I recently argued here that, if the High Court in Sinnott v Carlow Nationalist refers the matter to the Supreme Court, that court should take the opportunity to clarify the tort of invasion of privacy in Irish law. It’s a mess that needs sorting. After listening to Prof Gavin Phillipson‘s paper on UK privacy law in the Dublin Legal Workshop last week, it seems to me that UK privacy law is also a mess that needs sorting, and the House of Lords (in its judicial capacity, it is the UK’s highest court) should take a similar opportunity to sort things out there.

I have been musing since Gavin’s presentation on two points which seemed to me to arise from it (that’s Gavin in the photo on the left, btw). The first was that the UK’s law on invasion of privacy has been radically altered under the influence of Article 8 of the European Convention on Human Rights (ECHR). The courts have used this to effect a rather substantial remodelling of the existing action for breach of confidence, transmuting it into a wrong of misuse of private information. The second was that, radical as this seems, it is only half of what’s necessary, again for two reasons.

First, this wrong of misuse of private information is not quite yet a tort of invasion of privacy. It is still being analysed under the rubric of breach of confidence. At English law, it seems, privacy is still the tort that dare not speak its name. And that’s a bad thing, not least because it leads to bad analysis: making breach of confidence do the work of invasion of privacy distorts a perfectly satisfactory equitable doctrine, and often leads in privacy cases to engaging in unnecessary analysis (required by the breach of confidence action but inappropriate for a privacy action).

Second,  this wrong  of misuse of private information does not in fact seem to be fully compliant with the Convention. Indeed, it was a theme of Gavin’s paper that, even though English privacy law is developing under the influence of the ECHR, it seems nevertheless quietly determined to go its own way, departing in some rather significant respects from ECHR standards. The approach of the European Court of Human Rights in von Hannover v Germany [2004] ECHR 294 (24 June 2004) gave Article 8 a very wide scope, making it applicable (in Gavin’s words) “to any publication of any unauthorised photograph of a person engaged in any activity other than their official duties even if they are in a public place at the time”. This is an expansive defintion of privacy, encompassing all aspects of a person’s life which don’t relate to official duties. In the case itself, the photos complained of were “anodyne” (Gavin’s description) shots of Princess Caroline’s everyday life, and yet the Court held that their publication infringed Article 8. And this expansive approach was confirmed in the later case of Sciacca v Italy [2005] ECHR 8 (11 January 2005).

On the other hand, the UK courts have not taken this (very subjective) approach. Rather, after Campbell v MGN [2004] UKHL 22 (6 May 2004), they have taken a different (more objective) approach, dismissing trivial publications as not implicating Article 8, and asking whether there was in the circumstances a reasonable expectation of privacy. This affords a generous measure of protection, just not as wide as that provided by the ECHR. It is quite wide enough to protect Prince Charles’ diaries, or the confidences of canadian chanteuse Loreena McKennitt, though not already-published revelations of drug-taking.

(Update (09 Feb 07): Steve has emailed me with the news that the McKennitt decision could be appealed; if so, the House of Lords will get yet another opportunity to think about these issues).

It might be said, then, that the ECHR takes the view that “if-it’s-not-public-office,-then-it’s-private”, whereas the UK courts take the view that “there-must-be-something-to-make-it-private”. The fault line between these two approaches is graphically illustrated by photography, especially covert photography. Under the ECHR approach, photos of subjects in public places can still constitute invasions of privacy if they are of subjects doing other than their public official functions. By this standard, most photos will almost automatically be invasions of privacy. On the other hand, under the UK approach, photos of subjects in public places are not automatically invasions of privacy, and it will all depend on whether the subjects have a reasonable expectation of privacy in the circumstances.

The Sinnott case raises all of these issues (and continues to exercise the blogosphere – see Media Forum and Blurred Keys, and much robust common sense from Sarah Carey on GUBU). As the English cases have used the ECHR to mould breach of confidence, so we could use both it and the Constitution to evolve our own protection of privacy. But the English courts have been too timid in staying within the confines of breach of confidence and not developing a straightforward tort of invasion of privacy. We should feel the fear, and do it anyway.