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Should There Be an Absolute Right to Privacy in the UK?

Should There Be an Absolute Right to Privacy in the UK?

‘It is well known that in English Law there is no right to privacy’, [1] however, at a time when allegations concerning Rupert Murdoch’s hacking scandal are rife, this debate as to whether there should be could be seen as more important than ever. This is a particularly relevant issue as case law such as Malone v Metropolitan Police Commissioner [2] has indicated that phone tapping is illegal. Although this is the case, Rupert Murdoch was not put off and if there were a greater right to privacy, with higher levels of punishment he may have been deterred.

Currently in English law, the main piece of legislation that one could have to rely on is that of Article 8 of the European Convention on Human Rights, with the Human Rights Act 1998 incorporating the right into English law, which states that one cannot infringe the right of:

Respect for his private and family life, his home and his correspondence.[3]

Some people may become confused by this part of the legislation – the word ‘private’ is included and, therefore, one may take this as privacy being a right; however, if people were to read the whole of Article 8, they would soon establish that this only provides respect and in no way provides protection. Furthermore, the right is a qualified right meaning that the state can interfere with it is they have a legitimate need to do so, for example the protection of a child which would interfere with “family life, his home and correspondence.”

With the current law, the courts can look at the evidence and decide for themselves what is the best course of action.

Therefore, the creation of a right to privacy in English law, and the protection of one’s private life, shall be discussed. There have been previous debates around the area of privacy and case law often involves newspaper publications allegedly invading this privacy. In fact, the majority of cases where privacy has been raised as an issue have involved publications, for example, Venables v News Group Newspapers Ltd [4] and Theakston v Mirror Group Newsletter Ltd [5]. The tort of breach of confidence was raised as the only way to deal with the privacy dispute, however, for this tort to succeed one would generally need to show that there is an existing relationship where personal confidence has been breached. This approach seems to be preferred by the courts, rather than trying to establish an absolute right to privacy.

Given the fact that breach of confidence is preferred, the courts seem to be willing to consider privacy but not an absolute right and this could presumably be because the courts discretion is likely to be affected. If there was an absolute right to privacy then the courts would simply have to issue an injunction or some other form of punishment if the terms of the legislation were breached. With the current law, the courts can look at the evidence and decide for themselves what is the best course of action. Whilst this may seem unfair, as the rights of many would not be protected, the approach could make sense. If an absolute right to privacy were introduced into the UK, there would be more instances where punishment is due, even though an infringement of someone’s rights may not have been intended or even knowingly done, for example, if a picture were taken and published on Facebook that had another person in the background.

This may seem to say that the tort of breach of confidence is the correct approach; however, this is not necessarily true. Whilst an absolute right to privacy should perhaps be limited in order to avoid a floodgates type situation, there are obvious flaws with the tort of breach of confidence and therefore requires some level of work. As stated, the majority of cases in this area concern newspaper publications which would have presumably infringed upon one’s privacy, and therefore it would seem that the tort of breach of confidence is well equipped to deal with disputes of this type, however, it may struggle with other disputes. This can be seen by looking at the case of Peck v United Kingdom [6] which is one of the few to not concern a newspaper publication and in this instance a claim for a breach of confidence was unsuccessful.

If an absolute right to privacy were introduced, there is nothing to say that it will make an action less expensive, meaning that the ordinary person may still not get proper protection.

Given that this claim was unsuccessful, it does indicate that whilst people other than celebrities and the rich are taking action to gain an injunction, it is only the rich that are successful in doing so. This is further highlighted by looking at cases such as Campbell v MGN [7] which again involved a celebrity and was successful, whereas Re S (A Child) [8] which involved the ordinary person involved in care proceedings was unsuccessful and the child’s privacy (concerning the details of the child) could be published, which inadvertently reduces the child’s right to privacy.

Following the ideas stated above, it would appear that existing law that should help to protect privacy needs to undergo some form of change to make it adaptable to other areas, instead of just publications, however, if an absolute right to privacy were available to the general public, newspapers may suffer even more. In relation to issues such as phone hacking, a right to privacy should be provided, however, perhaps in the case of photographs where someone may be caught in the background – as is so often the case with a photo – the same should not apply.

Given the problems that could come with introducing an absolute right to privacy and the fact that there is some form of protection already in the UK, it is suggested that the courts have taken the correct approach by not introducing such a right. An action for privacy is expensive which could explain why the cases mentioned above, which were successful, involved celebrities. If an absolute right to privacy were introduced, there is nothing to say that it will make an action less expensive, meaning that the ordinary person may still not get proper protection. Whilst this is said, more should be done to advance the tort of breach of confidence which is supported by Venables v News Group Newspapers Ltd where is it stated:

…privacy rights can only be developed within existing legal actions, rather than independently. [9]

This statement implies that the courts are willing to develop the idea of privacy and also advance the tort of breach of confidence, however, it should still have some limits and therefore not be established to be absolute or independent. In establishing how it should be advanced the tort should do more in order to protect more than publications, and  should be adapted to mirror the appropriate issues, for example, harsher boundaries imposed upon the press in order to avoid the types of case that initially sparked this debate.


  • [1] Textbook on Civil Liberties and Human Rights, Richard Stone, Oxford University Press, 7th edt, 2008, page 464
    [2] Malone v Metropolitan Police Commissioner (No 2) (1979) 69 Cr App R 168 – View Case
    [3] Human Rights Act 1998, Schedule 1, Article 8 – View Article
    [4] Venables v News Group Newspapers Ltd [2001] Fam. 430 [2001] 2 WLR 542 – View Case
    [5] Theakston v Mirror Group Newspaper – View PDF
    [6] Peck v United Kingdom (2003) 36 EHRR 41 – View PDF
    [7] Campbell v MGN [2004] 2 A.C. 457 – View Case
    [8] Re S (A Child) – View Case
    [9] Venables v News Group Newspapers Ltd [2001] Fam. 430 [2001] 2 WLR 542 – View Case
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