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Chapter 4 - Protection of privacy at common law -


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[142]

Introduction

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4.1 We have concluded in our consultation paper on stalking that existing law fails to provide adequate and effective remedies against stalking or harassment of individuals.[143] We examine in this chapter the more important issue of whether common law affords adequate protection against invasion of individual privacy.

4.2 The common law does not recognise a general right to privacy.[144] A person whose privacy has been intruded upon has to show that the conduct of the intruder amounts to the commission of a well-recognised tort for which the victim has a cause of action. The protection of individual privacy is therefore merely incidental to the granting of relief for recognised torts. If the privacy-invasive act inflicting the injury is otherwise lawful, it does not give rise to an action for damages even though the act is inflicted maliciously and has caused embarrassment or emotional distress. Another difficulty is that the common law does not recognise any principle upon which compensation can be granted for mere injury to feelings. The plaintiff cannot maintain an action in tort unless the breach has caused him physical harm or psychiatric illness. We examine below to what extent privacy interests are protected through the recognised heads of tortious liability.

[145]

Trespass to land

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4.3 The plaintiff has a cause of action in the tort of trespass to land when, without justification, the defendant enters on the plaintiff's land, remains on such land or places any object upon it. This tort can be used to protect the owner of premises from unjustified invasion of privacy if the invasion involves physical encroachment upon premises. This will be the case when the defendant installs a listening device inside the private premises of the plaintiff,[146] or when the defendant enters upon the plaintiff's premises to collect information without the plaintiff's consent. Hence entry onto premises by a television crew with cameras rolling will constitute trespass unless they have express or implied licence to enter. In Lincoln Hunt Australia Pty Ltd v Willesee, the court held that the implied licence for the public to visit commercial premises "was limited to members of the public bona fide seeking information or business with it or to clients of the firm, but not to people, for instance, who wished to enter to hold up the premises and rob them or even to people whose motives were to go onto the premises with video cameras and associated equipment or a reporter to harass the inhabitants by asking questions which would be televised throughout the State."[147] Yet even if the plaintiff could obtain an injunction against trespass, he may not be able to obtain an injunction against publication of photographs or films obtained during the course of the trespass.[148]

4.4 The law of trespass protects a person's property and his enjoyment of it. It does not exist to protect his privacy as such. If a person's property is adjacent to the highway and he owns the soil over which the highway goes, he may maintain an action of trespass against anyone who loiters on the highway in order to spy upon him.[149] But a person commits no trespass when he takes a sketch, photograph or video tape of someone else's property by standing on a public street or on adjoining property[150]- a person does not commit a tort merely by looking.[151] It is also clear that a court will not grant an injunction to prevent a landowner from opening windows which enables him to observe the activities of his neighbours.[152] In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor, Latham CJ held that-

"[any] person is entitled to look over the plaintiff's fences and to see what goes on in the plaintiff's land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. ... The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff's land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff's ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc, break a contract, or wrongfully reveal confidential information."[153]

4.5 Indeed a person has no right in law to prevent another taking a photograph of his picture even within his own premises. In Sports and General Press Agency Ltd v "Our Dogs" Publishing Co Ltd, the court refused to prevent the defendant publishing photographs taken at a dog show by an independent photographer. Horridge J held that "no one possesses a right of preventing another person photographing him any more than he has a right of preventing another person giving a description of him, provided the description is not libellous or otherwise wrongful."[154]

4.6 In Bernstein of Leigh (Baron) v Skyviews & General Ltd[155] the defendant took aerial photographs of the defendant's house without their consent and then offered the photographs for sale. The court did not grant an injunction restraining the defendant from entering his airspace. It held that a flight several hundred feet above his property did not interfere with his enjoyment of land, nor was the mere taking of a photograph without committing trespass on his land unlawful.[156] In the opinion of Griffiths J, there was no law against taking a photograph:

"the mere taking of a photograph cannot turn an act which is not a trespass into the plaintiff's air space into one that is a trespass. ... he could not prevent the defendants taking the virtually identical photograph from the adjoining land provided they took care not to cross his boundary, and were taking it for an innocent as opposed to a criminal purpose."[157]

4.7 The law of trespass is helpless where the surveillance is carried out from a distance. It does not protect individuals from eavesdropping with the aid of parabolic microphone where no wire-tapping or other physical intrusion upon plaintiff's property takes place. Likewise, it is not a trespass to listen in to another's telephone conversation as long as this does not involve physical encroachment upon the plaintiff's land.[158]

4.8 A further difficulty is that the law of trespass only protects plaintiffs who have a proprietary interest in land. A person who does not have any interest in land has no right to sue. The cause of action is of no avail to a guest or lodger. The Younger Report highlighted the difficulties faced by a person who is not in possession of the premises:

"the ordinary overnight visitor at an hotel may sleep in but does not `occupy' the bedroom allotted to him and hence has no remedy in trespass against the intruder who plants a microphone in the room; the hotel proprietor will have an action in trespass but he may be unwilling to bring it; indeed he may have put the microphone in the room himself or be in collusion with someone who did so."[159]

Private nuisance

4.9 The essence of the tort of private nuisance is "a condition or activity which unduly interferes with the use or enjoyment of land".[160] The interference must continue for a prolonged period of time. It may take the form of physical damage to the property or the imposition of discomfort upon the occupier.

4.10 The occupier may have a cause of action in private nuisance if he is harassed by telephone calls which cause him inconvenience and annoyance, thereby interfering with the ordinary and reasonable use of the property.[161] Likewise, watching and besetting premises may constitute a private nuisance.[162] However, the plaintiff could not maintain an action if the property suffers no physical injury or the beneficial use of the property was not interfered with. A person who has taken a single photograph of another can never be liable in nuisance. But Griffiths J said that:

"[if] the circumstances were such that a plaintiff was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity, I am far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief."[163]

4.11 Subject to the exception that a person who is in exclusive possession of land could sue even though he could not prove title to it, a person who has no interest in the land could not sue in private nuisance. Thus persons with no proprietary interest with whom the owners share their homes, such as wives, husbands, partners, children and other relatives could not sue. The action is developed to protect private property or rights of property rather than the privacy of individuals occupying private property.[164]

4.12 This cause of action is of limited use in the protection of privacy against surveillance activities. As rightly pointed out by the Younger Committee, "[the] eavesdropper or spy does not seek to change the behaviour of his victim; on the contrary he hopes that it will continue unchanged, so that he may have the opportunity of noting it unobserved."[165] There can be no interference with the use of property if the occupier was not aware of the intrusion at the time.

Breach of confidence

4.13 If A gives information concerning his private life to B on a confidential basis, a subsequent unauthorized disclosure by B to a third party would amount to a breach of his duty of confidence to A as well as an infringement of A's right of privacy. Hence, revelation of marital confidences[166] or sexual conduct of an individual[167] may be restrained through the equitable remedy of breach of confidence. There are three elements necessary to succeed in an action for breach of confidence:[168]

a) The information must have the necessary quality of confidence about it.

b) The information must have been imparted in circumstances importing an obligation of confidence.

c) There must be an unauthorized use of that information to the detriment of the party communicating it.

4.14 Where a person uses a photograph without the consent of the subject, the latter has a remedy in the law of confidence if the person using the photograph owes the subject an obligation of confidence.[169] In Li Yau-wai, Eric v Genesis Films Ltd[170] the plaintiff allowed himself to be photographed by the defendant on the understanding that the photograph was to be used for casting purposes. The court held that revealing the photograph to a wider audience thus making him a public figure would amount to a breach of confidence.

4.15 There are signs that the action for breach of confidence may be developed to afford protection to individual privacy. Lord Keith in the "Spycatcher" case stated:

"Most of the cases [of breach of confidence] have arisen in circumstances where there has been a threatened or actual breach of confidence by an employee or ex-employee of the plaintiff, or where information about the plaintiff's business affairs has been given to someone who has proceeded to exploit it for his own benefit. ... In other cases there may be no financial detriment to the confider, since the breach of confidence involves no more than an invasion of personal privacy. Thus in Duchess of Argyll v Duke of Argyll[171] an injunction was granted against the revelation of marital confidences. The right to personal privacy is clearly one which the law should in this field seek to protect."[172]

4.16 The Annex of this Paper contains an account of the extent to which the law of confidence may afford protection against unauthorized disclosure of personal information obtained by illegal means. The topic of breach of confidence will be examined in detail in a separate report to be issued by the Law Reform Commission.

4.17 The breach of confidence action is helpful only if confidential information is disclosed or otherwise used by the confidant without authority. Whereas the law of privacy protects unauthorized disclosure of personal information regardless of there being any relationship or duty of confidence, the law on breach of confidence protects information which is imparted in confidence regardless of the offensiveness of its content. The remedy aims at preserving the trust which the plaintiff has reposed in the confidant. It does not aim at protecting individuals from emotional distress and embarrassment caused by an unauthorized use.

4.18 The person who is able to sue for breach of confidence is the one who initially gave the information in confidence, or on whose behalf the information was received. The mere fact that a person has an interest in maintaining the secrecy of the information does not of itself give him a right to sue. The law of confidence does not impose an obligation of confidence by reason only of the use of unlawful or improper means to obtain the information.[173] In the absence of any special relationship of confidence between the person who wishes to keep the information secret and the person who has obtained the information, an unauthorized disclosure of information obtained by the latter would seem not to constitute a breach of confidence. Hence, if A imparts information about B in confidence to C, B cannot maintain an action for breach of confidence if C publishes the information without A's authority. This will be the case even though the publication is objectionable and offensive.

4.19 Furthermore, a person who acquires personal information without actual or constructive knowledge of its confidential character may disclose or use the information even though it is in fact subject to an obligation of confidence. The action is therefore not normally available to those who suffer because of unwanted publicity.

Infringement of copyright

4.20 There is an infringement of copyright if a person copies or publishes a private letter or family photograph the copyright of which is owned by another.[174] There are, however, limitations to protecting privacy under the law of copyright. An action for infringement of copyright is only actionable at the suit of the owner of the copyright. A person whose photograph has been taken by another person cannot bring an action for infringement of copyright if the photograph is reproduced or published by that other person without his authority. The only exception is that the person whose privacy has been invaded is also the person who has commissioned the work and such reproduction or publication constitutes "exploitation" of the commissioned work "for any purpose against which he could reasonably take objection".[175] In cases where the publication of a private photograph in magazine or newspaper amounts to an invasion of privacy, the photograph is rarely a commissioned work. Furthermore, there is no copyright in a person's name, likeness or image; nor is there any copyright in information as such. Thus a person may read a private letter and then reproduce the information contained in the letter in his own words without infringing the copyright of the author of the letter.

4.21 In Oriental Press Group Ltd v Apple Daily Ltd,[176] the plaintiff took a photograph of a popular entertainer Faye Wong without her consent in the baggage claim area of an airport in Beijing. Godfrey JA, delivering the judgment of the Court of Appeal, noted that: "Public sentiment has turned, or seems to be turning, against those who are guilty of invasion of the privacy of public figures by taking their photographs on private occasions without their consent and then selling those photographs for large sums which reflect the cupidity of the publishers and the prurience of their readers." He suggested that the court may have to hold that the protection of copyright will not be extended to photographs of public figures taken on private occasions without their consent if the legislature fails to introduce measures to protect the privacy of public figures.[177]

Breach of contract

4.22 A contract may expressly or impliedly restrict the use or disclosure of personal information furnished by a party to the contract. In Pollard v Photographic Company,[178] a photographer was restrained from using the plaintiff's photograph for advertising purposes. The court held that it was an implied term of the contract that prints taken from the negative of photographs taken at the defendant's shop were not to be used for an unauthorized purpose. It is open to the person who has been surreptitiously photographed by hotel staff when staying at a room in a hotel that it is an implied term of the contract with the hotel that the room is free from surveillance by his staff.[179]

Intentional infliction of emotional distress

4.23 A person who by extreme and outrageous conduct causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it. The action for intentional infliction of emotional distress is based on the principle laid down in Wilkinson v Downton. The plaintiff in this case became ill as a result of being frightened by false news about her husband, which she had been told by the defendant as a practical joke. Wright J said:

"The defendant has wilfully done an act calculated to cause harm to the plaintiff - that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act." 180

4.24 The Australian court in Bradley v Wingnut Films Ltd held that the action requires a plaintiff to establish something more than a transient reaction of emotional distress, however initially severe. That reaction must translate into something physical which also had a duration which was more than merely transient. Furthermore, the plaintiff must show that the defendant had wilfully done an act calculated to cause physical harm to the plaintiff and that the shock and illness were natural consequences of the wrongful act.[181] A person who deliberately intrudes on a woman in her bath, causing her psychiatric illness, might be liable under this head.[182] But mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury or psychiatric illness, is not a basis for a claim for damages.[183]

4.25 The action would not assist the individual aggrieved by an invasion of privacy in the majority of cases. Although the surreptitious use of a recording device in a person's premises and the publication of the details of his private life may cause him embarrassment or annoyance, it is only in extreme circumstances that physical or mental harm would ensue. Another difficulty is that the individual aggrieved by an invasion of privacy is rarely able to prove that the wrongful conduct was calculated to cause him physical harm or psychiatric illness; he is normally able to show that it is negligent at most.

Defamation

4.26 Defamation consists in the publication of a false statement which tends to damage the reputation of another without lawful justification. It might, for example, be libellous if the defendant took a photograph of a person who wished to be let alone and published a photograph of him in fancy costume.[184] The plaintiff in the following circumstances was found to have a cause of action in defamation: a dental advertisement showing a picture of a young actress as if she had no teeth;[185] a photograph in a newspaper of a person on a hot day, with a caption implying that his feet would smell so badly at the end of the day that they would need to be soaked in the defendant's disinfectant;[186] an advertisement showing the face of the plaintiff, who did not seek publicity, mounted upon the body of a man dressed in a foppish manner, carrying a cane and eye-glass.[187]

4.27 The primary purpose of defamation is to protect an individual's reputation. It fails to afford a remedy where the offending statement or representation is true.[188] However, the object of the law of privacy is not "to prevent inaccurate portrayal of private life, but to prevent its being depicted at all".[189] The law of defamation is therefore marginally relevant to the protection of individual privacy. It is true that the individual may be portrayed in a favourable light. But this fact of itself should not preclude him from seeking recovery if the matter publicised is offensive and objectionable to a reasonable person. In the "Spycatcher" case which involved a breach of confidence, Lord Keith observed that:[190]

"Information about a person's private and personal affairs may be of a nature which shows him up in a favourable light and would by no means expose him to criticism. The anonymous donor of a very large sum to a very worthy cause has his own reasons for wishing to remain anonymous, which are unlikely to be discreditable. He should surely be in a position to restrain disclosure in breach of confidence of his identity in connection with the donation. So I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to a person whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way."

We think that the same principles should also apply to privacy actions.

Malicious falsehood

4.28 The court in Ratcliffe v Evans held that an action would lie for "written or oral falsehoods, not actionable per se, or even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage".[191] The plaintiff is required to prove that the statements complained of were untrue, they were made maliciously, and that the plaintiff has suffered special damage as a result.[192] The Younger Report gave the example of the malicious publication in a newspaper to the effect that X, a famous pop-singer, had commenced his noviciate with a closed order of monks. The publication would not lower him in the esteem of right-thinking people, but would lose him engagements and therefore income, and therefore be actionable at his suit.[193] The tort has been developed to protect commercial interests.[194] An action for malicious falsehood would not avail the person whose personal information is accurately published in the newspaper.

Kaye v Robertson

4.29 One of the best cases to illustrate the failure of the common law to protect individual privacy is Gorden Kaye v Andrew Robertson and Sport Newspapers Ltd.[195] Mr Kaye was a well-known actor. He suffered severe injuries to his brain and was hospitalised in a private room which had a notice asking visitors to see a member of the staff before visiting. The defendant journalists ignored the notice and entered the room. Although Mr Kaye apparently agreed to talk to them and did not object to them taking photographs inside the room, it was confirmed at the trial that he was in no fit condition to be interviewed or to give any informed consent to be interviewed.

4.30 The court held that in English law there was no right to privacy and accordingly there was no right of action for breach of a person's privacy. Invasion of a person's privacy, however gross, did not of itself entitle him to relief in English law. Glidewell LJ said that the facts of the case were a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision could be made to protect the privacy of individuals. In the absence of a right of privacy, the plaintiff relied on the following causes of action: (a) trespass to the person; (b) passing off; (c) libel; and (d) malicious falsehood.

(a) Trespass to the person - The court did not accept the argument that the taking of a photograph or, indeed, the flashing of a light amounted to a battery. In any event, an injunction would not be granted to prevent the defendant from profiting from the taking of the photographs, i.e. from their own trespass.

(b) Passing off - The plaintiff failed under this head because he was not in the position of a trader in relation to his interest in his story about the accident and his recovery.[196]

(c) Libel - The plaintiff argued that the article written by the defendant implied that the plaintiff consented to giving the interview and to be photographed by the defendant. The representation was untrue and the implication in the article would have the effect of lowering him in the esteem of right-thinking people. The court held that although the article was capable of having a defamatory meaning, this was not a sufficient basis for granting an interlocutory injunction because the conclusion that the article was libellous was not inevitable.

(d) Malicious falsehood - The tort of malicious falsehood consists in the defendant maliciously publishing statements about the plaintiff which are false, and the plaintiff suffering special damage as a result. Since what was written in the article was false and it was apparent to the defendant that the plaintiff was in no condition to give informed consent, and that the plaintiff's right to sell the story of this accident and his recovery would be seriously diminished if the defendant was able to publish their article, the court agreed to grant an injunction on this cause of action.

4.31 The injunction granted on the basis of malicious falsehood was narrower in scope than what was sought by the plaintiff. It afforded limited protection because the defendant was still allowed to publish the photographs and story as long as the paper made it clear that they were taken without the plaintiff's consent.

Concluding remarks

4.32 Since the courts do not recognise a right of privacy, the interest in privacy has been protected only if another interest of an individual which is recognised by the courts has also been violated. Although some of the existing causes of action may incidentally afford some protection of privacy interests, their primary focus has been the protection of an individual's interest in his property. By insisting upon proof of actual harm beyond insult or hurt feelings, the courts have rendered "most of the old common law torts irrelevant to protecting the intimate interests that may be at stake in defence of individual privacy."[197] As privacy interests are much wider in scope than the interests recognised by the existing torts, protection of privacy by common law is not only patchy but also partial and less than adequate. Bingham LJ cited with approval the following comment made by Basil Markesinis:

"English law, on the whole, compares unfavourably with German law. True, many aspects of the human personality and privacy are protected by a multitude of existing torts but this means fitting the facts of each case in the pigeon-hole of an existing tort and this process may not only involve strained constructions; often it may also leave a deserving plaintiff without a remedy".[198]

4.33 Contrary to the position in England, the right of privacy is protected by the law of torts in most jurisdictions in the United States. In the American case of Barber v Time Inc,[199] the defendant was held liable for invasion of privacy on the basis that it had published a photograph of the plaintiff which was taken while she was confined to a hospital bed. After referring to the law of privacy in the United States, Leggatt LJ made the following observation in the case of Kaye v Robertson:

"We do not need a First Amendment to preserve the freedom of the press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy. This right has so long been disregarded here that it can be recognised now only by the legislature. Especially since there is available in the United States a wealth of experience of the enforcement of this right both at common law and also under statute, it is to be hoped that the making good of this signal shortcoming in our law will not be long delayed."[200]

4.34 We conclude that the protection of privacy interests should not be confined to "parasitic damages" arising out of defamation and injury to contractual or proprietary rights.[201] Apart from the United States, the law of many countries, including both civil and common law jurisdictions, recognise the right of privacy in one way or another. We explore this "wealth of experience" in some detail in the next chapter.

[142] See D J Seipp, "English Judicial Recognition of a Right to Privacy" (1983) 3 Oxford J of Legal Studies 325; R Wacks, Privacy and Press Freedom (London: Blackstone Press, 1995), chapter 3; Younger Report, Appendix I; Lord Chancellor's Department and the Scottish Office, Infringement of Privacy: Consultation Paper (1993), Annex A; HKLRC, Report on Reform of the Law Relating to the Protection of Personal Data (1994), chapter 4.

[143] See HKLRC Privacy sub-committee, Stalking - Consultation Paper (1998), chapter 2.

[144] Kaye v Robertson [1991] FSR 62; Malone v MPC [1979] Ch 344.

[145] An interesting development is the application of the tort of trespass to unsolicited e-mail. In CompuServe Inc v Cyber Promotions Inc 1997 US Dist LEXIS (SD Ohio 1997), the US District Court granted the plaintiff an interlocutory injunction to restrain the defendant from sending unsolicited e-mail to the plaintiff's subscribers. The court held that the defendant's e-mailings constituted trespass to personal property because the e-mailings burdened the operation of the plaintiff's network and damaged their goodwill.

[146] Sheen v Clegg, (1967) Daily Telegraph, 22 June; Greig v Greig [1966] VR 376.

[147] (1986) 4 NSWLR 457, at 460. In Le Mistral Inc v Columbia Broadcasting System 402 NYS 2d 815 (1978), the court held that a trespass was committed when a television station sent a team unannounced to the plaintiff's restaurant to highlight a story about unhealthy restaurant.

[148] Gorden Kaye v Andrew Robertson & Sport Newspapers Ltd [1991] FSR 62. In R v Central Independent Television plc [1994] 3 WLR 20, the defendant obtained some footage of an arrest of an alleged paedophile which took place on private property. Although the issue of trespass was not before the court, Neill LJ suggested at p 29 that the defendant was "entitled to publish the programme in full, and ... there was no legal bar to prevent them from including pictures of the place of arrest". Cf Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qld R 169. The court granted an injunction on the grounds that the audio-visual material obtained by the defendants were obtained in flagrant disregard of the plaintiff's property rights and at a time when the defendants were trespassing.

[149] Harrison v Duke of Rutland [1893] 1 QB 142. Cf P H Winfield, Privacy (1931) 47 LQR 23.

[150] Hickman v Maisey [1900] 1 QB 752; Re Penny (1867) 7 E & B 660.

[151] Lord Camden in Entick v Carrington (1765) 19 Howell State Tr 1029 said at 1066 that "the eye cannot by the laws of England be guilty of a trespass."

[152] Turner v Spooner (1861) 30 L J Ch 801. The court in Tapling v Jones (1865) 11 HLC 290, at 305 held that "invasion of privacy by opening windows" was not a wrong for which the law would give a remedy. Lord Westbury C. said, "If A is the owner of beautiful gardens and pleasure grounds, and B is the owner of an adjoining piece of land, B may build on it a manufactory with a hundred windows overlooking the pleasure grounds, and A has neither more nor less than the right, which he previously had, of erecting on his land a building of such height and extent as will shut out the windows of the newly erected manufactory."

[153] (1937) 58 CLR 479, at 494. Cf Sports and General Press Agency Ltd v "Our Dogs" Publishing Co Ltd [1917] 2 KB 125; Bathurst City Council v Saban (1985) 2 NSWLR 704. A further exception to the rule that there is no tortious conduct involved in taking a photograph of another person's property without his consent is the publication of photographs of a ward of court: Re X (A Minor) (Wardship: Injunction) [1985] 1 All ER 53.

[154] [1916] 2 KB 880; affirmed by the Court of Appeal in [1917] 2 KB 125. The landowner may prohibit the taking of photos in his premises by making it a condition of entry.

[155] [1978] QB 479.

[156] Section 8(1) of the Civil Aviation Ordinance (Cap 448) provides that no action shall lie in respect of trespass or nuisance by reason only of the flight of an "aircraft" over any property at a reasonable height above the ground. "Aircraft" is widely defined in Cap 1.

[157] At 488.

[158] Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at 642-644.

[159] Younger Report, Appendix I, para 13. Cf Silverman v Imperial London Hotels Ltd (1927) 43 TLR 260.

[160] Clerk & Lindsell on Torts, (16th edn, 1989), para 24-01. A public nuisance is a criminal offence. It is an act or omission which materially affects the reasonable comfort and convenience of life of a section of the public. In R v Johnson (Anthony) [1997] 1 WLR 367, the defendant made numerous obscene telephone calls to at least 13 different women. The Court of Appeal held that in determining whether conduct constituted a public nuisance it was necessary to consider its cumulative effect. If cumulatively the telephone calls had materially affected the reasonable comfort and convenience of a section of the public, and had been so widespread in range and indiscriminate in effect that it was not reasonable to expect one person to take proceedings on her own responsibility, the person making such calls may be charged with the offence of causing a public nuisance by using the telephone system to cause annoyance, harassment, alarm and distress.

[161] Khorasandjian v Bush [1993] QB 727; Stoakes v Brydges [1958] QWN 5; Motherwell v Motherwell (1977) 73 DLR (3d) 62.

[162] Hubbard v Pitt [1976] 1 QB 142.

[163] Bernstein (Baron) v Skyviews Ltd. [1978]1 QB 479, at 489. Wacks argues that it is hard to see how the aerial photography of a stately home invades its owner's "privacy". See R Wacks, "No Castles in the Air" (1977) 93 LQR 491.

[164] Hunter v Canary Wharf Ltd, The Times, 25 April 1997; overruling the Court of Appeal decision in Khorasandjian v Bush [1993] QB 727. Cf Motherwell v Motherwell (1977) 73 DLR (3d) 62.

[165] Younger Report, Appendix I, para 18.

[166] Stephens v Avery [1988] 1 Ch 449. The information in question was about the lesbian relationship of the plaintiff with a third party.

[167] Duchess of Argyll v Duke of Argyll [1967] 1 Ch 302.

[168] Koo Chih Ling (Linda) v Lam Tai Hing [1994] 1 HKLR 329; Li Yau-wai, Eric v Genesis Films Ltd [1987] HKLR 711. For a discussion of the latest development of the law relating to breach of confidence, see R Wacks, Privacy and Press Freedom (London: Blackstone Press, 1995), chapter 3 (pp 48-80). The chapter contains a comparison between the tort of breach of confidence and the American tort of "public disclosure of private facts".

[169] Pollard v Photographic Co (1889) 40 Ch D 345; Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473.

[170] [1987] HKLR 711.

[171] [1967] Ch. 302.

[172] Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 255. Laws J in Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 said: "If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might be reasonably called a right of privacy, although the name accorded to the cause of action would be breach of confidence."

[173] In Malone v Metropolitan Police Commissioner (No 2) [1979] 1 Ch 344, Megarry VC held that a person who overheard a telephone conversation, whether by means of tapping or otherwise, was not under an obligation of confidence to the parties to the conversation. However, an Australian court has held that a person who used trade secrets acquired by improper covert means could be held liable for breach of confidence even though there was no relationship of confidence between the parties: Franklin v Giddings [1978] Qd R 72 (SC, Queensland). Indeed Browne-Wilkinson VC has also suggested in Stephens v Avery [1988] 1 Ch 449 at 456 that an injunction may be granted to protect confidentiality on the ground that "it is unconscionable for a person who has received information on the basis that it is confidential subsequently to reveal that information." It is therefore arguable that a relationship of confidence is not a necessary element of a breach of confidence action and that an unauthorized disclosure of personal information obtained by unlawful or improper means is actionable at the suit of the individual concerned. See Wacks, Privacy and Press Freedom, 59-64.

[174] An author also has two "moral rights" under the Copyright Ordinance (Cap 528), namely, the right to be identified as the author (section 89) and the right to object to derogatory treatment of his work (section 92). The Ordinance does not provide for a right not to have copies issued to the public, exhibited or shown in public, or broadcast or included in a cable programme service. Cf Copyright, Designs and Patents Act 1988 (UK), section 85.

[175] Under section 15 of the Copyright Ordinance (Cap 528), the person who commissions a work has the power to restrain "any exploitation of the commissioned work for any purpose against which he could reasonably take objection."

[176] [1997] 2 HKC 525.

[177] Godfrey JA based his opinion on the public policy grounds that no copyright can subsist in matters which have a grossly immoral tendency. See Stockdale v Ownlyn (1826) 5 B & C 173; Stephens v Avery [1988] Ch 449. He reasoned that if other newspapers or periodicals could re-publish without fee a photograph of a public figure which was taken surreptitiously without his consent, no newspaper or periodical would pay a large sum for such photographs. This would go some way towards reducing the incidence of invasion of privacy by taking photographs against the wishes of the subject.

[178] (1889) 40 Ch D 345.

[179] The Princess of Wales was surreptitiously photographed when practising in a gymnasium. The photographs were taken by the owner of the gymnasium and sold to a newspaper for publication. She might have an action against the owner for breach of contract. The Times, 9 Feb 1995.

180 Wilkinson v Downton [1897] 2 QB 57, 59; Janvier v Sweeney [1919] 2 KB 316, 322.

[181] Bradley v Wingnut Films Ltd [1993] 1 NZLR 415. In Burnett v. George [1992] 1 FLR 525, the court held that the plaintiff may succeed in obtaining an injunction restraining harassment by telephone calls only if there was evidence that the health of the plaintiff was being impaired by molestation or interference calculated to cause such impairment.

[182] Example given in Younger Report, Annex I, para 23.

[183] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310; Khorasandjian v Bush [1993] 3 WLR 476, 482H-483A.

[184] Monckton v Ralph Dunn [1907] The Times, 30 January.

[185] Funston v Pearson [1915] The Times, 12 March.

[186] Plumb v Jeyes Sanitary Compounds Co Ltd [1937] The Times, 15 April.

[187] Dunlop Rubber Co Ltd v Dunlop [1921] AC 347.

[188] "Unless a man's photograph, caricature or name be published in such a context that the publication can be defamatory within the law of libel, it cannot be made the subject-matter of complaint by action at law." Tolley v Fry [1930] 1 KB 467, 468 per Greer LJ.

[189] Warren and Brandeis, 218.

[190] Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 255.

[191] [1892] 2 QB 524, 532.

[192] See Defamation Ordinance (Cap 21), section 24.

[193] Younger Report, Annex I, para 8.

[194] Examples are actions for "slander of title" and "slander of goods".

[195] [1991] FSR 62; B S Markesinis, "Our Patchy Law of Privacy - Time to do Something about it" (1990) 53 MLR 802; P Prescott, "Kaye v Robertson - a reply" (1991) 54 MLR 451.

[196] Markesinis argues that the tort of passing off may be extended by relying on Sim v Heinz [1959] 1 WLR 313. See B S Markesinis, "Our Patchy Law of Privacy - Time to do Something about it" (1990) 53 MLR 802, at 803.

[197] Law Reform Commission of Australia, Privacy and Intrusions (Discussion Paper No 13, 1980), 24 - 25.

[198] B S Markesinis, The German Law of Torts (Oxford: Clarendon Press, 2nd edn, 1990), 316; cited in Kaye v Robertson, at 70.

[199] (1942) 348 Mo 1199, 159 SW2d 291.

[200] Kaye v Robertson, at 71.

[201] G Dworkin, "Privacy and the Press" (1961) 24 MLR 185, 187.


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