A brief introduction to the concept of privacy under English law – Part III

For context please see Part’s I and II of our analysis.

Eraser Picture

From the hallmark case of Campbell and the development of breach of privacy as an action, it is clear that the integration of privacy as a concept in English law is still in its formative years. In Part III we consider some of the significant cases post-Campbell to date, bringing into relief key issues and developments in privacy law, many of which are ongoing or merit further consideration by the courts. In particular, the broad nature of an individual’s reasonable expectation of privacy becomes clear (covering issues of children’s privacy and biometric data retention) and the degree to which this can be qualified against other rights is explored.

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Citation: Mooting the reformation of Canadian privacy laws

We would like to refer readers to an excellent article from the blog of Michael Geist an authoritative academic from the University of Ottowa, tackling privacy law issues in Canada. The piece considers recent movements by the Canadian Privacy Comissioner in legislative reform and the importance of robust and consistent enforcement of privacy laws.


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Imperfect solutions for access to justice -success fees are no longer recoverable in English defamation and privacy cases

On 29 November 2018, the Government published its response to the 2013 consultation on costs protection in defamation and privacy claims. In particular, the written statement by the Lord Chancellor and Secretary of State for Justice summarizes the amendments to costs provisions, raising access to justice concerns.

In short, the Government has decided to implement s.44 of the Legal Aid, Sentencing and Punishment of Offenders (LAPSO) Act 2012, making claimant lawyers success fees under conditional fee agreements (“CFAs”) unrecoverable from defendants in defamation and privacy cases commencing 6 April 2019. The consolation is that after-the-event insurance (“ATE”) fees remain recoverable. This article considers how these changes perpetuate imperfect solutions that harm access to justice.

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Citation: Case Law, India: Puttaswamy v Union of India, Supreme Court recognises a constitutional right to privacy in a landmark judgment – Hugh Tomlinson QC

A landmark judgment by all accounts, this article is an excellent distillation of the key takeaways.

Inforrm's Blog

On 24 August 2017, a nine judge bench of the Supreme Court of India handed down its decision in the important constititutional case of Puttaswamy v Union of India [pdf].  In a remarkable and wide ranging 547 page judgment the Court ruled unanimously that privacy is a constitutionally protected right in India. This is landmark case which is likely to lead to constitutional challenges to a wide range of Indian legislation.

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A brief introduction to the concept of privacy under English law – Part II

In Part II we consider the legislative framework under English law which enshrined privacy and the recent development of the action for misuse of private information, underpinned by privacy as a value.

The right to privacy was codified into legislation at European Union level in the European Convention of Human Rights, which provides a higher level interpretive layer of guidance on the application of such rights. However, these provisions required integration into English law via legislation to be effective. In taking the lead from the European authorities Parliament passed the Human Rights Act 1998 (“HRA”) to achieve such harmonisation. Article 8 of the HRA addresses the right to a private life:

  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.

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A brief introduction to the concept of privacy under English law – Part I

This article is meant to illustrate the development of the concept of privacy under English law, is by no means exhaustive and provides a general reference to key developments.

Many doctrines under English law form due to common law, also known as judge-made or case law, where a series of legal cases create and form doctrines or principles which underpin legal rights. Privacy emerged as a notion in common law in the 18th century, developing through cases, until it was legislated in the 20th century under the European Convention on Human Rights, which was integrated into English law by the Human Rights Act 1998. In Part I we explore the early common law cases which introduced the concept of privacy to English law.

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A regulatory Trojan horse – decrypting calls for a Federal consumer privacy law in the United States

In a keynote speech before the European Parliament in Brussels on 24 October 2018, Tim Cook CEO of Apple called for the implementation of a Federal privacy law, praising the Parliament for its implementation of the General Data Protection Regulation (“GDPR”):

“We at Apple are in full support of a comprehensive Federal privacy law in the United States. There, and everywhere, it should be rooted in four essential rights: First, the right to have personal data minimized… Second, the right to knowledge… Third, the right to access… and fourth the right to security.”

Data-driven companies are painfully aware that they need to be seen to take consumer privacy seriously or risk alienating customers. However, they are also aware of the regulatory burden new laws would place on their operations. The result is a covert attempt to undermine state legislative efforts by pushing for superseding Federal privacy laws.

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