Tort Law Peculiarities - Essay Example

? Tort Law Plan Introduction Thesis ment of the essay: English tort law is in need of urgent reform in order to protect the privacy of individuals. Tort law and statutes that have been used to protect individual’s privacy rights. Definition of privacy. What constitutes individual’s right to privacy and when invasion occurs. 2. An interest for tort law to protect the privacy of individuals Tort law protection in relation to privacy of individual. Means of achieving individual privacy through tort law. Are the current statutory and common law mechanisms sufficient to protect privacy interests of individuals? Main challenges individual face in bringing actions against invasions of their privacy in English courts. Shifting focus of reforms on civil law from questions, standards of liability to issues of civil procedure and damages. Challenges of procedure and damages in bringing actions to protect individuals privacy 3. Protecting privacy in the modern age Individual privacy in the modern age: challenges of protecting privacy. Relationship between internet and media and individual privacy protection. What changes can be made on the law to protect individuals’ privacy. Is the blame for the English law to achieve its duty to protect individual’s privacy blamed on media? 4. Privacy law reforms in the United Kingdom Press and individual privacy. Regulation of press for reforms in the UK for purposes of protecting privacy interests rather than the role of civil law in protection of privacy interests ( Joint Select Committee report –Chapter five and the Leveson report 2002) 5. Right to Privacy and freedom of expression Rights to privacy and freedom of expression: the conflicts arising from rights to privacy and freedom of expression in relation to individuals’ privacy (Mosley v News group Newspaper Ltd (2008) EMLR20). Media and the freedom of expression. Laws governing wrongfully obtaining access to private information and the remedies i.e. interim super injunctions, injunctions and damages. Is there a need for statutory cause of action for privacy? If need be what elements of a statutory cause of action needs to be included. 6. Conclusion “English tort law is in need of urgent reform in order to protect the privacy of individuals.” Discuss Introduction In the old common law individuals are entitled to full protection in person and in property. However, there have been no clear definitions as to the extent of this protection.1 Personal privacy has been invaded with the introduction of instant photographs and newspapers. According to Hughes people are now afraid that what they do or speak in secret may come out into the public domain, if new laws are not put in place to protection individual invasion to privacy.2 The law of tort provided individual with remedy from life and property interference. The right to life only gave individuals protection from battery of all forms. With the recognition of the spiritual, intellect and human feelings legal rights have become broad. Laws have been formulated to protect individuals from offensive noise, odour, dust, smoke and excessive vibrations.3 Statutes and laws English law did not recognize the right to privacy4. It relied heavily on law of trespass, nuisance, defamation and malicious falsehood to protect individual privacy5. Development of statutes such as Protection from Harassment Act 1997, The Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 saw increased advancement in the protection of privacy. With evolution of law it has become clear to individual that hurt, satisfaction and gains in life do not originate from the tangible things. This has therefore led to the legal appreciation of individuals’ opinions, sentiments and feelings. The growth in the common law has allowed judges to afford compulsory defence without having to ask for directions from the parliament.6 Introduction of tort on privacy in the English law Privacy deals with individuals’ information’s and feelings.7 With the introduction of privacy law personal information will be well protected resulting to too few cases on infringement of privacy rights. Therefore, there is need to have sufficient regulations to offer protection on individual’s privacy. There has been over reliance of the English law on the law of torts such as defamation, libel and trespass to defend individual’s right to privacy.8 With the lack of tort of privacy, reasonable remedies of self-belief and other torts linked to intentional infliction of damage and the administrative law ideologies and proper use of police rules have been used to explain cases relating to violation of personal privacy. This put the tort of privacy at risk, Prince Albert V Strange.9 In wilkson v. Downton the judges argued that intentional infliction of harm was a form of trespass. According to the human rights Act unjustified invasion to individual privacy is in itself a form of trespass to person which covers other interests other that protection of individuals from bodily harm. In Gordon Kaye v. Andrew Robertson and Sports newspapers Ltd showed that the English common law does not encompass a privacy tort and has not acted to provide remedies for privacy intrusions.10 This is a clear demonstration of the limits existing English law and limitation of the approach that relies upon inadequate existing remedies to protect privacy. In Bernstein of Leigh v. Skyviews and General Ltd there was no remedy for trespass to land or nuisance that was awarded. In Hunter V canary Wharf Ltd, the remedy for nuisance failed but it is currently covered in the Protection from Harassment Act 1997.11 Definition of privacy Individual privacy means the right of a person to be “left alone”.12 Invasion of individual’s rights includes injurious falsehood, defamation, and passing off, conspiracy, intentional infliction of harm, harassment and nuisance. People desire to control access to self and restrict others from having access to them.13 According to Craig invasion of privacy means being offensive to a person, causing pain, depression, causing anxiety, hopelessness and malaise. For privacy to exist people need to respect each other, love, build complete trust and avoid crossing each other’s boundaries. In the law of slander and libel, wounded feelings are treated as a substantive cause of action.14 The current law on privacy does not afford any remedy for mental suffering from intentional or unwarranted violation of the honour of another. Right to privacy and invasion to privacy Today the right to privacy is contained in article 8 of the European Convention of Human Rights and in the UK law through the Human Rights Act (HRA) 1998.15 According to the European and Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the English law has a duty to protect individuals’ from unjustified invasions to privacy. The ECHR and Article 8 of the Convention require the judiciary in s.6 to respect the convention in the development of common law. These have adverse effects in the development of protection of individual’s privacy in the English common law. Law of torts is linked to intentional infliction of harm to persons and administrative laws in resolving cases involving invasion of individual privacy. The combination of these torts is a clear indication that there is no general law on individual privacy exists in English law, (Wainwright v Home Office)16. The law of tort has provided inadequate protection to individuals despite the various efforts to stretch them to cover the invasion of privacy. English common law has failed to develop remedies against individual privacy intrusion.17 In Douglas V Hello! Ltd (No 3) the court of appeal failed to establish a separate tort of privacy since it does not fall to be treated as a tort under English law.18 The English courts therefore, needs to develop a framework for tort of privacy outlining both privacy interests and the elements constituting the tort. Right to privacy in the modern age The internet has brought various issues which should be addressed by the society and law. Invention of “snap cameras, telephone and newspapers printing have posed a threat to privacy.19The inventions and other business models call for steps to be put in place for the protection of the person (HLR). Law must afford some remedy for unauthorized circulation of individual photographs and invasion of privacy by newspapers. Since invasion to privacy is through these instruments it bears superficial resemblance to the wrongs dealt with by the law of tort in slander and libel. Today printed information or gossip can travel very fast. With the internet privacy has become a thing of the past. Individuals are able to say whatever they want about anyone. Societal norms have been broken leading to lack of privacy. In the recent years the ethical limitations on the conduct of press have weakened. Commercialization of the internet has further weakened the ethical boundaries. This may hinder the evolution of privacy laws and hence calls for further interventions. Though efforts have been made to regulate the media through the courts issuing injunctions, internet has not been subjected to the same.20 Though efforts have been made to strengthen information privacy the law still lags behind in regards to changes in technology. Technology has developed new ways through which individuals can interact with others. This has led to a change in the normative rules and has opened avenues for individuals to invade the privacy of others. For example, installation of CCTV cameras along the streets or in buildings leaves people with no option but to be filmed.21 In addition, internet, social media and blogs have led to the death of privacy while facilitating the freedom of expression. Privacy and Law reforms in the United Kingdom In UK there are many law and regulation that have been put in place to govern information privacy. The laws are trying to ensure that there exists a balance between privacy of individuals and the legal use of personal information by the state and private institutions. There being no comprehensive law on privacy various statutes, legal regulations, common law rules and information regulations have been used to protect privacy. Article 8 which was established in the UK did define privacy exhaustively to include right to identity and personal development, gender identification, sexual orientation, right to establish relationships and from environmental pollution. With the incorporation of Article 8 in the UK law interference of individuals privacy by public bodies is considered illegal unless if the interference is authorised, Campbell v Mirror group newspapers (2004) and Liberty V UK (2008).22 However over reliance on Human Rights Act and Article 8 could leave information privacy open to attacks from the government or public agencies. This is because the government can define interests for national security, public safety or economic well being very broadly and provide evidence for infringing information privacy.23 Privacy rights and freedom of expression Individuals have a right to privacy and freedom of expression. A conflict arises when individuals use their right to express themselves freely while interfering with privacy of others person’s right to privacy.24 To be able to solve such cases in compliance with the Human Rights Act 2000, courts have adopted the law of confidence and tort of misuse of private information. Just like the internet, the culture, practices and ethics of the press have raised heated debates about privacy.25 Another issue that arises from the right to privacy and freedom of expression is that more weight is given to the freedom of privacy. The people of press felt they were not adequately protected in the courts. Various regulations have been put in place to regulate the media. Leveson argues that the press have overstepped their boundaries of propriety and decency. They have made gossip a trade. They spread information of sexual relations in the daily newspapers and broadcast them. The challenge is that now the internet, blogs and social networks have been included in spread of information hence increasing the scope. This has brought a challenge in drawing the line that exists between privacy and freedom of speech.26 Challenges individuals face when bringing actions to protect their invasion to privacy The main challenge facing individuals is the inability to distinguish between private life and public life. Some rights are for the social benefit of the whole community. These rights may be considered to have more value than the individual rights to privacy. Individual rights to privacy must put into consideration and other competing rights and interests such as the freedom of expression and the common good of the society.27 In Wainwright v Home office, where individuals suffered humiliation and distress for being strip-searched for drugs, there was no consideration of confidential information which arose upon which a duty of confidence could be based. In the cases of trespass like when Alan was asked to take of his clothes by the Home office while in prison, the privacy tort could not be held because it was not recognized in the English law.28 Individuals are also not able to prove their invasion of privacy due to the lack of understanding on the importance of privacy and the legal redress available. Due to the courts inability to recognize the tort of privacy, individuals are not able to be compensated well for the damages they have incurred. Compensation for damages to invasion to individual’s privacy can be either aggravated compensatory damages or exemplary damages which occurred in Grosse v Purvis.29 Private information Information can be regarded as private if protected by Article 8.30 Information privacy is concerned with the collection, use and communication of personal information. This information may be obtained through body searches, scanning or electronic tagging. Use of personal information by the public and private sector mainly in health care and social services poses a challenge to privacy. Information and communication technology has made it easier for individual to collect process and share information about other people lives. This information has been used to create profiles regarding individuals’ habits and behaviour. The information can be used to track individual locations and movements, evaluate risks and opportunities and share policies and business plans. Individuals have been put under strict surveillance through telephone calls, sending emails or browsing in the internet.31 Though the collection of individual information and surveillance is essential for law enforcement, national security and service delivery in the public sector, this information has become increasingly shared. This has led to misuse, misplacement and misunderstandings resulting to the breach of Data privacy Act32. With the growing demand for information existing privacy protections and future laws are likely to fail. However, there has been an increased jurisprudence for privacy in national and international courts. The judges have ruled in favour of privacy over appeals to national security and the needs of law enforcement. To create harmony between the law of privacy, regulations on surveillance and data collection, future reforms must be driven by a clear set of rules. In Campbell V MGN limited it was agreed that the newspaper acted according to law to publish the information that the appellant was a drug addict since she had made contrary public statements. However, reporting that a narcotic anonymous was treating her and including all the details regarding the treatment and a photograph of the plaintiff being outside a narcotics Anonymous premises infringed her rights to privacy33 Statutory cause of action to privacy For privacy to warrant a statutory cause of action there must be a balance between the freedom of expression or public interest and the right to privacy Sulman v. Group W Productions Inc.34 Individual’s privacy can be protected through the formulation of new regulations, administrative legislation, educational and other legal methods. According to the ALRC 2008,35 the government laws should provide special laws that provide statutory cause of action for invasion of the right to privacy Australian Broadcasting Corporation v. Lenah Game Meats Pty Ltd.36 Other torts of law such as defamation and trespass enjoy defence the privacy tort should be treated in a similar manner. There has been strong support to the enactment of the statutory cause of action. Claims have been raised that though some laws protect privacy they have not been able to do so in all circumstances and they provide insufficient remedies. For example the Commonwealth Privacy Act protects individuals in terms of information privacy and data protection. Introduction of the cause of action must be part of a uniform law exercise. The media are in opposition of the statutory cause of action. They argue that the provision of a statutory would favour privacy at the expense of their freedom of expression. Various case laws have illustrated gaps which arise in the protection of privacy (Giller v.Procopets)37. Statutory cause of action should be established to protect privacy in private law and provides a court with a framework to develop legal concepts for privacy. Conclusion Privacy right is applicable to individual private, family and public life, and personal information. It is the responsibility of the government to ensure that individual enjoys their rights to privacy. Strict observance of the right to privacy may affect individual freedom of expression. Media and new technology have posed challenges in the governments and courts efforts to come up with legislations on the right to privacy. Media practitioners raise issues that the right to privacy will infringe their freedom of expression. They also feel that the measures that have been put on them to ensure that the respect individual’s right to privacy are not applicable to those publishing through the internet. Bibliography Campbell v MGN Ltd. Giller v.Procopets Sulman v. 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McGill Law Journal, Vol. 55, No. 2, pp. 7-24 Lord Justice Leveson, ‘Privacy and the Internet’, Speech Given at the Communications Law Centre, UTS Australia, 7 December 2012 Markesinis, B, S and Deakin, S, F, Tort Law, 4th Edition. Oxford: Clarendon Press, 1999, pp.174-200 Markesinis B, O’Cinneide, F and Hunter- Henin, M, Concerns and Ideas about Developing English Law of Privacy (and how Knowledge of Foreign Law Might be of help): A research Project Undertaken by the Institute of Global Law. Pp. 11-37 Mulheron, R, ‘A Potential Framework for Privacy? A Reply to Hello!’ 69(5) MLR 679, Introduction, 2006, pp. 696-709 Nissenbaum, H, Privacy in Context: Technology, Policy, and the Integrity of Social Life, Stanford, CA: Stanford University Press, 2010, pp. 65-127 NSW Law Reform Commission, Invasion of Privacy, Report 120. Pp. 19-31 Patricia, B, L, Federalization in Information Privacy Law: The Yale Law Journal, Vol. 118, No. 5, pp. 4-20 Solove, D, J, the Digital Person: Technology and Privacy in the Information Age. New York: New York University Press, 2004, pp. 56-75 Slobogin, C, Privacy at Risk: The New Government Surveillance and the Fourth Amendment. Chicago: University of Chicago press. 2007, pp. 79-117 The Right Honourable Lord Justice Leveson, an Inquiry into the Culture, Practices and Ethics of the Press Report. Vol. 4, 2012 Warren & Brandeis, ‘The Right to Privacy’ 4 Harv L Rev 193, 1890, (pp. 200-212) Wessing, T, UK Privacy Law and Press Regulation Reform: The Parliamentary Committees Recommendations, 2012, pp 2-4 Read More