Peter A Clarke

I attended lecture by Baron Walker of Gestingthorpe last year on THE ENGLISH LAW OF PRIVACY – AN EVOLVING HUMAN RIGHT .  It is extracted in the latest edition of Bar News (at page 78).

It is a particularly thoughtful speech. Of particular interest his view on the future of the action:

As the law of privacy develops its origin in the law of confidence will become a historical curiosity, and invasion of personal privacy will be recognised as a separate tort. Indeed I think we have probably reached that point already. Another necessary exercise in taxonomy is to recognise that while article 8 protects the individual both (by the law of defamation) against false publications which damage his reputation and (by the new tort) against true publications which are unjustifiable intrusions into his privacy, the Court’s longstanding reluctance to impose prior restraint on free speech (known to English lawyers as the rule in Bonnard v Perryman32) ought to be confined to libel; and, arguably, should even with libel yield where necessary to “parallel analysis” to determine what proportionality requires.  This topic was fully discussed by the High Court of Australia in the remarkable O’Neill case.

Muck-raking is a long-standing and salutary function of the press. But  once the exposure of bad behaviour moves out of the sphere of political and public life it is no longer possible (if it ever was) to justify every or any invasion of privacy by invoking the well-known saying that “there is no confidence in iniquity”.35 The exposure of iniquity may be in the public interest, but the sensational disclosure of aberrant sexual conduct, especially if accompanied by prurient details and photographs, may not deserve the protection of the public interest defence.

For those interested in privacy law it is an address worth reading and reading again.

The problem in Australia is the lack of a legislative structure for the protection of privacy.  The Human Rights Act in the UK has provided significant structure for the development of the now tort of privacy.  Clearly the common law will need to deal with the intricacies of the law, and there are many. In Australia notwithstanding the recent reports (not to mention earlier ones) of the Australian, New South Wales and Victorian Law Reform Commissions ( on surveillance in public places and workplace privacy) recommending a statutory action for breach of privacy.

The leading (and virtually only) Australian case on privacy is Giller v Procopets.  While a positive step in recognising such a right the basis of the claim, for the breach of confidence, in equity is reminiscent of the early English approach.  Something the UK cases are moving away from (and acknowledged by Lord Walker.  It would have been better had the Court of Appeal in Giller adopted a tort of privacy. At the moment there is every likelihood that further privacy claims will develop under equitable principles.  While equity does afford flexibility in the normal course breach of confidence is not a very useful vehicle when dealing with eggregious breaches of privacy.

Unfortunately without some legislative fiat the common law will move slowly and that movement may be fitful.  That is a shame.  Privacy is a right that needs to be protected.  The law needs to provide a clear and flexible by which that right can be protected.  UK law is still in development but far ahead of the very tentative approach taken by Australian courts.