Introduction to Privacy for Law Students (Part I)

Many doctrines under English law form due to common law, also known as judge‑made or case law, where a series of legal cases create and form doctrines or principles which underpin legal rights.

Privacy emerged as a notion in common law in the 18th century, developing through cases until it was legislated in the 20th century under the European Convention on Human Rights, which was integrated into English law by the Human Rights Act 1998.

In Part I of this privacy introduction, we explore the early common‑law cases which introduced the concept of privacy to English law.

The emergence of privacy as a notion

The concept of privacy was first referred to in the context of a person’s right not to have their activities in the home imposed upon by the state or others:

“The house of every one is his castle and fortress…” — Peter Semayne v Richard Gresham 77 ER 194

This approach was affirmed in Entick v Carrington [1765] EWHC KB J98, where state officials broke into Carrington’s home and searched his private correspondence under a warrant for libellous material. The Court found this a gross infringement of his rights:

“Has a Secretary of State a right to see all a man’s private letters…? This would be monstrous indeed…”

The conceptualisation of privacy in early common‑law judgments

In the 19th century, privacy as a value underpinning English decisions was developed further. In Prince Albert v Strange (1849) 41 ER 1171, the Prince sought an injunction to prevent publication of a private catalogue of etchings.

The Court recognised privacy as tied to autonomy and control over one’s ideas:

“Privacy is a part, and an essential part, of this species of property.”

Yet the Court’s reasoning was inconsistent, at times treating privacy as a standalone right:

“In the present case, where the privacy is the right invaded…”

This raised a crucial question: could privacy alone justify legal action, absent another recognised cause of action?

The formation of actions providing ancillary protection to privacy

Because privacy lacked a clear legal status, courts relied on other causes of action to protect it incidentally. A key example is Coco v A.N. Clark (Engineers) Ltd [1968] FSR 415, which refined the breach of confidence action.

Breach of confidence protects privacy only where a pre‑existing confidential relationship exists, leaving a gap where privacy exists without such a relationship.

Kaye v Robertson [1990] EWCA Civ 21 illustrated this gap starkly. A journalist entered a hospital room and photographed actor Gordon Kaye without proper consent. The Court lamented the absence of a privacy right:

“It is well‑known that in English law there is no right to privacy… The facts of the present case are a graphic illustration of the desirability of Parliament considering… statutory provision…”

Kaye’s lawyers had to rely on other causes of action: libel, malicious falsehood, trespass, passing off, none designed to protect privacy directly.

Balancing an individual’s privacy against other interests

R v Director of Serious Fraud Office, ex parte Smith [1993] AC 1 provides an early example of balancing privacy (seen as part of liberty) against competing public interests:

“All civilised states recognise this assertion of personal liberty and privacy… few would dispute that some curtailment… is indispensable…”

This balancing exercise, weighing privacy against public interest, security, or press freedom, would later become central to modern privacy law.

Conclusion

Historic authorities show that defining privacy under English law was far from simple. Privacy appeared:

• as a standalone right,
• as an incidental right protected through other causes of action, and
• as a value underpinning judicial reasoning.

This inconsistency highlighted the need for clarity, ultimately provided through the Human Rights Act 1998 and the development of the tort of misuse of private information in Campbell.

This article is the first in a three‑part series on privacy law. Parts II and III will be published in the coming weeks.