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Whose autonomy matters? Reconciling the competing claims of privacy and freedom of expression

Published online by Cambridge University Press:  02 January 2018

Geoffrey Gomery
Geoffrey Gomery*
Affiliation:
Nathanson, Schachter & Thompson LLP, Vancouver BC
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Abstract

English law has recently recognised a tort of misuse of private information through the development of the tort of breach of confidence. This paper considers the conceptual issues that arise in the particular context of cases contesting the privacy of information exchanged in an intimate relationship. The courts have said that the purpose of protecting privacy through the tort is the promotion of individual autonomy. Examining what is entailed in this approach, it is argued that cases involving shared privacies can only be understood as involving the indirect promotion of autonomy through the protection of certain socially sanctioned relationships. A framework of analysis is developed under which the underlying issues are laid bare and through which the reasoning of the courts may be understood and criticised.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 3 , September 2007 , pp. 404 - 429
Copyright
Copyright © Society of Legal Scholars 2007

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References

Notes

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2. Based on Stephens v Avery [1988] 1 Ch 449. The issues are discussed below.

3. It appears likely that Salinger, a famous writer, would be considered as an ‘involuntary public figure’ and, as such, would be disentitled to privacy protection, Restatement of the Law, Torts 2d (St Paul, Minn: American Law Institute, 1976) s 652D, comment f.

4. Following SD Warren and LD Brandeis ‘The right to privacy’ 4 Harvard L Rev 193 at 195.

5. [2006] EWCA Civ 1714 (unreported) 14 December 2006; affirming [2005] EWHC 3003 (QB) (unreported) 21 December 2005.

6. Ibid, at [8].

7. [2003] UKHL 53, [2004] 2 AC 406 at [28]–[35].

8. [2005] EWCA Civ 595, [2006] QB 125 at [53].

9. [2004] UKHL 22, [2004] 2 AC 457.

10. Ibid, at [14].

11. Ibid, at [11].

12. Ibid, at [46]–[47].

13. Re S (A Child)(Identification: Restrictions on Pubication) [2004] UKHL 47, [2005] 1 AC 593 at [17] per Lord Steyn.

14. Zimmerman, D.L. ‘Requiem for a heavyweight: a farewell to Warren and Brandeis’s privacy tort’ (1983) 68 Cornell L Rev 291 Google Scholar ; G Phillipson ‘Judicial reasoning in breach of confidence cases under the Human Rights Act: not taking privacy seriously?’[2003] EHRL Rev 54 (Special Issue) at 64–65.

15. McKennitt v Ash, above n 5, at [31].

16. Ibid, at [32], and see also at [55].

17. Ibid, at [51].

18. In Douglas v Hello! Ltd (No 3), above n 8, at [126], the court held that the individual plaintiffs’ legally recognised interest in the privacy of information about their wedding did not amount to a right of intellectual property. An appeal was allowed when this paper was at proof stage, but it is not clear if the House of Lords disagreed with the Court of Appeal on this point ([2007] UKHL 21 at [18] per Lord Hoffmann).

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20. McKennitt v Ash, above n 5, at [31]–[32].

21. Campbell v MGN Ltd, above n 9, at [50] per Lord Hoffmann. Lord Nicholls of Birkenhead referred to the ‘well-being and development of an individual’ at [12], and Baroness Hale of Richmond to ‘informational autonomy’ at [134]; and see Hosking v Runting [2005] 1 NZLR 1 (CA) at para 239 per Tipping J.

22. [2001] QB 967 (CA) at 1001.

23. (1998) 26 EHRR 241 at para 32.

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25. Von Hannover v Germany (2005) 40 EHRR 1 at para 50ff; and see McKennitt v Ash, above n 5, [37]–[41].

26. Campbell v MGN, above n 9.

27. Douglas v Hello! Ltd (No 3), above n 8, varying [2003] EWHC 786 (Ch), [2003] 3 All ER 996. The court praised Phillipson’s ‘lucid article’ at [47].

28. Above n 5, at [41] and [64].

29. Associated Newspapers Limited v HRH the Prince of Wales [2006] EWCA Civ 1776, [2007] 2 All ER 139 at [67]–[69].

30. Above n 9, at [21] per Lord Nicholls of Birkenhead; [85] per Lord Hope of Craighead; [134] per Baroness Hale of Richmond and [165] per Lord Carswell.

31. Halford v United Kingdom (1997) 24 EHRR 450; PG v United Kingdom (Application No 44787/98); Peck v United Kingdom (2003) 36 EHRR 41; Perry v United Kingdom (Application No 63737/00); Von Hannover v Germany, above n 25.

32. Gomez-Arostegui, H.T. ‘Defining private life under the European Convention on Human Rights by referring to reasonable expectations’ (2005) 35 Cal W International LJ 153 Google Scholar at 163–176.

33. Restatement of the Law, above n 3, §652D.

34. Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199 at para 42 per Gleeson CJ.

35. Hosking v Runting, above n 21, at para 117 per Gault and Blanchard JJ and see para 256 where Tipping J suggests a slightly modified test of ‘a substantial level of offence to a reasonable person’.

36. Above n 9, at [22].

37. Ibid, at [96].

38. Above n 29, at [35].

39. The reference was to Douglas v Hello! Ltd (No 3), above n 8.

40. Campbell v MGN, above n 9, at [99] per Lord Hope of Craighead and [136] per Baroness Hale of Richmond.

41. JS Mill Principles of Political Economy (1848) p 560. The liberal approach and its foundation in a concept of autonomy is forcefully put by Beardsley, E.L. ‘Privacy: autonomy and selective disclosure’ in Pennock, JR and Chapman, JW (eds) Privacy (New York: Atherton Press, Nomos, 1971).Google ScholarPubMed

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43. Ibid, chs 14 and 15.

44. Ibid, pp 395–399.

45. Wacks, R. ‘The poverty of privacy’ (1980) 96 LQR 73 Google Scholar; ; ) ch 2.

46. The courts’ sensitivity to this tends to be revealed in passing dicta, such as that of Ward LJ in Ackroyd v Mersey Care NHS Trust [2003] EWCA Civ 663 (unreported) 16 May 2003 at [88]: ‘There is today, in my view, a palpable tension between the judiciary and elements of the press’.

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48. Barrymore v News Group Newspapers Limited [1997] FSR 600 (Ch); L v G [2002] DCR 234 (NZ Dist Ct).

49. Taylor, C. Cross-purposes: the liberal-communitarian debate’ in Rosenblum, N (ed) Liberalism and the Moral Life (London: Harvard University Press, 1989) pp 167–168.Google Scholar

50. I am speaking of spoken words, non-verbal communication and shared experiences. By virtue of copyright law, letters are different; they belong to the author. In a foreword to her memoir, Maynard explained how she had taken pains not to quote from Salinger’s letters to her. She reported only her response to the letters.

51. Re Roddy (A Child) [2003] EWHC 2927 (Fam), [2004] 1 FCR 481 at [36].

52. Raz, J. ‘Free expression and personal identification’ (1991) 11 OJLS 303.CrossRefGoogle Scholar

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54. Tammer v Estonia (Application No 41205/98).

55. A v B plc [2002] EWCA Civ 337, [2003] QB 195 at 208.

56. See text at nn 12 and 13.

57. This restates, in general terms, my criticism of the reasoning of the court in McKennitt v Ash; see the text at n 18.

58. Weinstein, W.L. The private and the free: a conceptual inquiry’ in Pennock, JR and Chapman, JW (eds) Privacy (New York: Atherton, Nomos, 1971).Google Scholar

59. Feldman, above n 45, at 53–55.

60. Ibid, especially at 52. Feldman views autonomy as requiring control over the disclosure of information, consistently with the approach I have termed ‘privacy as autonomy’. He expressly reserves comment on Raz’s indirect approach to autonomy.

61. Youth Justice and Criminal Evidence Act 1999, s 80(2)–(4).

62. Duchess of Argyll v Duke of Argyll [1967] Ch 302 at n 8.

63. Attorney-General v Jonathan Cape Ltd [1976] QB 752 at 770–771.

64. Under Companies Act 1985, ss 382(1) and 383(1) a company is required to keep minutes of the meetings of its directors and general meetings of its members (shareholders) and is required to make the latter but not the former available to members on request.

65. Mowbray, J. et al Lewin on Trusts (London: Sweet & Maxwell, 17th edn, 2000)Google Scholar at para 23-11.

66. Above n 4, at 196.

67. Glendon, M.A. The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989) p 313.Google Scholar

68. Ghaidan v Godin-Mendoza[2004] UKHL 30, [2004] 2 AC 557 at [125]–[127] per Lord Rodger of Earlsferry, [139]–[142] per Baroness Hale of Richmond; Secretary of State for Work and Pensions v M[2006] UKHL 11, [2006] 2 WLR 637 at [2] per Lord Bingham of Cornhill, [37]–[38] per Lord Walker of Gestingthorpe, [99]–[100] and [112] per Baroness Hale of Richmond, [139]–[140] per Lord Mance; Lowe, N and Douglas, G. Bromley’s Family Law (London: Butterworths, 9th edn, 1998) pp 1 Google Scholar and 106;

69. A v B plc, above n 55, at [43]–[45]. Contrast CC v AB [2006] EWHC 3083 (QB) (unreported) 4 December 2006 at [22]–[30] and National Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517 (CC) at para 32.

70. Above n 5.

71. Catherine MacKinnon criticises legal protection of privacy in US jurisprudence precisely because she views the institution of the family as central to the subjection of women ‘whereby women are deprived of identity, autonomy, control and self-definition’; MacKinnon, CA Toward a Feminist Theory of the State (London: Harvard University Press, 1989) p 193.Google Scholar

72. The Oxford English Dictionary’s website dates the adoption of this word into English to 8 October 1981, in an article in the Washington Post concerned with Jackie Onassis.

73. Douglas v Hello! Ltd, above n 8, at [9].

74. Von Hannover v Germany, above n 25, at para 59.

75. Neill, B. Privacy: a challenge for the next century’ in Markesinis, B. (ed) Protecting Privacy (Oxford: Oxford University Press, 1999) p 25.Google Scholar

76. Rawls, J. and Kelly, E Justice as Fairness: A Restatement (London: Harvard University Press, 2001) pp 54–60.Google Scholar

77. Dworkin, RM Sovereign Virtue: The Theory and Practice of Equality (Cambridge, MA: Harvard University Press, 2000)Google Scholar ch 7.

78. Above n 42.

79. Tammer v Estonia, above n 54, at para 69.

80. The English court does not take the margin of appreciation into account but treats the European Convention as an expression of fundamental principles for the English court to apply: R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326 (HL) at 380–381 per Lord Hope of Craighead.

81. CC v AB, above n 69, at [19].

82. Re S (A Child), above n 13.

83. Von Hannover v Germany, above n 25, paras 63–64.

84. They may also point to the desirability of legislative intervention, but that seems not to be on the cards and, even if it were, it is unlikely that it could be detailed enough to provide the guidance that is required.

85. Duchess of Argyll v Duke of Argyll, above n 62.

86. Above n 55 and see Phillipson, above n 14.

87. Maccaba v Lichenstein [2005] EMLR 6.

88. Above n 69.

89. Above n 9, and see the text at n 97 below.

90. Theakston v MGN Limited [2002] EMLR 22. However, the publication of photographs taken during the plaintiff’s visit to a brothel was enjoined.

91. Above n 9.

92. McKennitt v Ash, above n 5, at [30].

93. Contrast the observation of Jacob J in Barrymore v News Group Newspapers Limited, above n 48, at 603: ‘The fact is that when people kiss and later one of them tells, that second person is almost certainly breaking a confidential arrangement’.

94. McKennitt v Ash, above n 5, at [46]–[48].

95. Ibid, at [56]–[70].

96. Re Roddy (A Child), above n 51.

97. Above n 9.

98. Especially at [153] and [157] per Baroness Hale of Richmond and [165] and [169] per Lord Carswell.

99. Notably Peck v United Kingdom, above n 31, Von Hannover v Germany, above n 25, Douglas v Hello! Ltd, above n 8, Aubry v Éditions Vice-Versa Inc [1998] 1 SCR 591 and Theakston, above n 90 (recall that Theakston was successful in relation to the photographs). See also Campbell v MGN Ltd, above n 9, at [121]–[124] per Lord Hope of Craighead.

100. Ibid, at [62].

101. Above n 25, at [66].

102. Kaye v Robertson[1991] FSR 62 (CA).