- See, for instance, Hosking v Runting [2005] nZLR 1; C v Holland [2012] 3 nZLR 672; Jones v Tsige (2012) 108 oR (3d) 241. note also Aubry v Éditions Vice-Versa [1998] 1 ScR 591 decided under the Quebec charter.
- Privacy act, RSS 1978, c P-24 (Saskatchewan); Privacy act 1987, ccSm, c P-125 (manitoba); Privacy act, RSnL 1990, c P-22 (newfoundland); Privacy act, RSBc 1996, c 373 (British columbia). See generally M warby, N moreham and I christie (eds), Tugendhat and Christie: The Law of Privacy and the Media (oxford University Press, 2nd edn 2011) 143–6 (section on canada contributed by B von Tigerstrom).
- for canada, see the Privacy act, RSc, 1985, c P-2 (government agencies); and Personal information Protection and electronic Documents act, Sc 2000, c 5 (private sector organisations). The latter covers provinces that do not have substantially similar legislation. See also Personal information Protection act, SBc 2003, c 63 (British columbia); Personal information Protection act, Sa 2003, c P-6.5 (alberta); act Respecting the Protection of Personal information in the Private Sector, RSQ, c P-39.1 (Quebec); and note also the Personal information Protection and identity Theft Prevention act 2013, ccSm c P33.7 (manitoba). for new Zealand see the Privacy act 1993 (nZ).
- Privacy Act 1988 (cth), as amended.
- australian Law Reform commission, For Your Information: Australian Privacy Law and Practice (aLRc Report 108, 2008); new South wales Law Reform commission, Invasion of Privacy (nSwLRc Report 120, 2009); victorian Law Reform commission, Surveillance in Public Places (vLRc Report 18, 2010).
- Hong Kong Law Reform commission, Civil Liability for Invasion of Privacy (2004).
- House of commons, House of Lords, Joint committee on Privacy and injunctions, Privacy and Injunctions (2012); Law commission of new Zealand, Invasions of Privacy (Report 113, 2010).
- for the Terms of Reference (Serious invasions of Privacy in the Digital era) and timetable for the review, see the aLRc website at www.alrc.gov.au/inquiries/invasions-privacy/terms-reference. The australian Law Reform commission's issues Paper (iP 43) was released in october 2013. i am a member of the advisory committee for the current australian Law Reform commission reference.
- (2001) 208 cLR 199.
- See wacks, Privacy and Media Freedom (hereinafter PMF) 18–19, citing JS mill, On Liberty (Longman, London and green, 1859) 9. although mill is identifed in rather negative ‘libertarian’ terms here as resisting interference, wacks gives a fuller picture of liberal-utilitarian thinking when he adds (at 21) that 'privacy stakes out a space for creativity, psychological well being, our ability to love, forge social relationships, promote trust, intimacy and friendship', citing a westin, Privacy and Freedom (atheneum, 1967) 33–34. cf mill, On Liberty, ch 3 ('on individuality, as one of the elements of well-Being').
- Ibid, 38, here relying heavily on T emerson, 'The Rights of Privacy and freedom of the Press' (1979) Harvard Civil Rights-Civil Liberties Law Review 329 but referencing also e Barendt's classic survey of the justifcations for free speech in Freedom of Speech (clarendon Press, 2nd edn 2006) ch 1. i would say that Barendt is more sympathetic to limitations being placed on free speech than emerson, who concludes that (as to privacy) '[t]he basis for recovery against the press can and should be held to narrow grounds': Ibid at 360.
- Sweet & maxwell, 1980.
- clarendon Press, 1989.
- Blackstone Press, 1995.
- clauses 2 and 3 respectively—and cf HKLRc (n 6), ch 6 (intrusion on seclusion) and ch 7 (publicity given to private life). note that wacks uses the nomenclature ‘personal information’ rather than ‘private information’ but ‘personal information’ is defned in clause 1 as 'facts, communications, or opinions which relate to an individual and which it would be reasonable to expect him or her to regard as intimate or sensitive and therefore to want to withhold, or at least to restrict, their collection, use or publication'.
- Ibid, 12.
- See Hosking v Runting (n 1)—modelled on the US public disclosure of private facts tort, and C v Holland (n 1) and Jones v Tsige (n 1)—modelled on the US intrusion on seclusion tort. The canadian statutory torts (n 2) distinguish instances of intrusion and uses of private information (as examples of a general tort of 'wilfully and without claim of right, [violating] the privacy of another person'). The vLRc (n 5) adopts a bipartite classifcation, while the aLRc and nSwLRc (n 5) combine factors going to intrusion and publication into one cause of action.
- ‘Privacy’ (1960) 48 California Law Review 383.
- american Law institute, 1977, reporter william Prosser, §§ 652a–652i.
- [1990] 1 ac 109, 281–2 per Lord goff. for the breach of confdence doctrine as a doctrine of misuse of confdential information see Vestergaard Frandsen A/S (now called MVF 3 ApS) v Bestnet Europe Ltd [2013] UKSc 31.
- [2004] 2 ac 457, 465; and for the tort's development and application in cases after Campbell see T Aplin et al, Gurry on Breach of Confdence (clarendon Press, 2nd edn 2012) ch 7.
- for instance, in CTB v Newsgroup Newspapers Ltd [2011] ewHc 1334 (QB), where an injunction protecting the plaintiff's anonymity was continued, despite the fact that the plaintiff's identity had already been revealed in parliament and widely circulated on the internet, on the basis that it was still an effective mechanism to protect the plaintiff and his family 'from taunting and other intrusion and harassment in the print media': Tugendhat J at [3].
- as, for instance, in the ‘Solicitors from Hell’ case, Law Society v Kordowski [2011] ewHc 3185 (QB), where the Protection from Harassment Act 1997 (c 40) and Data Protection act 1998 (c 29) (along with defamation) were relied upon successfully to vindicate the plaintiffs' application for an injunction closing the website.
- See wacks, PMF, 267–8 (Draft Bill, clause 3(3)—and for ‘public interest’ elaborated see clause 4).
- See HKLRC (n 6) 168–8.
- Spycatcher (n 20) 282–3 per Lord goff.
- and see D anderson, ‘The failure of american Privacy Law’ in B Markesinis (ed), Protecting Privacy (oxford University Press, 1999) ch 6. To what extent this approach to the newsworthiness defence is necessarily dictated by the first amendment is another question: Prosser (n 18) does not refer to it, but by the Restatement the Supreme court had adopted an expansive approach to the first amendment's dictates beginning with New York Times v Sullivan, 376 US 254 (1964) and in the Restatement (n 19) a Special note was added questioning whether the public disclosure of private facts tort could survive a constitutional free speech challenge: Ibid, 383–4; cf anderson, 159 ('for the present at least [the Supreme court has cast] doubt on the viability of the tort').
- See wacks, PMF, 267–8 (Draft Bill, clause 2(4)).
- 113 f 2d 806 (2d cir 1940).
- Prosser (n 18) 397. for a fuller examination of the social environment of the case (including a new sociological literature supporting the public's interest in gossip, especially in mass media as ‘a valuable social ritual’), see S Barbas, 'The Sidis case and the origins of modern Privacy Law' (2012) 36 Columbia Journal of Law and the Arts 21.
- See Campbell v MGN (n 21). at the very least, Lord Hope said at 484, '[t]he mind that has to be examined is that, not of the reader in general, but of the person who is affected by the publicity. The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity.'
- The last has been a longstanding concern of wacks, as explored in his classic article ‘The Poverty of Privacy’ (1980) 96 Law Quarterly Review 73, and elaborated further in The Protection of Privacy (n 12) 10–12.
- wacks summarises his position in a section (rather amusingly) denoted ‘ten qualms and quibbles’.
- including his article (relied on inter alia by Lord nicholls in Campbell (n 21)) 'Transforming Breach of confdence? Towards a common Law Right of Privacy under the Human Rights act' (2003) 66 Modern Law Review 76.
- See index on censorship: ‘Striking a Balance on Privacy’, X index, 1 november 2013, www.indexoncensorship.org/2010/02/libel-privacy-human-rights; and further e Barendt, 'media intrusion: The case for Legislation' in D Tambini and c Heyward, Ruled by Recluses? Privacy, Journalism and the Media (institute for Public Policy Research, 2002) ch 2.
- N moreham, ‘intrusion’ in warby, moreham and christie (n 2) ch 10 (suggesting that the tort of misuse of private information might develop to deal with ‘non-informational intrusion’).
- for instance, L Austin, 'is consent the foundation of fair information Practices? canada's experience under Pipeda' (2006) 56 University of Toronto Law Journal 181.
- See N Mathys and H Sensecall, 'eU Data Protection Reforms: formal negotiations Kick off with european Parliament's adoption of Revised Draft Regulation', Lexology, 4 november 2013, www.lexology.com/library/detail.aspx?g=4ce95a9c-10b5–46f6–8e0f-0b1a5b626004.
- for instance, J Mills, Privacy: The Lost Right (oxford University Press, 2008); n Richards and D Solove, 'Prosser's Privacy Law: a mixed Legacy' (2010) 98 California Law Review 1887.
- See especially in this vein J whitman, 'Two western cultures of Privacy: Dignity versus Liberty' (2004) 113 Yale Law Journal 1151.
- 'on Uses and misuses of comparative Law' (1974) 37 Modern Law Review 1.
- for some efforts, see S Dutta et al, The New Internet World: A Global Perspective on Freedom of Expression, Privacy, Trust and Security Online (world economic forum in collaboration with inSeaD, comScore, oxford internet institute, 2011); H Lebo, The Digital Future Project: Surveying the Digital Future, year eleven (USc annenberg School center for the Digital future, 2013).
- and see new Zealand Law commission, Privacy: Concepts and Issues (Study Paper 19, 2008), 98 ('attitudes to privacy do not exist in a vacuum: they are shaped by history and culture, and by personal experiences… [T]hey vary widely across historical periods and cultures, and between different individuals and social groups').
- See M Richardson, 'Towards Legal Pragmatism: Breach of confdence and the Right to Privacy' in E Bant and M Harding (ed), Exploring Private Law (cambridge University Press, 2010) 109; and generally c Lindblom, ‘The Science of muddling Through’ (1959) 19 Public Administration Review 79.
- C de Terwange, 'is a global Data Protection Regulatory model Possible?' in S Gutwirth et al (eds), Reinventing Data Protection? (Springer, 2009) ch 10; g greenleaf, 'global Data Privacy Laws 2013: 99 countries and counting' (including global Tables of acts and Bills) (2013) 123 Privacy Laws & Business International Report 10.
- Defamation Act 2013 (c 26), ss 1 and 4.
- as to the serious harm threshold, cf also (at the european level) Springer v Germany, application no 39954/08, european court of Human Rights grand chamber (2012), where the european court accepted that in order to engage art 8 'an attack on a person's reputation must attain a certain level of seriousness and in a manner causing prejudice to personal enjoyment of the right to respect for private life' (emphasis added): Ibid at [83].
- for instance, in considering the possible shape of a statutory cause of action for serious invasion of privacy, the possibility of a serious harm threshold, drawing on the UK defamation reform, has been fagged in the aLRc issues Paper (n 8) 19, and reference is also made to the 'serious interferences with the privacy of individuals' standard for the award of civil penalties under the Privacy Act 1988 (cth) (as amended by the Privacy amendment (enhancing Privacy Protection) act 2012 (cth) sch 4 cl 50) as another possible model.
- wacks, Personal Information: Privacy and the Law (n 13) ch 4.
- Ibid, 238 (emphasis in the original) and generally ch 7.
- an example is wacks' discussion of the confict between autonomy and paternalism regarding the treatment of sensitive health data in Personal Information: Privacy and the Law, where he states, 'i cannot here explore the moral debate between Kantians (who argue for autonomy as a logically necessary feature of being a rational being) and millians (who justify autonomy on utilitarian grounds)', concluding that a balance will need to be struck, which, in a democratic society, should generally favour the individual but in exceptional circumstances may not: Ibid, 243.
- wacks says this explicitly in PMF at 22 ('without suggesting that sociological and philosophical enquiries of this kind be neglected, i have long argued that a more constructive means of resolving some of the problems encountered in regulating the collection, storage, and use of private facts about an individual might be found by seeking to identify what specifc interests of the individual we think the law ought to protect' (emphasis in the original)).
- This was a focus of wacks' early works, ‘The Poverty of Privacy’ (n 32) and The Protection of Privacy (n 12), where much of his critique of modern elastic defnitions of privacy is directed at american scholarship and jurisprudence.
- See above, n 33, for this being wacks' central concern in PMF.
- See, for instance, his Preface to Privacy and Press Freedom (n 14) viii ('the law, like me, has i hope matured').
Journal of Media Law
Volume 5, 2013 - Issue 2