Although English privacy law has developed significantly over the past two decades, it continues to focus almost exclusively on the disclosure of private or confidential information. This article argues that if privacy is to be comprehensively protected, then the importance of physical privacy – which is breached when a person is looked at, listened to or recorded against his or her wishes – must also be recognised. After discussing what physical privacy is and why existing protections for it are inadequate, the author contends that a physical privacy action can, and should, be developed from within English common law.
ONE of the most difficult questions facing English courts as they develop the common law right to privacy recognised by the House of Lords in Campbell v. MGN Ltd. is whether and, if so, when a person might have a reasonable expectation of privacy in a public place. Should an individual have a cause of action if she is photographed as she leaves her mother’s funeral or as he receives medical attention after an accident? Or should there be an absolute rule which says that there is no privacy in a public space? Recent decisions in England and the European Court of Human Rights (ECtHR) suggest that it is no longer an answer (if it ever was) simply to say that the disclosure concerned something which took place in public. A more difficult question therefore remains: if the existence of a privacy interest does not depend on the nature of the space in which claimants find themselves, how do we determine whether a person does have a legitimate privacy interest?
It is possible to breach a person’s privacy without disseminating any information about him or her. Surreptitiously videoing people in their homes or offices, relentlessly pursuing them for an interview or photograph, hacking their voicemail messages, or using a bugging device to record their conversations all interfere with this non-informational aspect of their privacy.
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