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Hong Kong Law Reform Commission |
4.1 We have concluded in our consultation paper on stalking that
existing law fails to provide adequate and effective remedies against stalking
or harassment of individuals.[143]
We examine in this chapter the more important issue of whether common law
affords adequate protection against invasion of individual privacy.
4.2 The common law does not recognise a general right to
privacy.[144] A person whose
privacy has been intruded upon has to show that the conduct of the intruder
amounts to the commission of a well-recognised tort for which the victim has a
cause of action. The protection of individual privacy is therefore merely
incidental to the granting of relief for recognised torts. If the
privacy-invasive act inflicting the injury is otherwise lawful, it does not give
rise to an action for damages even though the act is inflicted maliciously and
has caused embarrassment or emotional distress. Another difficulty is that the
common law does not recognise any principle upon which compensation can be
granted for mere injury to feelings. The plaintiff cannot maintain an action in
tort unless the breach has caused him physical harm or psychiatric illness. We
examine below to what extent privacy interests are protected through the
recognised heads of tortious liability.
4.3 The plaintiff has a cause of action in the tort of trespass to
land when, without justification, the defendant enters on the plaintiff’s
land, remains on such land or places any object upon it. This tort can be used
to protect the owner of premises from unjustified invasion of privacy if the
invasion involves physical encroachment upon premises. This will be the case
when the defendant installs a listening device inside the private premises of
the plaintiff,[146] or when the
defendant enters upon the plaintiff’s premises to collect information
without the plaintiff’s consent. Hence entry onto premises by a
television crew with cameras rolling will constitute trespass unless they have
express or implied licence to enter. In Lincoln Hunt Australia Pty Ltd v
Willesee, the court held that the implied licence for the public to visit
commercial premises “was limited to members of the public bona fide
seeking information or business with it or to clients of the firm, but not to
people, for instance, who wished to enter to hold up the premises and rob them
or even to people whose motives were to go onto the premises with video cameras
and associated equipment or a reporter to harass the inhabitants by asking
questions which would be televised throughout the
State.”[147] Yet even if
the plaintiff could obtain an injunction against trespass, he may not be able to
obtain an injunction against publication of photographs or films obtained during
the course of the trespass.[148]
4.4 The law of trespass protects a person’s property and his
enjoyment of it. It does not exist to protect his privacy as such. If a
person’s property is adjacent to the highway and he owns the soil over
which the highway goes, he may maintain an action of trespass against anyone who
loiters on the highway in order to spy upon
him.[149] But a person commits no
trespass when he takes a sketch, photograph or video tape of someone
else’s property by standing on a public street or on adjoining
property[150]- a person does not
commit a tort merely by
looking.[151] It is also clear
that a court will not grant an injunction to prevent a landowner from opening
windows which enables him to observe the activities of his
neighbours.[152] In Victoria Park
Racing and Recreation Grounds Co Ltd v Taylor, Latham CJ held that-
“[any] person is entitled to look over the plaintiff’s fences and to see what goes on in the plaintiff’s land. If the plaintiff desires to prevent this, the plaintiff can erect a higher fence. ... The defendant does no wrong to the plaintiff by looking at what takes place on the plaintiff’s land. Further, he does no wrong to the plaintiff by describing to other persons, to as wide an audience as he can obtain, what takes place on the plaintiff’s ground. The court has not been referred to any principle of law which prevents any man from describing anything which he sees anywhere if he does not make defamatory statements, infringe the law as to offensive language, etc, break a contract, or wrongfully reveal confidential information.”[153]
4.5 Indeed
a person has no right in law to prevent another taking a photograph of his
picture even within his own premises. In Sports and General Press Agency Ltd v
“Our Dogs” Publishing Co Ltd, the court refused to prevent the
defendant publishing photographs taken at a dog show by an independent
photographer. Horridge J held that “no one possesses a right of
preventing another person photographing him any more than he has a right of
preventing another person giving a description of him, provided the description
is not libellous or otherwise
wrongful.”[154]
4.6 In
Bernstein of Leigh (Baron) v Skyviews & General
Ltd[155] the defendant took aerial
photographs of the defendant’s house without their consent and then
offered the photographs for sale. The court did not grant an injunction
restraining the defendant from entering his airspace. It held that a flight
several hundred feet above his property did not interfere with his enjoyment of
land, nor was the mere taking of a photograph without committing trespass on his
land unlawful.[156] In the
opinion of Griffiths J, there was no law against taking a photograph:
“the mere taking of a photograph cannot turn an act which is not a trespass into the plaintiff’s air space into one that is a trespass. ... he could not prevent the defendants taking the virtually identical photograph from the adjoining land provided they took care not to cross his boundary, and were taking it for an innocent as opposed to a criminal purpose.”[157]
4.7 The
law of trespass is helpless where the surveillance is carried out from a
distance. It does not protect individuals from eavesdropping with the aid of
parabolic microphone where no wire-tapping or other physical intrusion upon
plaintiff’s property takes place. Likewise, it is not a trespass to
listen in to another’s telephone conversation as long as this does not
involve physical encroachment upon the plaintiff’s
land.[158]
4.8 A further
difficulty is that the law of trespass only protects plaintiffs who have a
proprietary interest in land. A person who does not have any interest in land
has no right to sue. The cause of action is of no avail to a guest or lodger.
The Younger Report highlighted the difficulties faced by a person who is not in
possession of the premises:
“the ordinary overnight visitor at an hotel may sleep in but does not ‘occupy’ the bedroom allotted to him and hence has no remedy in trespass against the intruder who plants a microphone in the room; the hotel proprietor will have an action in trespass but he may be unwilling to bring it; indeed he may have put the microphone in the room himself or be in collusion with someone who did so.”[159]
4.9 The essence of the tort of private nuisance is “a condition
or activity which unduly interferes with the use or enjoyment of
land”.[160] The
interference must continue for a prolonged period of time. It may take the form
of physical damage to the property or the imposition of discomfort upon the
occupier.
4.10 The occupier may have a cause of action in private
nuisance if he is harassed by telephone calls which cause him inconvenience and
annoyance, thereby interfering with the ordinary and reasonable use of the
property.[161] Likewise, watching
and besetting premises may constitute a private
nuisance.[162] However, the
plaintiff could not maintain an action if the property suffers no physical
injury or the beneficial use of the property was not interfered with. A person
who has taken a single photograph of another can never be liable in nuisance.
But Griffiths J said that:
“[if] the circumstances were such that a plaintiff was subjected to the harassment of constant surveillance of his house from the air, accompanied by the photographing of his every activity, I am far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief.”[163]
4.11 Subject
to the exception that a person who is in exclusive possession of land could sue
even though he could not prove title to it, a person who has no interest in the
land could not sue in private nuisance. Thus persons with no proprietary
interest with whom the owners share their homes, such as wives, husbands,
partners, children and other relatives could not sue. The action is developed
to protect private property or rights of property rather than the privacy of
individuals occupying private
property.[164]
4.12 This
cause of action is of limited use in the protection of privacy against
surveillance activities. As rightly pointed out by the Younger Committee,
“[the] eavesdropper or spy does not seek to change the behaviour of his
victim; on the contrary he hopes that it will continue unchanged, so that he may
have the opportunity of noting it
unobserved.”[165] There can
be no interference with the use of property if the occupier was not aware of the
intrusion at the time.
4.13 If A gives information concerning his private life to B on a
confidential basis, a subsequent unauthorized disclosure by B to a third party
would amount to a breach of his duty of confidence to A as well as an
infringement of A’s right of privacy. Hence, revelation of marital
confidences[166] or sexual conduct
of an individual[167] may be
restrained through the equitable remedy of breach of confidence. There are
three elements necessary to succeed in an action for breach of
confidence:[168]
a) The information must have the necessary quality of confidence about it.
b) The information must have been imparted in circumstances importing an obligation of confidence.
c) There must be an unauthorized use of that information to the detriment of the party communicating it.
4.14 Where
a person uses a photograph without the consent of the subject, the latter has a
remedy in the law of confidence if the person using the photograph owes the
subject an obligation of
confidence.[169] In Li
Yau-wai, Eric v Genesis Films
Ltd[170] the plaintiff allowed
himself to be photographed by the defendant on the understanding that the
photograph was to be used for casting purposes. The court held that revealing
the photograph to a wider audience thus making him a public figure would amount
to a breach of confidence.
4.15 There are signs that the action for
breach of confidence may be developed to afford protection to individual
privacy. Lord Keith in the “Spycatcher” case stated:
“Most of the cases [of breach of confidence] have arisen in circumstances where there has been a threatened or actual breach of confidence by an employee or ex-employee of the plaintiff, or where information about the plaintiff’s business affairs has been given to someone who has proceeded to exploit it for his own benefit. ... In other cases there may be no financial detriment to the confider, since the breach of confidence involves no more than an invasion of personal privacy. Thus in Duchess of Argyll v Duke of Argyll[171] an injunction was granted against the revelation of marital confidences. The right to personal privacy is clearly one which the law should in this field seek to protect.”[172]
4.16 The
Annex of this Paper contains an account of the extent to which the law of
confidence may afford protection against unauthorized disclosure of personal
information obtained by illegal means. The topic of breach of confidence will
be examined in detail in a separate report to be issued by the Law Reform
Commission.
4.17 The breach of confidence action is helpful only if
confidential information is disclosed or otherwise used by the confidant without
authority. Whereas the law of privacy protects unauthorized disclosure of
personal information regardless of there being any relationship or duty of
confidence, the law on breach of confidence protects information which is
imparted in confidence regardless of the offensiveness of its content. The
remedy aims at preserving the trust which the plaintiff has reposed in the
confidant. It does not aim at protecting individuals from emotional distress
and embarrassment caused by an unauthorized use.
4.18 The person who is
able to sue for breach of confidence is the one who initially gave the
information in confidence, or on whose behalf the information was received. The
mere fact that a person has an interest in maintaining the secrecy of the
information does not of itself give him a right to sue. The law of confidence
does not impose an obligation of confidence by reason only of the use of
unlawful or improper means to obtain the
information.[173] In the absence
of any special relationship of confidence between the person who wishes to keep
the information secret and the person who has obtained the information, an
unauthorized disclosure of information obtained by the latter would seem not to
constitute a breach of confidence. Hence, if A imparts information about B in
confidence to C, B cannot maintain an action for breach of confidence if C
publishes the information without A’s authority. This will be the case
even though the publication is objectionable and
offensive.
4.19 Furthermore, a person who acquires personal information
without actual or constructive knowledge of its confidential character may
disclose or use the information even though it is in fact subject to an
obligation of confidence. The action is therefore not normally available to
those who suffer because of unwanted publicity.
4.20 There is an infringement of copyright if a person copies or
publishes a private letter or family photograph the copyright of which is owned
by another.[174] There are,
however, limitations to protecting privacy under the law of copyright. An
action for infringement of copyright is only actionable at the suit of the owner
of the copyright. A person whose photograph has been taken by another person
cannot bring an action for infringement of copyright if the photograph is
reproduced or published by that other person without his authority. The only
exception is that the person whose privacy has been invaded is also the person
who has commissioned the work and such reproduction or publication constitutes
“exploitation” of the commissioned work “for any purpose
against which he could reasonably take
objection”.[175] In cases
where the publication of a private photograph in magazine or newspaper amounts
to an invasion of privacy, the photograph is rarely a commissioned work.
Furthermore, there is no copyright in a person’s name, likeness or image;
nor is there any copyright in information as such. Thus a person may read a
private letter and then reproduce the information contained in the letter in his
own words without infringing the copyright of the author of the
letter.
4.21 In Oriental Press Group Ltd v Apple Daily
Ltd,[176] the plaintiff took a
photograph of a popular entertainer Faye Wong without her consent in the baggage
claim area of an airport in Beijing. Godfrey JA, delivering the judgment of the
Court of Appeal, noted that: “Public sentiment has turned, or seems to be
turning, against those who are guilty of invasion of the privacy of public
figures by taking their photographs on private occasions without their consent
and then selling those photographs for large sums which reflect the cupidity of
the publishers and the prurience of their readers.” He suggested that the
court may have to hold that the protection of copyright will not be extended to
photographs of public figures taken on private occasions without their consent
if the legislature fails to introduce measures to protect the privacy of public
figures.[177]
4.22 A contract may expressly or impliedly restrict the use or
disclosure of personal information furnished by a party to the contract. In
Pollard v Photographic
Company,[178] a photographer was
restrained from using the plaintiff’s photograph for advertising purposes.
The court held that it was an implied term of the contract that prints taken
from the negative of photographs taken at the defendant’s shop were not to
be used for an unauthorized purpose. It is open to the person who has been
surreptitiously photographed by hotel staff when staying at a room in a hotel
that it is an implied term of the contract with the hotel that the room is free
from surveillance by his
staff.[179]
4.23 A person who by extreme and outrageous conduct causes severe
emotional distress to another is liable for such emotional distress, provided
that bodily harm results from it. The action for intentional infliction of
emotional distress is based on the principle laid down in Wilkinson v Downton.
The plaintiff in this case became ill as a result of being frightened by false
news about her husband, which she had been told by the defendant as a practical
joke. Wright J said:
“The defendant has wilfully done an act calculated to cause harm to the plaintiff - that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act.” [180]
4.24 The
Australian court in Bradley v Wingnut Films Ltd held that the action requires a
plaintiff to establish something more than a transient reaction of emotional
distress, however initially severe. That reaction must translate into something
physical which also had a duration which was more than merely transient.
Furthermore, the plaintiff must show that the defendant had wilfully done an act
calculated to cause physical harm to the plaintiff and that the shock and
illness were natural consequences of the wrongful
act.[181] A person who
deliberately intrudes on a woman in her bath, causing her psychiatric illness,
might be liable under this
head.[182] But mere mental
suffering, although reasonably foreseeable, if unaccompanied by physical injury
or psychiatric illness, is not a basis for a claim for
damages.[183]
4.25 The
action would not assist the individual aggrieved by an invasion of privacy in
the majority of cases. Although the surreptitious use of a recording device in
a person’s premises and the publication of the details of his private life
may cause him embarrassment or annoyance, it is only in extreme circumstances
that physical or mental harm would ensue. Another difficulty is that the
individual aggrieved by an invasion of privacy is rarely able to prove that the
wrongful conduct was calculated to cause him physical harm or psychiatric
illness; he is normally able to show that it is negligent at most.
4.26 Defamation consists in the publication of a false statement
which tends to damage the reputation of another without lawful justification.
It might, for example, be libellous if the defendant took a photograph of a
person who wished to be let alone and published a photograph of him in fancy
costume.[184] The plaintiff in
the following circumstances was found to have a cause of action in defamation: a
dental advertisement showing a picture of a young actress as if she had no
teeth;[185] a photograph in a
newspaper of a person on a hot day, with a caption implying that his feet would
smell so badly at the end of the day that they would need to be soaked in the
defendant’s disinfectant;[186]
an advertisement showing the face of the plaintiff, who did not seek
publicity, mounted upon the body of a man dressed in a foppish manner, carrying
a cane and
eye-glass.[187]
4.27 The
primary purpose of defamation is to protect an individual’s reputation.
It fails to afford a remedy where the offending statement or representation is
true.[188] However, the object of
the law of privacy is not “to prevent inaccurate portrayal of private
life, but to prevent its being depicted at
all”.[189] The law of
defamation is therefore marginally relevant to the protection of individual
privacy. It is true that the individual may be portrayed in a favourable light.
But this fact of itself should not preclude him from seeking recovery if the
matter publicised is offensive and objectionable to a reasonable person. In the
“Spycatcher” case which involved a breach of confidence, Lord Keith
observed that:[190]
“Information about a person’s private and personal affairs may be of a nature which shows him up in a favourable light and would by no means expose him to criticism. The anonymous donor of a very large sum to a very worthy cause has his own reasons for wishing to remain anonymous, which are unlikely to be discreditable. He should surely be in a position to restrain disclosure in breach of confidence of his identity in connection with the donation. So I would think it a sufficient detriment to the confider that information given in confidence is to be disclosed to a person whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way.”
We
think that the same principles should also apply to privacy actions.
4.28 The court in Ratcliffe v Evans held that an action would lie for
“written or oral falsehoods, not actionable per se, or even defamatory,
where they are maliciously published, where they are calculated in the ordinary
course of things to produce, and where they do produce, actual
damage”.[191] The plaintiff
is required to prove that the statements complained of were untrue, they were
made maliciously, and that the plaintiff has suffered special damage as a
result.[192] The Younger Report
gave the example of the malicious publication in a newspaper to the effect that
X, a famous pop-singer, had commenced his noviciate with a closed order of
monks. The publication would not lower him in the esteem of right-thinking
people, but would lose him engagements and therefore income, and therefore be
actionable at his suit.[193] The
tort has been developed to protect commercial
interests.[194] An action for
malicious falsehood would not avail the person whose personal information is
accurately published in the newspaper.
4.29 One of the best cases to illustrate the failure of the common
law to protect individual privacy is Gorden Kaye v Andrew Robertson and Sport
Newspapers Ltd.[195] Mr Kaye was
a well-known actor. He suffered severe injuries to his brain and was
hospitalised in a private room which had a notice asking visitors to see a
member of the staff before visiting. The defendant journalists ignored the
notice and entered the room. Although Mr Kaye apparently agreed to talk to them
and did not object to them taking photographs inside the room, it was confirmed
at the trial that he was in no fit condition to be interviewed or to give any
informed consent to be interviewed.
4.30 The court held that in English
law there was no right to privacy and accordingly there was no right of action
for breach of a person’s privacy. Invasion of a person’s privacy,
however gross, did not of itself entitle him to relief in English law.
Glidewell LJ said that the facts of the case were a graphic illustration of the
desirability of Parliament considering whether and in what circumstances
statutory provision could be made to protect the privacy of individuals. In the
absence of a right of privacy, the plaintiff relied on the following causes of
action: (a) trespass to the person; (b) passing off; (c) libel; and (d)
malicious falsehood.
(a) Trespass to the person - The court did not accept the argument that the taking of a photograph or, indeed, the flashing of a light amounted to a battery. In any event, an injunction would not be granted to prevent the defendant from profiting from the taking of the photographs, i.e. from their own trespass.
(b) Passing off - The plaintiff failed under this head because he was not in the position of a trader in relation to his interest in his story about the accident and his recovery.[196]
(c) Libel - The plaintiff argued that the article written by the defendant implied that the plaintiff consented to giving the interview and to be photographed by the defendant. The representation was untrue and the implication in the article would have the effect of lowering him in the esteem of right-thinking people. The court held that although the article was capable of having a defamatory meaning, this was not a sufficient basis for granting an interlocutory injunction because the conclusion that the article was libellous was not inevitable.
(d) Malicious falsehood - The tort of malicious falsehood consists in the defendant maliciously publishing statements about the plaintiff which are false, and the plaintiff suffering special damage as a result. Since what was written in the article was false and it was apparent to the defendant that the plaintiff was in no condition to give informed consent, and that the plaintiff’s right to sell the story of this accident and his recovery would be seriously diminished if the defendant was able to publish their article, the court agreed to grant an injunction on this cause of action.
4.31 The
injunction granted on the basis of malicious falsehood was narrower in scope
than what was sought by the plaintiff. It afforded limited protection because
the defendant was still allowed to publish the photographs and story as long as
the paper made it clear that they were taken without the plaintiff’s
consent.
4.32 Since the courts do not recognise a right of privacy, the
interest in privacy has been protected only if another interest of an individual
which is recognised by the courts has also been violated. Although some of the
existing causes of action may incidentally afford some protection of privacy
interests, their primary focus has been the protection of an individual’s
interest in his property. By insisting upon proof of actual harm beyond insult
or hurt feelings, the courts have rendered “most of the old common law
torts irrelevant to protecting the intimate interests that may be at stake in
defence of individual
privacy.”[197] As privacy
interests are much wider in scope than the interests recognised by the existing
torts, protection of privacy by common law is not only patchy but also partial
and less than adequate. Bingham LJ cited with approval the following comment
made by Basil Markesinis:
“English law, on the whole, compares unfavourably with German law. True, many aspects of the human personality and privacy are protected by a multitude of existing torts but this means fitting the facts of each case in the pigeon-hole of an existing tort and this process may not only involve strained constructions; often it may also leave a deserving plaintiff without a remedy”.[198]
4.33 Contrary
to the position in England, the right of privacy is protected by the law of
torts in most jurisdictions in the United States. In the American case of
Barber v Time Inc,[199] the
defendant was held liable for invasion of privacy on the basis that it had
published a photograph of the plaintiff which was taken while she was confined
to a hospital bed. After referring to the law of privacy in the United States,
Leggatt LJ made the following observation in the case of Kaye v
Robertson:
“We do not need a First Amendment to preserve the freedom of the press, but the abuse of that freedom can be ensured only by the enforcement of a right to privacy. This right has so long been disregarded here that it can be recognised now only by the legislature. Especially since there is available in the United States a wealth of experience of the enforcement of this right both at common law and also under statute, it is to be hoped that the making good of this signal shortcoming in our law will not be long delayed.”[200]
4.34 We
conclude that the protection of privacy interests should not be confined to
“parasitic damages” arising out of defamation and injury to
contractual or proprietary rights.[201]
Apart from the United States, the law of many countries, including both
civil and common law jurisdictions, recognise the right of privacy in one way or
another. We explore this “wealth of experience” in some detail in
the next chapter.
[142] See D J Seipp,
“English Judicial Recognition of a Right to Privacy” (1983) 3
Oxford J of Legal Studies 325; R Wacks, Privacy and Press Freedom
(London: Blackstone Press, 1995), chapter 3; Younger Report, Appendix I; Lord
Chancellor’s Department and the Scottish Office, Infringement of
Privacy: Consultation Paper (1993), Annex A; HKLRC, Report on Reform of
the Law Relating to the Protection of Personal Data (1994), chapter
4.
[143] See HKLRC Privacy
sub-committee, Stalking - Consultation Paper (1998), chapter
2.
[144] Kaye v
Robertson [1991] FSR 62; Malone v MPC [1979] Ch
344.
[145] An interesting
development is the application of the tort of trespass to unsolicited e-mail.
In CompuServe Inc v Cyber Promotions Inc 1997 US Dist LEXIS (SD Ohio
1997), the US District Court granted the plaintiff an interlocutory injunction
to restrain the defendant from sending unsolicited e-mail to the
plaintiff’s subscribers. The court held that the defendant’s
e-mailings constituted trespass to personal property because the e-mailings
burdened the operation of the plaintiff’s network and damaged their
goodwill.
[146] Sheen v
Clegg, (1967) Daily Telegraph, 22 June; Greig v Greig [1966]
VR 376.
[147] (1986) 4 NSWLR
457, at 460. In Le Mistral Inc v Columbia Broadcasting System 402 NYS 2d
815 (1978), the court held that a trespass was committed when a television
station sent a team unannounced to the plaintiff’s restaurant to highlight
a story about unhealthy
restaurant.
[148] Gorden
Kaye v Andrew Robertson & Sport Newspapers Ltd [1991] FSR 62. In R v
Central Independent Television plc [1994] 3 WLR 20, the defendant obtained
some footage of an arrest of an alleged paedophile which took place on private
property. Although the issue of trespass was not before the court, Neill LJ
suggested at p 29 that the defendant was “entitled to publish the
programme in full, and ... there was no legal bar to prevent them from including
pictures of the place of arrest”. Cf Emcorp Pty Ltd v Australian
Broadcasting Corporation [1988] 2 Qld R 169. The court granted an
injunction on the grounds that the audio-visual material obtained by the
defendants were obtained in flagrant disregard of the plaintiff’s property
rights and at a time when the defendants were
trespassing.
[149] Harrison
v Duke of Rutland [1893] 1 QB 142. Cf P H Winfield, Privacy (1931)
47 LQR 23.
[150] Hickman v
Maisey [1900] 1 QB 752; Re Penny (1867) 7 E & B
660.
[151] Lord Camden in
Entick v Carrington (1765) 19 Howell State Tr 1029 said at 1066 that
“the eye cannot by the laws of England be guilty of a
trespass.”
[152]
Turner v Spooner (1861) 30 L J Ch 801. The court in Tapling v Jones
(1865) 11 HLC 290, at 305 held that “invasion of privacy by opening
windows” was not a wrong for which the law would give a remedy. Lord
Westbury C. said, “If A is the owner of beautiful gardens and pleasure
grounds, and B is the owner of an adjoining piece of land, B may build on it a
manufactory with a hundred windows overlooking the pleasure grounds, and A has
neither more nor less than the right, which he previously had, of erecting on
his land a building of such height and extent as will shut out the windows of
the newly erected
manufactory.”
[153]
(1937) 58 CLR 479, at 494. Cf Sports and General Press Agency Ltd v
“Our Dogs” Publishing Co Ltd [1917] 2 KB 125; Bathurst City
Council v Saban (1985) 2 NSWLR 704. A further exception to the rule that
there is no tortious conduct involved in taking a photograph of another
person’s property without his consent is the publication of photographs of
a ward of court: Re X (A Minor) (Wardship: Injunction) [1985] 1 All ER
53.
[154] [1916] 2 KB 880;
affirmed by the Court of Appeal in [1917] 2 KB 125. The landowner may prohibit
the taking of photos in his premises by making it a condition of
entry.
[155] [1978] QB
479.
[156] Section 8(1) of the
Civil Aviation Ordinance (Cap 448) provides that no action shall lie in respect
of trespass or nuisance by reason only of the flight of an
“aircraft” over any property at a reasonable height above the
ground. “Aircraft” is widely defined in Cap
1.
[157] At
488.
[158] Malone v
Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620 at
642-644.
[159] Younger Report,
Appendix I, para 13. Cf Silverman v Imperial London Hotels Ltd (1927)
43 TLR 260.
[160] Clerk
& Lindsell on Torts, (16th edn, 1989), para 24-01. A public nuisance is
a criminal offence. It is an act or omission which materially affects the
reasonable comfort and convenience of life of a section of the public. In R
v Johnson (Anthony) [1997] 1 WLR 367, the defendant made numerous obscene
telephone calls to at least 13 different women. The Court of Appeal held that
in determining whether conduct constituted a public nuisance it was necessary to
consider its cumulative effect. If cumulatively the telephone calls had
materially affected the reasonable comfort and convenience of a section of the
public, and had been so widespread in range and indiscriminate in effect that it
was not reasonable to expect one person to take proceedings on her own
responsibility, the person making such calls may be charged with the offence of
causing a public nuisance by using the telephone system to cause annoyance,
harassment, alarm and
distress.
[161]
Khorasandjian v Bush [1993] QB 727; Stoakes v Brydges [1958] QWN
5; Motherwell v Motherwell (1977) 73 DLR (3d)
62.
[162] Hubbard v
Pitt [1976] 1 QB 142.
[163]
Bernstein (Baron) v Skyviews Ltd. [1978]1 QB 479, at 489. Wacks argues
that it is hard to see how the aerial photography of a stately home invades its
owner’s “privacy”. See R Wacks, “No Castles in the
Air” (1977) 93 LQR
491.
[164] Hunter v Canary
Wharf Ltd, The Times, 25 April 1997; overruling the Court of Appeal decision
in Khorasandjian v Bush [1993] QB 727. Cf Motherwell v
Motherwell (1977) 73 DLR (3d)
62.
[165] Younger Report,
Appendix I, para 18.
[166]
Stephens v Avery [1988] 1 Ch 449. The information in question was about
the lesbian relationship of the plaintiff with a third
party.
[167] Duchess of
Argyll v Duke of Argyll [1967] 1 Ch
302.
[168] Koo Chih Ling
(Linda) v Lam Tai Hing [1994] 1 HKLR 329; Li Yau-wai, Eric v Genesis
Films Ltd [1987] HKLR 711. For a discussion of the latest development of
the law relating to breach of confidence, see R Wacks, Privacy and Press
Freedom (London: Blackstone Press, 1995), chapter 3 (pp 48-80). The chapter
contains a comparison between the tort of breach of confidence and the American
tort of “public disclosure of private
facts”.
[169] Pollard
v Photographic Co (1889) 40 Ch D 345; Hellewell v Chief Constable of
Derbyshire [1995] 4 All ER
473.
[170] [1987] HKLR
711.
[171] [1967] Ch.
302.
[172] Attorney-General
v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 255. Laws J in
Chief Constable of Derbyshire [1995] 1 WLR 804 at 807 said: “If
someone with a telephoto lens were to take from a distance and with no authority
a picture of another engaged in some private act, his subsequent disclosure of
the photograph would, in my judgment, as surely amount to a breach of confidence
as if he had stolen a letter or diary in which the act was recounted and
proceeded to publish it. In such a case, the law would protect what might be
reasonably called a right of privacy, although the name accorded to the cause of
action would be breach of
confidence.”
[173] In
Malone v Metropolitan Police Commissioner (No 2) [1979] 1 Ch 344, Megarry
VC held that a person who overheard a telephone conversation, whether by means
of tapping or otherwise, was not under an obligation of confidence to the
parties to the conversation. However, an Australian court has held that a
person who used trade secrets acquired by improper covert means could be held
liable for breach of confidence even though there was no relationship of
confidence between the parties: Franklin v Giddings [1978] Qd R 72 (SC,
Queensland). Indeed Browne-Wilkinson VC has also suggested in Stephens v
Avery [1988] 1 Ch 449 at 456 that an injunction may be granted to protect
confidentiality on the ground that “it is unconscionable for a person who
has received information on the basis that it is confidential subsequently to
reveal that information.” It is therefore arguable that a relationship of
confidence is not a necessary element of a breach of confidence action and that
an unauthorized disclosure of personal information obtained by unlawful or
improper means is actionable at the suit of the individual concerned. See
Wacks, Privacy and Press Freedom,
59-64.
[174] An author also
has two “moral rights” under the Copyright Ordinance (Cap 528),
namely, the right to be identified as the author (section 89) and the right to
object to derogatory treatment of his work (section 92). The Ordinance does not
provide for a right not to have copies issued to the public, exhibited or shown
in public, or broadcast or included in a cable programme service. Cf
Copyright, Designs and Patents Act 1988 (UK), section
85.
[175] Under section 15 of
the Copyright Ordinance (Cap 528), the person who commissions a work has the
power to restrain “any exploitation of the commissioned work for any
purpose against which he could reasonably take
objection.”
[176] [1997]
2 HKC 525.
[177] Godfrey JA
based his opinion on the public policy grounds that no copyright can subsist in
matters which have a grossly immoral tendency. See Stockdale v Ownlyn
(1826) 5 B & C 173; Stephens v Avery [1988] Ch 449. He reasoned
that if other newspapers or periodicals could re-publish without fee a
photograph of a public figure which was taken surreptitiously without his
consent, no newspaper or periodical would pay a large sum for such photographs.
This would go some way towards reducing the incidence of invasion of privacy by
taking photographs against the wishes of the
subject.
[178] (1889) 40 Ch D
345.
[179] The Princess of
Wales was surreptitiously photographed when practising in a gymnasium. The
photographs were taken by the owner of the gymnasium and sold to a newspaper for
publication. She might have an action against the owner for breach of contract.
The Times, 9 Feb
1995.
[180] Wilkinson v
Downton [1897] 2 QB 57, 59; Janvier v Sweeney [1919] 2 KB 316,
322.
[181] Bradley v
Wingnut Films Ltd [1993] 1 NZLR 415. In Burnett v. George [1992] 1
FLR 525, the court held that the plaintiff may succeed in obtaining an
injunction restraining harassment by telephone calls only if there was evidence
that the health of the plaintiff was being impaired by molestation or
interference calculated to cause such
impairment.
[182] Example
given in Younger Report, Annex I, para
23.
[183] Alcock v Chief
Constable of South Yorkshire Police [1992] 1 AC 310; Khorasandjian v
Bush [1993] 3 WLR 476,
482H-483A.
[184] Monckton v
Ralph Dunn [1907] The Times, 30
January.
[185] Funston v
Pearson [1915] The Times, 12
March.
[186] Plumb v Jeyes
Sanitary Compounds Co Ltd [1937] The Times, 15
April.
[187] Dunlop Rubber
Co Ltd v Dunlop [1921] AC
347.
[188] “Unless a
man’s photograph, caricature or name be published in such a context that
the publication can be defamatory within the law of libel, it cannot be made the
subject-matter of complaint by action at law.” Tolley v Fry [1930]
1 KB 467, 468 per Greer
LJ.
[189] Warren and Brandeis,
218.
[190] Attorney-General
v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at
255.
[191] [1892] 2 QB 524,
532.
[192] See Defamation
Ordinance (Cap 21), section
24.
[193] Younger Report,
Annex I, para 8.
[194]
Examples are actions for “slander of title” and “slander of
goods”.
[195] [1991] FSR
62; B S Markesinis, “Our Patchy Law of Privacy - Time to do Something
about it” (1990) 53 MLR 802; P Prescott, “Kaye v
Robertson - a reply” (1991) 54 MLR
451.
[196] Markesinis argues
that the tort of passing off may be extended by relying on Sim v Heinz
[1959] 1 WLR 313. See B S Markesinis, “Our Patchy Law of Privacy -
Time to do Something about it” (1990) 53 MLR 802, at
803.
[197] Law Reform
Commission of Australia, Privacy and Intrusions (Discussion Paper No 13,
1980), 24 - 25.
[198] B S
Markesinis, The German Law of Torts (Oxford: Clarendon Press, 2nd edn,
1990), 316; cited in Kaye v Robertson, at
70.
[199] (1942) 348 Mo 1199,
159 SW2d 291.
[200] Kaye v
Robertson, at 71.
[201] G
Dworkin, “Privacy and the Press” (1961) 24 MLR 185, 187.