Privacy, confidence and horizontal effect: “hello” trouble

Cambridge Law Journal

Volumn 62, Issue 2, 2003, Pages 444-473

  Morgan, Jonathan ^a  

^a University of Cambridge   (United Kingdom)

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EID: 85012501118     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197303006378     Document Type: Article

References (151)

1. See HL Deb. Vol. 583 col. 785 (24 November 1997).
2. [2001] Q.B. 967. Sedley L.J. stated that the H.R.A. “arguably gives the final impetus to the recognition of a right of privacy in English law”, at p. 998. Noted M. Elliott [2001] C.L.J. 231.
3. Leading combatants include: M. Hunt, “The ‘horizontal effect’ of the H.R.A.” [1998] P.L. 423; Sir R. Buxton, “The H.R.A. and private law” (2000) 116 L.Q.R. 48; Sir H.W.R. Wade, “Horizons of horizontality” (2000) 116 L.Q.R. 217; N. Bamforth, “The true effect of the H.R.A.” (2001) 117 L.Q.R. 35; D Beyleveld and S.D. Pattinson, “Horizontal applicability and horizontal effect” (2002) 118 L.Q.R. 623.
4. Contrast H. Fenwick and G. Phillipson, “Breach of confidence as a privacy remedy in the H.R.A. era” (2000) 63 M.L.R. 660.
5. Human Rights Act 1998 (“H.R.A.”), ss. 6(1) and 8.
6. For some attempts see R. Wacks (ed.), Privacy (Aldershot 1993), Volume 1, pp. 1-278.
7. R. Wacks, The Protection of Privacy (London 1980), p. 10. It is hardly very convincing to rejoin that “most constitutional rights are drafted in general terms”-E. Barendt, “Privacy as a constitutional right and value” in P.B.H. Birks (ed.), Privacy and Loyalty (Oxford 1997), p. 12.
8. [1991] F.S.R. 62. See further Section III B, below.
9. P. Prescott Q.C. “Kaye v. Robertson: A Reply [to Professor Markesinis]” (1991) 54 M.L.R. 451, 454.
10. (1951) 98 N.E. 2d. 286, Massachusetts. The Press Complaints Commission rejected a complaint about a somewhat similar situation in England (case of Mr. William Salisbury, P.C.C. Report 51, 2000).
11. D. Feldman, “Privacy as a civil liberty” (1994) 47(2) C.L.P. 41.
12. Les Editions Vice-Versa Inc. v. Aubry [1998] 1 S.C.R. 591. See, for the implications and possible limits of the decision, M. Russell in M. Colvin (ed.), Developing Key Privacy Rights (Hart: Oxford 2002).
13. Human Rights Act., para. 59, per L'Heureux-Dube and Bastarache JJ. French law similarly: see E. Picard, “The Right to Privacy in French Law” in B. Markesinis (ed.), Protecting Privacy (Oxford 1999), p. 91.
14. J. Ravanas, La protection des personnes contre la realisation et la publication de leur image (Paris 1978), pp. 388-389 (as translated in Canadian Supreme Court Reports). Marginally less orotund in the original French. Cited at para. 69.
15. See H. Stoll, “The general right to personality in German law” in B.S. Markesinis (ed.), Protecting Privacy (Oxford 1999) and B.S. Markesinis and N. Nolte, “Some comparative reflections on the right of privacy of public figures in public places” in P.B.H. Birks (ed.), Privacy and Loyalty (Oxford 1997).
16. H.R.A., ss. 1 and 2.
17. L. Doswald-Beck, “The meaning of the right of respect for private life under the E.C.H.R.” (1983) 4 H.R.L.J. 283.
18. An early, comprehensive consideration of Article 8 concluded that photography even in a public place should fall within its scope: J. Velu, “The E.C.H.R. and the right to respect for private life, the home and communications” in J. Robertson (ed.), Privacy and Human Rights (Manchester 1973), pp. 54-55
19. Resolution no. 1165 (1998).
20. Earl and Countess Spencer v. UK (1998) 25 E.H.R.R. C.D. 105.
21. Decision of 28 January 2003. See also P.G. v. UK, decision of 25 September 2001 (covert recording of prisoners’ voices).
22. Para. 43.
23. See paras. 105-111. For judicial doubts that breach of confidence could apply to photographs of a person in the street see Campbell v. M.G.N. [2002] EWCA Civ 1373 [2003] 2 W.L.R. 80, para. [33].
24. R. v. Broadcasting Standards Commission, ex parte B.B.C., The Times, 14 September 1999.
25. [2001] Q.B. 885. It has been pointed out that by giving a company rights, the “personality” view of privacy is undermined: C. Munro, “Aspects of privacy” [2001] P.L. 1. This, however, turned in casu on the particular wording of the statute (see Broadcasting Act 1996, s. 111(1)), and both Hale L.J. and Lord Mustill were at pains to leave open the question of corporations’ privacy rights in the wider context: [2001] Q.B. 885, 899-901.
26. See T.A.O. Endicott, “Questions of law” (1998) 114 L.Q.R. 292, for the argument that a “question of fact and degree” (as here) becomes a “question of law” when the law requires a particular answer to it, positive or negative. Dr. Endicott's central authority Edwards v. Bairstow [1956] A.C. 14 is followed in ex parte B.B.C. [2001] Q.B. 885.
27. Restatement of Torts (Second), para. 652C.
28. Restatement of Torts (Second)., Comment (a).
29. Noting that it has refused to do so, hitherto: Lyngstrad v. Annabas [1977] F.S.R. 62; Re Elvis Presley Trade Marks [1999] R.P.C. 567. See W.R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (4th edn., London 1999), pp. 335 and 642-643. The Press Complaints Commission has ruled that the privacy sections of its Code of Practice cannot be used to protect the commercial value of images, in rejecting Mr. Michaelangelo Attard's complaint (Report 55, 2001).
30. Cm. 1102 (1990), para. 12.8. Accordingly, the restriction on freedom of expression entailed was thought not to be justified.
31. Cosmopolitan, May 1999, p. 69ff. See also the facts of Kelley v. Post Publishing Co. and Peck v. UK, cited above.
32. Cornish, Cosmopolitan. at p. 642.
33. As suggested in Infringement of Privacy: Consultation Paper (Lord Chancellor's Department 1993).
34. [2001] Q.B. 967. For the trial, see now [2003] EWHC 786 (Ch.).
35. [2001] Q.B. 967, 1012. Likewise Sedley L.J. at 1001: recognising a strongly arguable privacy claim “is in my belief to say little, save by way of a label, that our courts have not said already over the years [in cases on breach of confidence]”.
36. A v. B [2002] EWCACiv 337, [2003] Q.B. 195, para. [11(vi)].
37. Law Com. Report 110 (1981), paras. 2.4. See generally paras. 2.2-2.6; 5.12; 6.69. This was despite the fact that the Law Commission's examination was a direct consequence of the Younger Committee on Privacy's having noted that breach of confidence had an underrated potential for the protection of privacy (see Cmnd. 5012).
38. See, for a summary of his arguments, R. Wacks, Personal Information, Privacy and the Law (Oxford 1989), pp. 132-134.
39. R. Wacks, “Breach of confidence and the protection of privacy” (1977) 127 N.L.J. 328. In his judgment after the trial in Douglas, Lindsay J. treated the case as one turning on breach of confidence, and declined to rule on privacy. See [2003] EWHC 786 (Ch.), para. [229].
40. [1967] Ch. 302. See W. Wilson, “Privacy, confidence and press freedom: A study in judicial activism” (1990) 53 M.L.R. 43. Cf. Barrymore v. News Group Newspapers [1997] F.S.R. 600.
41. “Confidence and privacy: A re-examination” [1996] C.L.J. 447. See cases cited therein, and Creation Records v. News Group Newspapers [1997] E.M.L.R. 444. In December 2000, however, the same authors still felt able to describe the new approach as only “somewhat inchoate” and with “as yet a relatively slight and insecure grounding in authority”: see n. 4 above, at p. 673.
42. A.-G. v. Guardian Newspapers (No. 2) [1990] 1 A.C. 109, 281.
43. [2001] Q.B. 967, 1001. See, more cautiously, Keene L.J. at p. 1012.
44. As suggested in Infringement of Privacy: Consultation Paper., at pp. 984 and 988.
45. Douglas was followed in Venables v. News Group Newspapers [2001] Fam. 430 (Butler-Sloss P. granting injunctions contra mundum, to prevent disclosure of notorious young offenders’ true identities, on basis of law of confidence). At the trial of Douglas, the High Court held that there was a duty of confidence-whether properly personal or commercial in nature-which the defendants had breached. [2003] EWHC 786 (Ch.).
46. Thus, even if a “relative” approach is taken to the public domain, as advocated by Fenwick and Phillipson, n. 4, above (and followed in A.-G. v. Times Newspapers [2001] 1 W.L.R. 885), there can still be information which is private but indubitably non-confidential.
47. Societe Press-Office v. Sachs Cass. Civ. 2e, 6 janvier 1971 (Cour de cassation). Translation in W. van Gervan and J. Lever, Tort Law (Oxford 2000), p. 185.
48. With respect, it is difficult to see how it can be brought within the scope of confidence by pointing to the (no doubt) unauthorised use of the information: Fenwick and Phillipson, note 4 above, at pp. 676-677. It simply lacks the necessary quality of confidence about it. The authors in fact talk of the information being “personal” and “private”, thus eliding the distinct concepts (As suggested in Infringement of Privacy: Consultation Paper.). The distinction between the personal and the confidential is emphasised in Law Com. Report 110 (1980), para. 5.12.
49. A.m. Tettenborn, “Breach of confidence, secrecy and the public domain” (1982) 11 Anglo American L.R. 273, 274.
50. As in disclosure of even widely know intimate secrets: As suggested in Infringement of Privacy: Consultation Paper., at p. 275.
51. [1982] Q.B. 1, 28.
52. A.-G. v. Guardian Newspapers (No. 1) [1987] 1 W.L.R. 1248.
53. Equity should not act in vain; nor like King Canute; nor like the little Dutch boy putting his finger in the dyke as it collapses altogether (As suggested in Infringement of Privacy: Consultation Paper., at pp. 1269-1270). Judges seen “beating the air”; “homely metaphors about empty stables or escaping cats” (per Lord Oliver of Aylmerton, As suggested in Infringement of Privacy: Consultation Paper., at p. 1321). Cf. Bingham L.J. in ‘Spycatcher 2” [1990] 1 A.C. 109, 223: Equity should not imitate the Pope who issued a Bull against Halley's comet.
54. Voltaire, Candide, Chapter 23: “Dans ce pays-ci il est bon de tuer de temps en temps un amiral pour encourager les autres”.
55. [1987] 1 W.L.R. 1248, 1298.
56. Contrast the unanimous view as to the futility of final injunctions in Spycatcher 2 [1990] 1 A.C. 109.
57. (1928) [1964] 1 W.L.R. 109n.
58. As suggested in Infringement of Privacy: Consultation Paper., at p. 111. See also Lord Denning M.R. (dissenting) in Schering Chemicals [1982] Q.B. 1, 22, approved by Lord Oliver of Aylmerton (also dissenting) in Spycatcher 1 [1987] 1 W.L.R. 1248, 1319.
59. [1990] 1 A.C. 109, 285-286.
60. [1982] Q.B. 1, 27-29. Shaw L.J. went on to mention the reasons given above.
61. [1987] 1 W.L.R. 1248, 1289.
62. As suggested in Infringement of Privacy: Consultation Paper., at p. 1305. Lord Templeman (who had been the other majority judge in Schering Chemicals) refers continually to the “treachery” of Wright, throughout his concurring speech in Spycatcher 1.
63. (1982) 11 Anglo-American L.R. 273, 280.
64. [1990] 1 A.C. 109, 271, 276-278. Lord Jauncey of Tullichettle agreed that Wright would still be under the obligation, but thought that the Sunday Times was no longer sufficiently connected with him. As suggested in Infringement of Privacy: Consultation Paper., at pp. 293-294.
65. As suggested in Infringement of Privacy: Consultation Paper., at p. 265.
66. As suggested in Infringement of Privacy: Consultation Paper., at pp. 285-289.
67. As suggested in Infringement of Privacy: Consultation Paper., at pp. 286-287. Lord Goff rejected the interpretation of Mustad v. Dosen put forward by Professor Tettenborn (and also the reasoning in Schering Chemicals, by implication). As suggested in Infringement of Privacy: Consultation Paper., at pp. 285-286.
68. It has been suggested that the growing tendency to refer to the “tort” of breach of confidence reflects this shift: M. Tugendhat Q.C. and I. Christie, The Law of Privacy and the Media (Oxford 2002) p. 199.
69. For further scepticism about confidence providing an adequate privacy law: R. Singh Q.C. and J. Strachan, “The right to privacy in English law” [2002] E.H.R.L.R. 129.
70. The first of Lord Greene M.R.'s requirements in the leading case, Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. [1948] R.P.C. 203, 215. For this reason, the Government's arguments in Peck v. UK while unconvincing as to the scope of “private life” are indeed fatal for any action for breach of confidence. Cited above, n. 23.
71. [2001] EWCACiv 2081, [2002] Q.B. 1334.
72. The first of Lord Greene M.R.'s requirements in the leading case, para. [87] and [98].
73. The first of Lord Greene M.R.'s requirements in the leading case., para. [99].
74. See HL Deb. Vol. 583 col. 784-785 (24 November 1997).
75. See further Sir B. Neill, “Privacy: A challenge for the next century”, in B.S. Markesinis (ed.), Protecting Privacy (Oxford 1999).
76. W.W. Buckland (P. Stein ed.), A Textbook of Roman Law From Augustus to Justinian (3rd edn., Cambridge 1963), p. 590.
77. Itself an historical accident: King v. Lake (1667) Harl. 470; Thorley v. Lord Kerry (1812) 4 Taunt. 355. See J. M. Kaye, “Libel and slander-two torts or one?” (1975) 91 L.Q.R. 524.
78. Sim v. Stretch (1936) 52 T.L.R. 668, per Lord Atkin.
79. See Tolley v. Fry [1931] A.C. 333 and Charleston v. News Group Newspapers [1995] 2 A.C. 65. Contrast Ettingshausen v. Australian Consolidated Press (1991) 23 N.S.W.L.R. 443: nude photograph of rugby footballer libellous (an example of privacy distorting common law principles, according to D. Lindsay, in M. Colvin (ed.), Developing Key Privacy Rights (Oxford 2002)).
80. Cf. Pollard v. Photographic Co. (1886) 40 Ch.D. 345 (professional photographer employed to take plaintiff's portrait restrained from subsequently using her image on Christmas cards, on grounds of breach of contract and also his “gross breach of faith” in shocking the lady's feelings).
81. See the classic definition by Lord Diplock in Erven Warnink v. Townend [1979] A.C. 731.
82. Irvine v. Talksport [2002] EWHC (Ch.) 367, [2002] 1 W.L.R. 2355. Laddie J. stated that the right to one's image as such, whether at common law or under the H.R.A., was irrelevant to the case: paras. [44]-[45].
83. See Lord Bernstein v. Skyviews [1978] Q.B. 479, 489.
84. [1997] A.C. 655
85. [1991] F.S.R. 62. See P. Prescott Q.C., “Kaye v. Robertson. A Reply” (1991) 54 M.L.R. 451.
86. The situation in Kaye v. Robertson [1991] F.S.R. 62.
87. P.B.H. Birks, “Harassment and hubris, The right to an equality of respect” (1997) 32 Irish Jurist 1.
88. Rookes v. Barnard [1964] A.C. 1129; Cassell & Co. v. Broome [1972] A.C. 1027.
89. (1997) 32 Irish Jurist 1, 33.
90. The first of Lord Greene M.R.'s requirements in the leading case., at pp. 34-35.
91. [1991] F.S.R. 62. The plaintiff sought an injunction against publication of photographs and an “interview” which the defendant newspaper had gained through unauthorised access to his hospital room.
92. The first of Lord Greene M.R.'s requirements in the leading case., at p. 70. This proved prescient, for the paper in its next issue ran the story anyway, under the headline “PHOTOS HE TRIED TO BAN-Bedside shots taken without consent- Amazing sneak pictures”. This removed the (enjoined) innuendo that the plaintiff had consented to the interview. Sunday Sport, 4 March 1990.
93. [1993] Q.B. 727.
94. Hunter v. Canary Wharf [1997] A.C. 655.
95. [1986] Ch. 20.
96. Wong v. Parkside Health N.H.S. Trust [2001] EWCA Civ 1721. J. Conaghan and W. Mansell, The Wrongs of Tort (2nd edn. London 1999), p. 142.
97. H.R.A., s. 3.
98. Protection From Harassment Act 1997, s. 2 (up to six months’ imprisonment); s. 3.
99. The first of Lord Greene M.R.'s requirements in the leading case., s. 7(2).
100. Thomas v. Hughes [2001] EWCA Civ 1233, [2002] E.M.L.R. 78.
101. A defence in Protection From Harassment Act 1997, s. 1(3)(c).
102. Para. [34].
103. It was arguable that the defendant's conduct amounted to racial harassment, and that this was sufficiently “exceptional”.
104. Protection From Harassment Act 1997, s. 7(3). “Conduct” includes speech: s. 7(4).
105. The Wilkinson v. Downton tort may consist of a one-off distress-inducing action: [1897] 2 Q.B. 57. However, it would apparently require actual physical harm to be shown-like a stress-induced illness. See now Wainwright v. Home office [2001] EWCA Civ 2081, [2002] Q.B. 1334.
106. Lau v. D.P.P. [2000] Crim. L.R. 580, R. v. Hills [2001] Crim. L.R. 318.
107. Hills, above (the defendant had had consensual sexual intercourse with the complainant in the six months between the two incidents).
108. D. C. Ormerod, commentary on Hills, above, It was arguable that the defendant's conduct amounted to racial harassment, and that this was sufficiently “exceptional”.
109. Campbell v. M.G.N. [2002] EWCA Civ 1373, [2003] 2 W.L.R. 80, para. [72].
110. Data Protection Act 1998, Schedule 1, Part I, Para. 1(1). “Fairness” explicitly includes the way in which the data were obtained: Schedule 1, Part II, Para. 1(1).
111. commentary on Hills., Schedule 2, Para. 6(1). Note Para. 6(2): “The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to be satisfied”.
112. commentary on Hills., s. 2.
113. commentary on Hills., s. 10.
114. commentary on Hills., s. 13.
115. commentary on Hills., s. 32(1) and (2).
116. commentary on Hills., s. 32(4) and (5). For the determination, see s. 45(1). The then Data Protection Registrar criticised this provision as enabling delay for months or even years, possibly as a purely tactical manoeuvre: Briefing Paper, cited in I.J. Lloyd, A Guide to the Data Protection Act 1998 (London 1998), p. 85.
117. [2002] EWCACiv 1373, [2003] 2 W.L.R. 80 (noted D. Howarth [2003] C.L.J. 17).
118. See [2002] EWHC (QB) 499. Also, Lloyd commentary on Hills. para. 6.9.
119. [2002] EWCA Civ 1373, [2003] 2 W.L.R. 80, para. [120].
120. commentary on Hills., para. [129]. The court also said that Morland J.'s approach had opened a Pandora's Box, and if correct would mean that the Data Protection Act had created a law of privacy: paras. [92] and [94].
121. Bonnard v. Perryman [1891] 2 Ch. 269. It is, however, the case that s. 12, H.R.A. applies to awards of damages as well as to prior restraint: Douglas v. Hello! [2003] EWHC 786 (Ch.), para. [203].
122. [2003] 1 W.L.R. 740. It might also be noted, for the purposes of the following section, that Miss Campbell did not feel it worthwhile to complain to the Press Complaints Commission before launching her ground-breaking legal action against the Daily Mirror.
123. Thus, it is submitted, the court in the Anna Ford case should have gone considerably further than the “light touch review” which was adopted, especially given the concession, arguendo, that the P.C.C. was a public authority. For further discussion, M. Tugendhat Q.C. and I. Christie, The Law of Privacy and the Media (Oxford 2002) pp. 558-560.
124. (1998) 25 E.H.R.R. C.D. 105. See now Peck v. UK (Judgment of 28 January 2003), para. 109. For “effective remedy” see Article 13, ECHR.
125. The Calcutt Review of Press Self Regulation (H.M.S.O. 1993) and the National Heritage Committee (“Privacy and Media Intrusion”, H.C. 294, 1993) recommended that an independent body be set up. The Government rejected this (see Cm. 2918, 1995). But for a spirited defence of the P.C.C. by its then chairman, see Lord Wakeham, “Press, privacy, public interest and the Human Rights Act” (speech on 23 January 2002).
126. Broadcasting Act 1990, s. 7(1). A similar regime exists for the regulation of independent radio services by the Radio Authority: The Calcutt Review of Press Self Regulation., Part III.
127. I.T.C. Programme Code, s. 2.2 (April 2001).
128. Broadcasting Act 1990, ss. 40-42. The Radio Authority has similar powers: The Calcutt Review of Press Self Regulation., ss. 109-111.
129. Established by Broadcasting Act 1996, s. 106, replacing the Broadcasting Complaints Commission and the Broadcasting Standards Council.
130. See The Calcutt Review of Press Self Regulation., s. 119.
131. [2001] EWCA Civ 2081, [2002] Q.B. 1334. The fullest consideration of authorities is by Buxton L.J. at paras. [96]-[107].
132. The Calcutt Review of Press Self Regulation., para. [87].
133. It is accepted that all statutes, even those regulating private disputes, must be interpreted in line with the Convention so far as possible: H.R.A., s. 3. See, e.g. Ashdown v. Telegraph Group [2001] EWCACiv 1142, [2002] Ch. 149.
134. Sir H.W.R. Wade, “The UK's Bill of Rights”, in Cambridge University Centre of Public Law, Constitutional Reform in the UK: Practice and Principles (Oxford 1998), “Horizons of horizontality” (2000) 116 L.Q.R. 217, and Wade & Forsyth, Administrative Law (8th edn., Oxford 2000), p. 983. See J.E. Morgan, “Questioning the True Effect of the H.R.A”. [2002] L.S. 259. For the many other views, see n. 3, above.
135. Although this jurisprudence has been described as “incoherent and arbitrary”: see references in M. Colvin (ed.), Developing Key Privacy Rights (Hart: Oxford 2002), pp. 22-23.
136. As Lindsay J. observes: “The recent judgment in Peck -v- United Kingdom in the ECHR, given on the 28th January 2003, shows that in circumstances where the law of confidence did not operate our domestic law has already been held to be inadequate. That inadequacy will have to be made good and if Parliament does not step in then the Courts will be obliged to”. Douglas v. Hello! [2003] EWHC 786 (Ch.), para. [229(iii)].
137. For analysis, see I. Hare, “Private parties, privacy and the H.R.A.” [2001] E.H.R.L.R. 526. Douglas has been applied in Venables [2001] Fam. 430, Theakston [2002] EWHC (QB) 137, [2002] E.M.L.R. 398, A v. B [2002] EWCACiv 337, [2003] Q.B. 195.
138. [2001] Q.B. 967, 1001.
139. The Calcutt Review of Press Self Regulation., at p. 1002. On s. 6, see Sedley L.J. The Calcutt Review of Press Self Regulation., at p. 998: “the courts of this country must not only take into account jurisprudence of both the Commission and the European Court of Human Rights which points to a positive institutional obligation to respect privacy; they must themselves act compatibly with that and the other Convention rights. This. arguably gives the final impetus to the recognition of a right of privacy in English law”. (All emphasis added.)
140. The Calcutt Review of Press Self Regulation., at pp. 1011-1012.
141. The Calcutt Review of Press Self Regulation., at pp. 986-994.
142. See Lord Woolf C.J. in A v. B: “the court, as a public authority, is required not to act ‘in a way which is incompatible with a Convention right’. The court is able to achieve this by absorbing the rights which Articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles”. [2002] EWCA Civ 337, [2003] Q.B. 195, para. [4]. See also Theakston v. MGN [2002] EWHC (QB) 137, [2002] E.M.L.R. 398, para. [28], per Ouseley J.
143. See, likewise, Lord Scott, “Confidentiality” in J. Beatson and Y.M. Cripps (eds.), Freedom of Expression and Freedom of Information (Oxford 2000); J. Wright, Tort Law and Human Rights (Oxford 2001), pp. 178-182; R. Singh Q.C. and J. Strachan, “The right to privacy in English law” [2002] E.H.R.L.R. 129.
144. See, likewise, A v. B para. [11(vi)].
145. Section III B above, discussing P.B.H. Birks, “Harassment and hubris, The right to an equality of respect” (1997) 32 Irish Jurist 1.
146. Kaye v. Robertson [1991] F.S.R. 62 is the classic example. The protection was, however, less than complete-see above, Section III B. Semble there would today be a breach of confidence action: per Keene L.J. in Douglas [2001] Q.B. 967, 1012. Contrast the unrepentant views of Sir Thomas Bingham, “Should there be a law to protect rights of personal privacy?” [1996] E.H.R.L.R. 450, 457.
147. R. Bagshaw, “Obstacles on the Path to Privacy Torts” in P.B.H. Birks (ed.), Privacy and Loyalty (Oxford 1997). Some coherence has recently returned to the law on exemplary damages: Kuddus v. Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 A.C. 122, overruling A.B. v. South West Water [1993] Q.B. 507.
148. See e.g. Service Corpn. International v. Channel Four [1999] E.M.L.R. 83; M. Tugendhat Q.C. and I. Christie, The Law of Privacy and the Media (Oxford 2002) pp. 284-292; Cream Holdings v. Banerjee [2003] EWCACiv 103.
149. Lord Lester & D. Pannick, “The impact of the H.R.A. on private law: The knight's move” (2000) 116 L.Q.R. 380, 383 (emphasis added). They cite “promoting legal certainty” as the main advantage of the approach over direct application of the Convention.
150. Cited above, at n. 147.
151. [2001] Q.B. 967, 1012.