Article Story: PRIVACY - ARTICLE 8.  WHO NEEDS IT?

Date: 01/8/2001

THE HUMAN RIGHTS ACT

Since the arrival in the law of this country in October last year of Article 8 of the European Convention on Human Rights in the form of the Human Rights Act, there has been much speculation in the trade and lay press about its potential impact on the law of this country.  Just in case the terms of Article 8 are not indelibly imprinted on your mind, here they are :

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

During the course of the Parliamentary debates on the Human Rights Bill, Lord Irvine LC commented: 'I believe that the true view is that the courts will be able to adapt and develop the common law by relying on existing domestic principles in the laws of trespass, nuisance, copyright, confidence and the like to fashion a common law right of privacy.'

The jurisprudence of the ECHR indicates that 'private and family life should be interpreted broadly to protect the privacy of the individual concerning his sexual relations, orientation and identity.'  The right to be yourself, and live as such, free from interference (at least by the state) in our private lives, is a hard right for the courts to protect, since it is so vague.  But European experience suggests that it will be attempted nonetheless, and the European Court of Human Rights jurisprudence also establishes that the state will be subject to positive as well as negative obligations.  It means that not only must public authorities not disclose private information, but they must also not make laws which invade the privacy of the individual.  Whether the Human Rights Act introduces a law of privacy is still a matter of debate.  There is evidently a growing judicial view that it has.  However, on the face of it, it will not cover media intrusion into the private lives of individuals (although some have argued to the contrary), and that is the subject which this paper addresses.

The UK courts responded initially to their Article 8 obligations by further developing the law of confidence.  This led inevitably to the adoption by the courts of a right of privacy which is not delimited to the requirements of the law of confidence.  Doubtless in the future, it will look to the European (and possibly the United States) jurisdictions for guidance.

The European Court of Human Rights appears to have decided that there is already adequate protection for privacy in this country.  Two ECHR decisions have held that complaints of media intrusion into the private lives of individuals were inadmissible because the remedies provided by English Law were adequate (Winer v United Kingdom [1986] 25 EHRR CD 154 and Earl Spencer and Countess Spencer v United Kingdom [1998] 25 EHRR CD 105).

The analysis attempted in this article supports that view; hence the title.  The first purpose of this article is then to review the present state of the UK law to see what protection it historically gave to the individual who sought to protect his or her privacy.  This case law in turn should provide the basis for future developments for which the introduction of Article 8 has already proved a catalyst.

The second purpose of this article is to set out the recent case law which has very much moved this area of law on, with Article 8 providing the guiding principle.

The third purpose of the Article is to examine what of the pre-Article 8 authorities can be cited in support of claims for damages in this new area of law.

CONFIDENCE & PRIVACY – THE OLD LAW

The Law of Confidence

The three elements required for a successful action for breach of confidence were set out by McGarry J in Coco v A.N. Clark (Engineering) [1969] RPC 41, 47, who said that the information must '[firstly] have the necessary quality of confidence about it. Secondly, that information must have been communicated in circumstances importing an obligation of confidence. Thirdly, there must be unauthorised use of the information to the detriment of the party communicating it.'

It is a moot point whether the element of detriment is necessary, and the better view is that it is not.  If it is, then I believe it should be presumed in favour of the claimant, rather as damage is presumed in favour of the claimant in libel.

Some of the types of information which the courts have considered bear the necessary quality of confidence include: Unpublished etchings and photographs: Prince Albert v Strange (1849) 1 Mac & G 25 and Pollard v Photographic Co (1888) 40 Ch D 345; Marital confidences: Duchess of v Duke of Argyll [1967] Ch 302; Details of a lesbian relationship: Stephens v Avery [1988] 1 Ch 449.

One of the hurdles which will need to be removed, or at least lowered, to allow a fully fledged right of privacy, is the stipulation in the law of confidence that the information concerned must have been imparted or received by the defendant in circumstances where it is clearly intended to be confidential.  However, Megarry J said in Coco v Clark at 48:

'It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.'

Notice that information which is confidential sufficient to establish an obligation of confidence may be given in a wide variety of ways.  Information obtained (such as a photograph taken) by a person after entering private property without permission will be treated as having been received in confidence, particularly where there are signs indicating that entry is not permitted: Shelley Films v Rex Features [1994] EMLR 134.  Restrictions on access to an otherwise public area may constitute notice that the information it contains is confidential: Creation Records v News Group Newspapers [1997] EMLR 444.

Telephone conversations are confidential and an unauthorised tapper will be fixed with an obligation of confidence: Francome v Mirror Group Newspapers [1984] 2 All ER 408.  Where confidential information is obtained by a trick (Lord Ashburton v Pape [1913] 2 Ch 469) or received by mistake (English & American Insurance v Herbert Smith [1988] FSR 232) the recipient will be bound by a duty of confidence.  Swinfen Eady LJ said in Lord Ashburton v Pape:

'The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.'

However Laws J moved matters on considerably in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804, 807 when he made the following obiter observation :

'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 found or stolen a diary in which the act was recounted and proceeded to publish it.'

Our European colleagues would unhesitatingly identify the proposition put forward by Laws J as an attempt to protect the privacy of an individual.  Bound, doubtless, by the shackles of our historical disaffinity with a broad protection of privacy in English jurisprudence, and respecting the gentle pace at which the common law normally proceeds, Laws J based his sage and appropriate concern to protect victims of the telephoto lens on the well-established terms of the law of confidence.  What then has been the attitude of the judiciary to the proposition that it should protect the privacy of the individual whether or not that protection falls within the limited (though burgeoning) terms of the law of confidence?

The noes – there never was a right of Privacy

The existence of a right of privacy under United Kingdom law was in effect rejected in Kaye v Robertson [1991] FSR 62, 66; although, importantly, breach of confidence was not argued in that case:

'It is well known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy' (Glidewell LJ)

Bingham LJ observed at p 70:

'This case ... highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens... If ever a person has a right to be let alone by strangers with no public interest to pursue, it must surely be when he lies in hospital recovering from brain surgery and in no more than partial command of his faculties.  It is this invasion of his privacy which underlies the plaintiff's complaint.  Yet it alone, however gross, does not entitle him to relief in English law.'

Lord Nicholls of Birkenhead observed in R v Khan [1997] AC 558, 583-3:

'... the appellant contended for a right of privacy in respect of private conversations in private houses.  I prefer to express no view, either way, on the existence of such a right.  This right, if it exists, can only do so as part of a larger and wider right of privacy.  The difficulties attendant on this controversial subject are well known. Equally well known is the continuing, widespread concern at the apparent failure of the law to give individuals a reasonable degree of protection from unwarranted intrusion in many situations.  I prefer to leave open for another occasion the important question of whether the present, piecemeal protection of privacy has now developed to the extent that a more comprehensive principle can be seen to exist.'

The ayes – we always had one

Since, according to these judgments, Gordon Kaye did not appear to have a basic right of privacy that the court could protect when photographed in his hospital bed, the problems identified by Leggatt LJ in Kaye v Robertson [1991] F.S.R. 62 have served as something of a clarion call to the craftsmen of the common law (although, perhaps surprisingly, breach of confidence was not pleaded in Kaye).  However the concept that a British citizen enjoys some right of privacy goes back further in the common law than you might think.

Although the issue before the court was one of trespass, some of the Law Lords in Morris v Beardmore ([1980] 2 All ER 753) recognised at least a species of a right of privacy in the British Citizen to privacy over 20 years ago.  Edmund-Davies LJ quoted Cumming-Bruce LJ (at first instance) as follows:

'Nothing that has fallen from me should be interpreted to suggest that it is the view of this court that, if in the case of pursuit of suspected person, or pursuit of a person who is reasonably suspected by the Police of being an appropriate subject to a breathalyser test, the Police do infringe the strict rights of privacy of the subject, such infringement is necessarily to be regarded as oppressive.'

Edmund-Davies LJ went on to conclude that to reject the appeal before him 'would entitle a constable who, in deliberate violation of a householder's rights, forcibly invades his privacy ...'.

Lord Keith recognised that the statutory provision at issue 'authorised serious invasions of an individual citizen's right to liberty and personal privacy ...' He went on to say: 'There are no grounds for extending the scope of the invasion of privacy authorised by [that section] beyond the strict terms of what is enacted.'

Lord Scarman gave us one of his reasons for allowing the appeal as follows:

'I have described the right of privacy as 'fundamental'.  I do so for two reasons.  The first is apt to describe the importance attached by common law to the privacy of the home ... second, the writer enjoys the protection of the European Convention for the Protection of Human Rights and Fundamental Freedoms ... which the United Kingdom has ratified and under which the United Kingdom permits to those within its jurisdiction the individual right of petition: see Arts. 8 and 25.'

Lord Roskill commented as follows:

'My Lords, the appellant's submissions rest on an attractive foundation, namely, the right of the ordinary citizen not to have his property, and thus his privacy, invaded against his will, save where such invasion is directly authorised by law.'

An attempt was made in Khorasandjian v Bush [1993] QB 276 by the Court of Appeal to develop private nuisance to in effect provide a limited protection against harassment.  There has also been extra judicial encouragement from no less than the Lord Chief Justice, who in an influential speech said:

'Should there be a law to protect rights of personal privacy?  To a very large extent the law already does protect personal privacy, but to the extent that it does not, it should.  The right must be narrowly drawn, to give full effect to the right of free speech and the public's right to know.  It should strike only at significant infringements, such as would cause substantial distress to an ordinary phlegmatic person.  My preference would be for legislation, which would mean that the rules which the court applied would carry the imprimatur of democratic approval. But if, for whatever reason, legislation is not forthcoming, I think it almost inevitable that cases will arise in the courts in which the need to give relief is obvious and pressing; and when such cases do arise, I do not think the courts will be found wanting.'

The foundation of an English law of privacy might be said to have been laid in the Judgment of Lord Keith in Attorney General v Guardian Newspapers [1990] 1 AC 109 at 255; Lord Keith said that:

'Breach of Confidence involves no more than an invasion of privacy.'

A NEW LAW OF PRIVACY?

Douglas & Others v Hello!

The most recent high profile cases have gone a long way to recognizing a right to privacy in English law concerned injunctions sought against the media to protect privacy.  However, the circumstances which gave rise to the actions could hardly be more different.  In Douglas and Others v Hello! Limited [2001] EMLR 9 Michael Douglas and Catherine Zeta-Jones sought to protect their privacy by preventing publication of unauthorized photographs of their wedding.  In that case the interim injunctions were refused on the 'balance of convenience' test.

The Court of Appeal accepted that the courts must now take into account the right to respect for private and family life under Article 8 when interpreting the common law and the law of confidence, and accordingly protect the privacy of the individual.  The court drew back from recognizing a full blown right to privacy because it felt able to provide sufficient protection by means of the law of confidence.  Lord Justice Brooke said:

'I do not consider their privacy-based case, as distinct from their confidentiality-based case adds very much.'

However, Sedley LJ considered that it was powerfully arguable that there was now a right of privacy in English law, observing some of the antecedents of the case which I have set out above.

It seems then that the safest way to frame claims for invasion of privacy is still to characterize them at least in the alternative as a breach of confidence.  The effect is that the element previously required in the law of confidence that the information was imparted in circumstances of confidence has now fallen away.  A confidential relationship can now be 'imputed'.  Lord Justice Sedley observed:

'The law no longer needs to construct an artificial relationship of confidentiality between the intruder and the victim: it can recognize privacy itself as a legal principle drawn from the fundamental value of personal autonomy.'

Venables & Another v News Group

The other action was brought by the killers of Jamie Bulger which prevents publication of information that would permit their identification on their release.  In Venables and Another v News Group Newspapers [2001] EMLR 10 they were granted injunctions against the whole world to prevent publication of what the court regarded as confidential information.

Although the case was ostensibly decided on the basis of privacy/confidentiality, the significant risk of attacks on the claimants clearly weighed heavily in the mind of the judge, who indicated that if the only threat had been to 'respect for private life', the injunction might not have been granted.  The decisive factor appears to have been the real and serious risk faced by the claimants of their right to life being infringed (Article 2) and degrading and inhuman treatment (Article 3).  The test applied by the judge was of a 'real possibility of significant harm'.  The possibility therefore of other applicants for this relief which the general public would regard as entirely unworthy (such as paedophiles or sex abusers) will make the application of this precedent very difficult.

It is arguable therefore whether the latter case has truly advanced the law of privacy.  However, other unreported cases indicate that the momentum of this new jurisdiction is unstoppable, and since (for example) the press has at least adopted the pretence in the Press Complaints Commission code of respecting private life, then adoption by the courts of the principle which the press has conceded seems merely to be part of the process whereby law is formed out of principles which right-thinking members of the public think should have some legal force.

More Recent Case Law

The most recent case law however appears to indicate a greater willingness on the part of the courts of this country to step in to protect the privacy of the individual.  In a recent unreported judgment of Eady J (28 June – Queen's Bench Division) he affirmed an injunction awarded against MGN Limited on the eve of publication by the Sunday People of photographs of the home of David and Victoria Beckham.  The injunction restrained NGM 'from publishing in any manner any photographs, or the information contained in any photographs, of the claimants' house … including its rooms, garden, swimming pool and out-buildings, save for:

(1) photographs taken from outside the boundaries of the property.

(2) photographs or information which are or is in the public domain.

(3) [disclosure for legal reasons].'

In a similar application brought by Heather Mills (Paul McCartney's fiancée) against News Group Newspapers (Chancery Division, 4 June 2001) Ms Mills was only unsuccessful largely because Mr Justice Lawrence Collins observed that The Sun's editor (Mr Yelland) had consistently adopted the position 'that he will not identify the house in The Sun unless the material becomes public through being published in other newspapers'.

In both these cases there was the additional, although exceedingly common element of a genuine physical threat to the claimants.  This brings together to some extent the principles adopted by the courts in the Hello case, and the action brought on behalf of Thompson and Venables.

Harassment by Publication?

In Esther Thomas v News Group Newspapers (Unreported – Court of Appeal, 18 July 2001) the Court of Appeal refused to strike out the claimant's cause of action based on the Protection from the Harassment Act 1997.  This legislation was enacted principally to protect people against stalkers.  However, the Act was drafted to cover a wider set of circumstances than the phenomenon of stalking, and there has been some debate as to how wide a set of activities will be caught by the criminal offence.

The media was concerned that the Act might affect the news-gathering activities of journalists.  This is because by virtue of section 1, a person must not pursue a course of conduct which amounts to harassment of another, and which that person knows (or ought to know) amounts to harassment of another.  The test as to whether the harasser ought to know whether his conduct amounts to harassment is determined by asking whether a reasonable person in possession of the information he has would think the conduct amounted to harassment.  It is clear from section 1(2) that 'conduct' includes speech, although there must be at least two instances of the conduct at issue.  Harassment is both a criminal offence and actionable in the civil courts.

In an action brought by someone described in The Sun as a 'black clerk', the subject of that article brought an action against News Group the publishers of The Sun, amongst other things, on the basis that the description of her as a 'black clerk' which caused a number of letters to be written by readers of The Sun amounted to harassment under the Act.  The Sun published a number of guilty readers letters, and were therefore vitriolic of a court of conduct.  She alleged that she was a victim of hate mail as a result of the Sun articles, and since her name and place of work were published by The Sun, this amounted to both racism and harassment.

When an application by News Group to strike the action out failed, it went to the Court of Appeal, which held that despite the article 10 principle of freedom of speech, the action by the claimant did have a reasonable prospect of success, and should not therefore be struck out or dismissed.

It was not anticipated that the Protection from Harassment Act would be applied to publications by the media, but this judgment clearly indicates that in appropriate circumstances the Act can be invoked against the media where publication gives rise to 'harassment'.  However, this claim could either be added to or used as an alternative to one under Wilkinson v Downton (see below) since the underlying principles are clearly related.  It seems then that where someone's right to lead an undisturbed life is interfered with by the media by a series of obligations which bring upon the claimant harassment and distress, this legislation will provide protection.

DAMAGES IN PRIVACY

Wilkinson – v – Downton – the right to personal safety

What if the media entity publishes, or just threatens to publish, private material about a vulnerable individual - say the experiences of a stalking victim?  What if that victim had a well-founded fear of a revenge attack, which meant that the threat to publish caused her to fear for her safety in the same way as a victim of an assault?  The answer from Esther Thomas v News Group seems to be that if the publication takes place and there is harassment, the statute aimed at stalkers themselves will give a remedy in damages.  The same Act should also provide injunctive relief.

However, what if, as in one case I conducted, it was the threat of publication, and the attendant physical danger, which caused the psychological injury.  The Protection from Harassment Act may not provide a remedy.  There may be a common law solution to the problem.  Alternatively, since it is reported that Robert Thompson and John Venables are both fearful (with good reason) of their identity/whereabouts being discovered, and a possibly murderous revenge attack, what if a reporter made contact with them and threatened to publish details of their whereabouts?  This would create in either or both of them a very well-founded fear for their own safety, which might in turn cause serious psychological injury.  Again I believe the ever flexible common law can provide an answer.

In those circumstances, where there is both real danger and that fear has already caused severe distress to the claimant, the media cannot say it is unaware of that individual's psychological susceptibility, and if that individual suffers further severe stress or trauma as a result should that individual not recover damages?  Surely the common law must be capable of providing a remedy.  The French have controversially brought in just such a provision.  I believe the common law here already does so by means of this deliberate tort.

In Wilkinson v Downton [1897] 2 QB 57, the defendant, as a practical joke, told the Plaintiff that her husband had been injured returning from the races, and had suffered two broken legs.  The Plaintiff suffered 'vomiting and other more serious physical consequences, at one time threatening her reason and entailing weeks of suffering and incapacity ...' as a result (i.e. a form of psychiatric injury) and sought damages for (amongst other things) mental anguish and her consequent illness.

The court found that the defendant meant the words to be acted upon, that they were acted upon and that he knew the words to be false.  A sum of £l00 was awarded to compensate the Plaintiff for her loss and damage.  Mr Justice Wright held:

'The defendant has .... wilfully done an act calculated to cause physical 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.  This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.'

This establishes that doing an act calculated (in the legal sense of the word) to cause physical harm is actionable if physical harm results.  It seems then that the claimant must show that the defendant's act would cause harm to a person of ordinary firmness, and that the act caused the harm (and that it is not too remote).  According to the ordinary principles of law, liability will attach even if the act would not affect a person of ordinary sensibilities.

Wilkinson v Downton has been followed in only one English decision: Janvier v Sweeny ([l919] 2 KB 316).  In order to gather information from the Plaintiff about some letters, a private detective visited her and announced; 'I am a detective inspector from Scotland Yard, and represent the military authorities.  You are the woman we want, as you have been corresponding with a German spy.'  The Plaintiff suffered severe shock leading to physical incapacity from which she recovered.  Banks LJ was in no doubt that Wilkinson v Downton was good law.  Both of these actions included an element of deceit - is that however a requirement of the tort?  It seems not.

The principle has been extended beyond false statements to include threats (Khorasandjian v Bush ([1993] QB276) and other conduct.  In Bradley v Wingnut Films Limited ([1993] LNZLR 415) an injunction was granted to prevent (inter alia) the intentional infliction of emotional distress on the Plaintiff by a burial plot being shown as part of a comedy horror film.  Although the Plaintiff's claim was rejected on this ground, the Judge proceeded on the basis that the film's depiction of the cemetery plot constituted conduct sufficient to base a Wilkinson v Downton action.

It appears that the defendant's act must be wilful; that is to say either intentional or reckless.  In Abramzik v Brenner ([1976] 65 DLR) (2d) 651,654, Culliton CJC said:

'There can be no doubt that an action will lie for the wilful infliction of shock, or a reckless disregard as to whether or not shock will ensue from the actions committed.'

There appears to be some doubt as to the degree and nature of intention required for this tort.  The word used in the original Wright J. Judgment is 'calculated'.  The term cannot be restricted to the normal meaning of the word 'intention' because in Wilkinson v Downton the defendant's intention was not to inflict physical harm/psychiatric damage.  Academic opinion and the caselaw suggest that the term means something between 'intended' and 'foreseeably likely'.

As usual for the law in this country, we must go West to observe the future.  So what do the Americans say?

The American perspective on the deliberate infliction of harm

The equivalent principle to that in Wilkinson v Downton in the United States of America is summarised in Section 46 of the Re-statement (Second) of Torts.  The tort is defined this:  'one who by extreme or outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.... '

The tort has three elements: (a) the conduct must be extreme and outrageous; (b) it must be intentional or reckless; (c) it must cause severe emotional distress or bodily harm.

The key issue is the scope of activity covered by the tort.  It does not extend to 'mere insult, indignities, threats, annoyances, petty oppressions or other trivialities.  The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind...'  There is only liability for conduct 'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilised society.'

The American formulation of intention suffers from the same Wilkinson v Downton ambiguity as regards precisely what must have been intended, by simply stating that the relevant conduct must have been intentional or reckless.  In Wilkinson v Downton it was held to be sufficient that the defendant did an act which was 'calculated to cause physical harm'.  The judgment does not make it clear whether the court found that the defendant foresaw/intended psychiatric injury (as opposed to merely wishing to play a practical joke).  If a claimant in such a case does need to establish this degree of intention, then this action (as any similar action) would face almost insuperable evidential difficulties.

One authority indicates the view taken by the American courts and these should point the way for us.  In Rogers v Loes L'Enfant Plaza Hotel ([1981] 526 F.Supp. 523 (US District Court, District of Columbia)) the habitual sexual advances of the Plaintiff to the defendant over a period of time were held so outrageous as sufficient to allow a court to conclude that the defendant intended to harm the Plaintiff.  This is in line with the attitude of the English Criminal Law to the issue of intention.  The 1967 Criminal Justice Act Section 8 allows a court to infer intention of a result 'by reference to all the evidence'.

The last issue concerns what damage to the victim is recoverable under the Wilkinson v Downton tort.  In Wilkinson v Downton itself the Plaintiff has clearly suffered physical injury.  The position in negligence is as follows:

'Damages are ... recoverable ... for any recognisable psychiatric illness...' (Hinz v Berry [1970] 2 QB 40, 42 per Lord Denning, MR)

It seems severe emotional distress falling short of actual illnesses does fall however within this tort.  It follows then that the possible scope of Wilkinson v Downton (so far as recoverable damage is concerned) is far wider than that in negligence.  This appears to have been the view of the Law Commission in its report entitled 'Liability for Psychiatric Illness'.  The Law Commission comments in a footnote:

'Damages for psychiatric illness caused by an intentional tort appear to be available without special restriction (assuming that the tort is one which protects against personal injury rather than, e.g. economic loss.' In Wilkinson v Downton 'The defendant, as a practical joke, deliberately and falsely told the Plaintiff that her husband had been injured in a road accident.  The Plaintiff suffered severe shock and became seriously ill.  Wright J held that the Plaintiff was entitled to recover in tort for the 'physical harm', in this case the psychiatric illness, which she suffered as a result of the defendant's wilful act.'

The American approach has been not to require proof of actual physical injury where the tortious violation is intentional rather than negligent.  In State Rubbish Collectors Association v Siliznoff ([1952] 24 p. 2nd-282 (Supreme Court of California)) the complaint was of emotional distress caused by threats.  While the Plaintiff vomited several times and had to stay away from work for a few days, his main complaint was of continued emotional distress.

I suggest that this is the correct approach in this jurisdiction.  This is surely more than the application of the basic principles which we apply in the crime of assault.  Halsbury's defines assault as 'any act committed intentionally or recklessly, which causes another person to apprehend immediate and unlawful personal violence.' If a newspaper intentionally exposes a victim of physical violence to further physical violence by disclosing (or threatening to expose) 'private' information about that individual, and that individual suffers trauma as a result, then surely that newspaper should be held liable.  This should be subject of course to the requirement for the free speech protection enshrined at Article 10 of the Convention and the public interest test which is a part of that principle.

So far as the Press is concerned, the PCC Code helpfully sets out the nonexclusive elements which have been agreed by the media:

1.  The public interest includes:-

(i)   Detecting or exposing crime or a serious misdemeanour.

(ii)  Protecting public health and safety.

(iii)  Preventing the public from being misled by some statement or action of an individual or Organisation.

However, it is difficult to see the public interest in re-inflicting on the victim of a crime the consequences of unlawful acts, any more than a rape victim should suffer the public humiliation of details of her sufferings being reported in the national press.

The critical issue if the law is to develop is the one of intention.  The judgment in Wilkinson v Downton should settle a matter.  If the House of Lords had adopted a narrower view of intention, then it would have accepted that Mr Downton's 'intention' was to conduct a practical joke (albeit a poor and a cruel one).  If he had been asked whether he intended (using the term in its lay sense) to cause psychiatric damage to the subject to his practical joke, doubtless he would have said he did not.

Perhaps in the decision there is the germ of the negligence principle composed some 30 years later, since we might more readily say that he owed Mrs Wilkinson a duty of care, which duty he negligently breached causing her loss in the form of psychiatric damage.  However, no-one has suggested that Wilkinson v Downton is not good law, and if the courts remain faithful to the broad view of intention adopted by the House of Lords in Wilkinson v Downton, then the scope for using it as a protection for the privacy of vulnerable individuals in particular is substantial.

2. Negligence

If the media writes about you, does it not owe you some duty of care?  It clearly does on any of the accepted tests.  The starting point is that seminal judgment of Lord Atkin in Donoghue v Stevenson ([1932] A.C. 562):-

'The rule, you are to love your neighbour, becomes in law, you must not injure your neighbour and the lawyer's question, who is my neighbour? receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour?  The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.'

Lord Atkin went on to divide the test into two elements.  The first was of reasonable foresight of the injury concerned.  The second was the principle that the duty was limited to 'persons so closely and directly affected' by the defendant's acts that they should be in his contemplation (the neighbour principle).

This has now been distilled to the principle set out by Lord Bridge in Caparo Industries Plc v Dickman ([1990] to W.L.R. 605 at pages 607 - 618):

'What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on one party for the benefit of the other.'

The law requires a duty of care, i.e. one in which the law attaches liability to carelessness.  As set out in Clerk & Lindsell, 'There has to be recognition by law that the careless infliction of the kind of damage in suit on the type of person to which the Plaintiff belongs by the type of person to which the defendant belongs is actionable.'

Wilkinson v Downton was of course decided long before Donoghue v Stevenson, so why not sue in negligence?  The first question then is whether the media owe a duty to the subject of intrusive reporting.  Clearly they do, and the largely ignored PCC Code constitutes evidence of what the proper standard should be: the PCC Code provides the following protection for the individual, which is supposed to set out the voluntary restriction adopted by the media on intrusive reporting concerning an individual:

3.    Privacy

(i)  Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent.

(ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.'

As to whether the media have acted carelessly, I think this is realistically beyond challenge if the Code is broken.  However, one of the pre-conditions for recovery for psychiatric injury is a recognisable psychiatric illness, a limitation which the Wilkinson v Daunton action is free from:

'[T]he first hurdle which a plaintiff claiming damages of the kind in question must surmount is to establish that he is suffering, not merely grief, distress or any other normal emotion, but a positive psychiatric illness.' per Lord Bridge in McLoughlin v O'Brian [1983] 1 A.C. 410, 431.

Damages have been awarded for morbid depression and hysterical personality disorder (Hinz v Berry [1970] Q.B. 40 and post-traumatic stress disorder (Frost v Chief Constable of South Yorkshire Police [1997] W.L.R. 1994).  There are, I am sure, many who have suffered intensely from Press intrusion, although only a few would pass the present thresholds.

The claimant must also satisfy the test of reasonable foreseeability.  In the first English case to recognise a cause of action for negligently inflicted psychiatric illness not consequent on any physical impact (Dulieu v White & Sons [1901] 2 K.B. 669), Kennedy J suggested that recovery should only be available where the plaintiff's illness arose from a reasonable fear of injury to herself.  This limitation was rejected by the Court of Appeal in Hambrook v Stokes [1925] 1 QB 141, where a more liberal test was adopted.  It follows then that the two requirements for recovery for psychiatric illness in negligence can be fulfilled where publication (or threatened publication) places a victim of crime in fear of further injury.

Essentially the test that applies to the restriction of reporting of legal proceedings (contrary to the general principles set out in Scott v Scott [1952] 2 All ER 890) was helpfully set out by Dyson J in In Re D (unreported).  Mr Justice Dyson analysed the relevant case law, and concluded that where the reporting of the proceedings before him placed the applicant for protection at real risk either of significant physical or psychological injury, then the media should not be permitted its normal and proper liberty to report the proceedings.  The test should be applied to the media generally, and should it publish or threaten to publish in circumstances where there is such danger, and danger is caused, the media should be liable.

CONCLUSION

The media should of course be allowed a wide latitude to report for the sake of all of us the events which impact on our lives.  The law of defamation rightly disincentivises the media from publishing untrue material which damages an individual or corporation, subject to certain defences (thus ensuring the 'free speech' we hear is of a certain quality), the developing law of qualified privilege being in effect a public interest defence.  The law of privacy should strike the same balance and, subject to the public interest, the private lives of individuals (especially vulnerable individuals) should be protected.

Just as the law of confidence appears to have excluded the need for detriment on the part of a claimant and damage is presumed in libel, so the individual's right of protection or their private lives should not require proof of actual harm.  However, if the individual's private life is intruded upon and that individual suffers loss, then he or she should be compensated; otherwise any privacy law is toothless, and the media does not have a proper and necessary incentive to abide by it.

The common law has the necessary building blocks to provide that protection.  I hope that the introduction of Article 8 will continue serve as a catalyst to complete the process, and that the courts will be stringent in requiring the media to invest its - invariably superior - resources to prove public interest where it considers such an interest exists, and to compensate properly those whose lives it wrongly affects in carrying out its otherwise lawful and democratic responsibilities.

Jonathan Coad

This article was first published in Entertainment Law Review Issue 8 2001.

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