Big brother’s big brothers: Tort law and privacy in the Internet age

The Internet is a looming challenge for the protection of privacy in England. Although judges have on numerous occasions paid lip service to a right to this human right,[1] English law does not provide for a general tort to privacy.[2] This essay examines, to what extent the three traditional legal torts (defamation, harassment, and trespass to land)[3] and the two emerging torts (wrongful disclosure of private information and wrongfully obtaining access to private information) are equipped to protect the privacy of individuals in the Internet age.

 

1. Defamation:

The tort of defamation sometimes acts as a surrogate for a general tort to privacy.[4] Although it is not necessary to prove damages for a cause of action in libel, damages can be awarded.[5] If, however, no damage can be proved, it is a sign that in fact the claimant’s dignity has been wounded, and not that his reputation is compromised.

Furthermore, although it is the tort’s aim to protect a person’s reputation, the jury in Berkoff v Burchill [6]was allowed to find the description “hideously ugly” defamatory. This was so, despite the fact that the words did not amount to an attack in his reputation in the ordinary sense of the word[7] – they did not imply that his reputation as an actor was undeserved[8]. Instead the judges emphasised that the claimant may be “treated in an adverse manner“; but by being called ’ugly’ a person is not necessarily treated in an adverse manner, as the example of Boris Karloff shows.[9] Thus, Neill and Phillips LJ really gave effect to a right of dignity against media excess: Privacy.[10]

The test for ‘defamatory’ in Berkoff as developed further by Tugendhat J[11] includes the requirement that “right-thinking persons” may treat the person referred to in an adverse manner. Accordingly, the claimant in Youssoupoff v MGM Pictures[12] would not have a remedy in defamation: Nowadays, no right-thinking person would think in an adverse manner of a rape victim. However, a publication of information like in Youssoupoff may negatively affect the way she would be treated by others.[13] Thus, despite concerning itself with privacy on the quiet, the tort of defamation fails to protect the privacy of people who suffer distress due to false statements of fact, which are not defamatory. If the right-thinking members of society standard is applied as in Byrne v Deane[14], then a student that is bullied by his classmates by wrongfully accusing him on facebook of snitching on them and the girl whose friends have ‘fraped’[15] her by untruthfully posting from her facebook profile on her wall that she was a lesbian, are left without a remedy. This may cause inability to function in academic settings and higher suicide risks.[16]

A privacy tort dealing with such situations, the ‘tort of false light’, exists in the United States, [17] but had flooded the courts with unreasonable false light cases based on innuendos and has already been abolished in some states.[18] McBride and Bagshaw advise against introducing ‘false light’ into English law because such a duty would impinge on too many aspects of ordinary life and would burden those who want to retell recent events in a dramatically engaging manner.[19] Therefore, a better approach to close the gap would be to merge the tort of defamation with the tort of wrongful disclosure of private information, as exemplified by the introduction of the public interest defence in defamation in Reynolds v Times Newspapers[20].[21] However, the recent codification of the case law in the Defamation Act 2013 might inhibit such a development.

 

2. Harassment:

The Protection From Harassment Act 1997 protects from invasion of privacy by harassment. However, section 1(1) limits the scope of the Act to “a course of conduct”. McBride and Bagshaw argue, therefore, that a statutory ‘tort of intrusion’, along the lines of the U.S. tort for unreasonably intruding into another’s private situations, should provide redress, when the harassment consists of one act.[22] However, English tort law expects some degree of tolerance of its citizens, when the behaviour is just rude and irritating.[23] In general, reasonable people are able to solve such issues among themselves. The Equality Act 2000 protects victims of one-off harassment acts, where the other party’s position of power (as defined in Parts 3-7) inhibits reasonable private reactions.

However, a new challenge results from cyber mobs[24] consisting of separate individuals pursuing the same one-off act of harassment on a single victim. Nevertheless, it is submitted that “pursue a course of conduct” can be interpreted such that joining a harassing cyber mob could fall within section 1 Protection From Harassment Act 1997.

Thus, only one-off harassments by taking pictures are problematic. Pictures can be published on the Internet within seconds and such acts are often irreversible, as soon as the pictures are online. Nonetheless, this issue could be better dealt with in the emerging tort of wrongfully obtaining private information, as discussed below.  


3. Trespass to land:

Trespass to land is an insufficient tool to protect privacy. ‘Virtual shadows’ created by online-applications – like google-earth – invade people’s private homes by collecting data without physically entering the land.[25]

Thus, in Canada, territorial privacy is understood as the concept of home, being the place where most intimate and private activities are most likely to take place and this indicates the reasonableness of a person’s expectation of information remaining private.[26] This definition could include social networks because nowadays private activities are likely to take place there. Since the ‘reasonable expectation test’ in England is part of the tort for wrongful disclosure of private information and territorial privacy is really about sensible private information, it is submitted that the two emerging torts should also protect territorial privacy by accepting that expectations to territorial privacy – including social networks – are always reasonable.

 

4. The tort of wrongful disclosure of private information:

           4.1 Reasonable expectation test

The ‘reasonable expectation test’ for wrongful disclosure suggests, “that liability depends on whether privacy is likely to be respected in a particular situation, rather than on whether it should be respected in that situation“. This has the negative effect that “once an intrusive practice comes sufficiently widespread (…) claimants will have no action for breach of privacy, if it occurs“.[27] Thus, the test may justify invasions of privacy instead of protecting claimants against them. Especially, since the usage of social Internet platforms becomes so widespread, expectations of the ‘google generation’[28] may totally disregard an individual’s privacy expectations. In the past, public’s opinion shaped the ethical standards of the traditional press and the press’s financial interests afforded journalistic scrutiny, before infringing someone’s right to privacy by publishing an article.[29] However, these market mechanisms as limitations are not present on the Internet,[30] where people share private information about ordinary citizens to a wide audience via Facebook, Twitter, or YouTube with their smartphones – without aiming to make a profit, without a need to consider costs, and without considering the affects on the other person’s privacy. It is therefore further submitted that a behavioural analysis for the reasonable expectation test should be introduced as suggested by Hughes’[31] to protect especially children, who expect information on the Internet to stay private. This approach has been applied in Murray v Big Pictures[32] and Campbell, but was subsequently undermined in The Author of a Blog v Times Newspapers[33].[34] Thus, it is submitted that a Supreme Court decision should reaffirm the original test.


4.2 Public interest

The ‘role model exception’ at the second stage of test, which allows for the press to interfere with a public person’s privacy, if the person presents herself in the wrong light,[35] should be abolished. It is unfair to people who have not sought the limelight[36] and celebrities distinguishing themselves from the fictional character they represent as artists by stage names, wearing masks or suchlike. Furthermore, it is difficult to draw a distinct line between people who have sought public intention and who have not. How big must a company be that a CEO becomes a public figure? Moreover, are city councillors, policemen or a person posting a youtube-diary role models, whose records should be put straight? Especially, in the Internet age, everyone could be the role model for a small group through a youtube-channel or by being a twitter-tweeter.

 

5. Wrongfully obtaining access to private information:

McBride and Bagshaw argue that in Imerman v Tchenguiz[37], the Court of Appeal has created the new tort of wrongfully obtaining access to private information.[38] The test differs from the traditional breach of confidence test by requiring (1) intentional (2) secret (3) obtaining of information (4) knowing that the claimant reasonably expects it to be private.[39] Although this approach should be welcomed, it is submitted that the requirement of secrecy should be revised. There is no qualitative difference, between 1) a paparazzi climbing on a celebrity’s garden wall and taking pictures of the celebrity sunbathing, and 2) a paparazzi shouting that he was going to take pictures, while standing on the wall and before the celebrity can stop him, he takes the pictures and uploads them on twitter. This tort has developed recently, thus, it can be hoped that the ‘secrecy’ requirement will be ignored in future, so that this tort closes the gap that the Protection from Harassment Act 1997 leaves for pictures.

 

Conclusion:

As shown above, due to the Internet and the “scatter gun approach” in privacy[40], weak spots exist in the law of privacy. Nevertheless, it is submitted that allowing the courts to develop the emerging torts of privacy further solves the problems best; the incipient stages seem promising and are better equipped to move with technological developments in the long term than a statutory tort. A major reform introducing a general tort to privacy is unadvisable because there are different manifestations of how an invasion of privacy may arise and it is essential to articulate these differences.[41] Moreover, English tort law is traditionally remedy and not rights based.[42]

 

Julian Kulaga

King’s College London


[1] Lord Denning in Schering Chemicals v Falkman [1982] QB1 [21C]; Lord Scarman in Morris v Beardmore [1981] AC 446 [464C]; Lord Keith in AG v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109, [255]

[2] Bingham, Tom, “The Business of Judging: Selected Essays and Speeches“, 2000, 144

[3] Ibid.

[4] Barendt, Eric, “What is the point of libel law?“, Current Legal Problems 110, 1999, 117

[5] Elton John [1996] 2 All ER 35

[6] [1997] EMLR 139

[7] Neill LJ in Berkoff [151]

[8] Barendt, 119

[9] Millett LJ in Berkoff [152]

[10] Barendt, (1999), 120, 125

[11] Thornton v Telegraph Media Group Ltd [2010] EWHC 1414

[12] (1934) 50 TLR 581

[13] Alison Saunders (Crown Prosecution Service), ”Enduring myths about rape victims lead to acquittals, says chief prosecutor“, Guardian, 30 January 2012

[14] [1937] 1KB818

[15] Facebook-Raped

[16] Bradshaw, Karen and Saha, Souvik, “Academic Administrators and the Challenge of Social-Networking Websites”, in “The Offensive Internet”, edited by Levmore and Nussbaum, 2010, 50

[17] Times, Inc v Hill (1976) 385U.S.374

[18] Zimmerman, Diane Leenheer, “False Light Invasion of Privacy: The Light that Failed”,

Vol. 64(2) New York University Law Review 364, 1989, 452

[19] McBride, Nicholas J. and Bagshaw, Roderick, “Tort Law, Fourth Edition, Pearson Education 1

[20] [2001] 2 AC 27

[21] Bennett, Thomas,“Horizontality’s  new  horizons –  re- examining  horizontal  effect:  privacy,  defamation and the  Human  Rights  Act:  Part  2”, 21(4) Entertainment Law Review 145, 2010

[22] [622]

[23] See Lord Atkin in Sim v Stretch [1936] 2 ALER 1237, [1242]

[24] Citron, Danielle Keats, “Civil Rights in Our Information Age”, “The Offensive Internet”, 40

[25] Mindell, Rob, “Rewriting privacy: the impact of online social networks“, 23(3) Entertainment Law Review, 52, 2012, 52

[26] R v Tessling [2004] 3SCR432, [22-23]

[27] Moreham, N.A.,“Privacy in the common law: a doctrinal and theoretical analysis“, 121 Law Quarterly Review 628, 2005, 647

[28] Solove, Daniel J., “Speech Privacy and Reputation on the Internet”, “The Offensive Internet”, 17

[29] Lord Justice Leveson, “Privacy & The Internet“, Communications Law Centre University of Technology Sidney, Australia, 7 December 2012, paragraph 19

[30] Paragraph 20

[31] Hughes, Kirsty, “A Behavioural Approach tot he Understanding of Privacy“,75 Modern Law Review 806, 2012

[32] [2008] EWCA 446, at paragraphs 35-36

[33] [2009] EWHC 1358

[34] Hughes, 827-828

[35] Ferdinand v MGN Ltd [2011] EWHC 2454

[36] Bingham, 148

[37] [2011] 2 WLR 592

[38] [615]

[39] Neuberger MR [68]

[40] Lunney, Mark and Oliphant, Ken, ”Tort Law: Text and Materials“, 4th edition, Oxford University Press, 2010, 788

[41] Mulheron, Rachael, “A Potential Framework to Privacy“ A Reply to Hello!“, 69(5) Modern Law Review 679, 2006, 707

[42] van Dam, Cees, “Who is Afraid of Diversity – Cultural Diversity, European Co-operation, and European Tort Law“, 20 KLJ 281, 2009, 286


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