publishing photographs of the Princess of Wales exercising in a gymnasium. The photographs were taken by the gym owner without the Princess' knowledge or consent, and the plaintiff's case was based both on breach of contract and on confidence. Injunctions have been granted in other cases involving surreptitious photography. Yet cases like these, where privacy is successfully protected using breach of confidence, seem to go unnoticed by barristers. "Public lawyers are taught to believe that there isn't a law of privacy in Britain," explained Phillipson. "It's almost as if they have been hypnotised into not looking for one."

The researchers have also noticed a progressive change in what counts as "confidential information". Traditionally breach of confidence involved information such as the contents of memos and documents, but now they believe photographs and surreptitiously recorded conversations can be included within its definition. The researchers conclude that all that is required for the operation of a de facto privacy law is for barristers to start arguing that their client's information should be protected through the use of breach of confidence, and for judges to make judgements accordingly. "If it was successfully argued a few times in the Court of Appeal or the House of Lords it would become consolidated," said Phillipson. "All this requires is change of strategy. If this doesn't work nothing else will. The government is not going to introduce legislation on the matter."

Friday November 22nd 1996