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Hong Kong Law Reform Commission |
5.2 Australian law does not recognise infringement of privacy as an
independent basis for civil liability. However the courts have held that if
information is obtained during a trespass by, for instance, taking photographs
or film, the court has jurisdiction to grant an injunction to prevent its
publication. Such an injunction will be granted only if publication would in
the circumstances be unconscionable, if the plaintiff will otherwise suffer
irreparable damage, and if the balance of convenience favours the grant of an
injunction.[202]
5.3 The
South Australian Privacy Bill 1973 - Two attempts had been made to enact
legislation for the creation of a general right of privacy. The first was the
South Australian Privacy Bill 1973 which provided that every person has a right
of privacy, any infringement of which should be actionable without proof of
special damage. The term “right of privacy” was defined as
“the right of a person to be free from a substantial and unreasonable
intrusion upon himself, his house, his family, his relationships and
communications with others, his property and his business affairs”. Some
specific matters were mentioned, including disclosure of facts likely to cause
distress, annoyance or embarrassment and the use of a person’s name,
identity or likeness for another’s advantage. The Bill was defeated in
the Legislative
Council.[203]
5.4 The
Tasmanian Privacy Bill 1974 - The second attempt was the Tasmanian Privacy
Bill 1974 which made it unlawful for any person to violate the privacy of an
individual or, knowing or having reasonable cause to suspect that the privacy of
any individual has been violated, to make use of that violation to his own
advantage or to the detriment of that individual. A violation of privacy under
the Bill would be a tort actionable by the individual concerned without proof of
special damage. The definition of privacy was similar to that in the South
Australian Bill. This bill was not enacted into
legislation.[204]
5.5 Law
Reform Commission of Australia - The Australian Law Reform Commission
produced in 1979 a report on unfair publication which covered defamation and
privacy.[205] The Commission was
not persuaded that it was appropriate to create a general tort of invasion of
privacy. But they found the idea of creating a specific and closely
circumscribed tort of privacy attractive. They concluded that legislation
should specify the area in which there is an undoubted claim for privacy
protection.[206] In their
opinion, only “serious, deliberate exposures of a person’s home
life, personal and family relationship, health and private behaviour”
should be made unlawful by legislation. It is reported that the recommendations
have not been implemented, in the absence of a consensus on a uniform defamation
law.
5.6 The issue of creating a general tort of privacy was also
discussed in the report on personal information and privacy published by the
Australian Law Reform Commission in 1983. The report concluded that a general
tort of interference with privacy was undesirable at that
stage.[207]
5.7 In
December 1995, the Australian Privacy Charter Council launched a charter of
privacy rights for Australians which declares that: “People have a right
to the privacy of their own body, private space, privacy of communications,
information privacy (rights concerning information about a person), and freedom
from surveillance.”[208]
5.8 Invasion of privacy per se is not a tort recognised by the
courts in Canada.[210] To
maintain an action for acts which constitute an invasion of privacy, the
plaintiff has to show that the defendant has committed some well-established
tort such as trespass, nuisance, defamation, injurious falsehood and deceit.
However, there are indications that the courts are prepared to stretch the scope
of a particular tort so as to bring within the ambit of such tort acts which
would otherwise be legitimate, on the ground that such acts amount to an
invasion of privacy of the plaintiff.
5.9 In Motherwell v
Motherwell[211] the Alberta
Court of Appeal held that the constant making of telephone calls to harass the
plaintiff’s family was an actionable nuisance. It stated that even
persons who did not have any legal or equitable interest in the land where the
nuisance was suffered would be entitled to relief on the ground that what
occurred was an invasion of privacy. Similarly, in Poole v Ragen and Toronto
Harbour Commissioners,[212]
the defendant was held liable for watching and besetting the plaintiff’s
boats. Although the technical ground of liability was nuisance, the underlying
reason for liability was that persistent and unwarranted surveillance
constituted “an affront to the dignity of any man or
woman”.
5.10 Although there is no tort of invasion of privacy as
such, the courts have ruled that there is a tort of “appropriation of
personality” at common law. This tort is actionable where “the
defendant has appropriated some feature of the plaintiff’s life or
personality, such as his face, his name or his reputation, and made use of it
improperly, i.e., without permission, for the purpose of advancing the
defendant’s own economic
interests.”[213]
5.11 Four provinces in Canada have enacted privacy legislation. They
are British Columbia, Manitoba, Newfoundland and Saskatchewan. These statutes
create the tort of “violation of privacy” which is actionable
without proof of damage. They aim at correcting the failure of the common law
to develop a general tort remedy for invasion of privacy. While the Manitoba,
Newfoundland and Saskatchewan statutes create a general tort of invasion of
privacy which includes appropriation of personality, the British Columbia
legislation creates two separate torts, namely, invasion of privacy and
appropriation of personality. Fridman observes that not many cases have been
reported on these Privacy Acts and there has been very little judicial comment
on their meaning and
scope.[214]
5.12 Invasion
of privacy is actionable in Quebec. A Quebec court held that the right to
privacy under the Quebec Charter of Human Rights and Freedoms includes two
facets: (a) the right to anonymity or to live one’s life without
interference and (b) the right to solitude. Further, it was not necessary for
the plaintiff to prove that he suffered pecuniary loss. He had to prove only
that there had been an “unjustified publication of information of a purely
personal nature”.[215]
5.13 Mainland China - The Constitution of the People’s
Republic of China stipulates that the “personal dignity” and
“residences” of citizens are inviolable and that citizens’
“freedom and privacy of correspondence” are protected by
law.[216] The General Principles
of Civil Law further provides that: “All citizens and legal persons are
entitled to the right to reputation. The personal dignity of citizens is
protected by law. The use of insults, defamatory statements and other means to
damage the reputation of citizens and legal persons is
prohibited.”[217] In the
opinion of the Supreme People’s Court, a person who uses such means as
giving publicity to the private facts of another in writing or in spoken words,
or publicly subjecting the personality of another to ridicule by the fabrication
of facts, or using insults or defamatory statements to damage the reputation of
another, should be liable for infringement of the right to reputation if his
conduct has caused special
damage.[218] The Supreme
People’s Court further advises that a person who publishes the private
facts of an individual, or gives publicity to the same in writing or in spoken
words, without the permission of that individual so that his reputation has been
damaged may be tried for infringement of the right to
reputation.[219]
5.14 Taiwan
- The Civil Code in Taiwan protects the right of
personality.[220] The right seeks
to protect the intrinsic value and dignity of man and to maintain the integrity
and inviolability of his personality. It includes the right to life, physical
body, health, freedom, reputation, name, privacy, likeness, secrecy and honour.
Anyone whose right of personality is infringed by another may apply to the court
for relief.
5.15 Article 1382 of the Civil Code provides that any person who by
his fault causes damage to another is under an obligation to repair that damage.
The claimant is required to show that the victim has suffered harm. This has
been taken to include non-pecuniary harm such as injury to human feelings. The
courts have characterised as “fault” the publication of confidential
letters, the dissemination of facts about a person’s private life, or the
unauthorized use of a person’s
name.[222]
5.16 In 1970 a
right of privacy was specifically created by virtue of Article 9 of the Civil
Code. The Article provides that “everyone has the right to respect for
his private life” and that the courts may grant such relief as is
appropriate to prevent or stop an invasion of privacy. No definition is given
to the concept of “private life” but it has been held to include
“any references to the plaintiff’s love life or family life and to
extend to disclosure of the private address or telephone number of a public
figure, or the revelation of an individual’s
salary.”[223] It seems that
the definition of private life extends to any fact which the plaintiff does not
wish to have revealed. In determining whether the right of privacy has been
infringed, the courts would take into account the freedom of expression and
freedom of the press.
5.17 Article 1 of the Federal Constitution of 1949 imposes on all
state authorities a duty to respect and protect “the dignity of
man”. Article 2 provides that “Everyone shall have the right to the
free development of his personality in so far as it does not infringe the rights
of others or offend against the constitutional order or the moral code.”
This general right of personality provides an alternative way of protecting the
right not to be defamed or the right to prevent the unauthorized use of a
person’s name.
5.18 In addition to the protection under the
Constitution, an invasion of privacy is actionable under paragraph 1 of Article
823 of the Civil Code. It provides:
“A person is obliged to pay compensation for either negligently or intentionally violating the life, health, freedom, property or any other right of another where:
(i) there has been an act that has violated an interest and caused damage;
(ii) the violation of the right is unlawful and not justified;
(iii) it was caused by intentional or negligent fault.”[225]
5.19 The Federal Court has held that a person’s right
to his personality is an “other right” under the paragraph. This
enables the courts to apply the law of tort against conduct injurious to human
dignity such as the unauthorized publication of the details of a person’s
private life. The courts have held it actionable to use the name of a famous
artiste in an advertisement without his consent, to publish a fictitious
interview with a well-known figure, to publish a picture which gave the
impression that the person portrayed was a murderer, or to make an inaccurate or
incomplete report in a
newspaper.[226]
5.20 Irish courts do not explicitly recognise a general right to
privacy at common law. Privacy interests are protected by a wide range of torts
such as trespass, nuisance and the equitable remedy of breach of confidence.
However, the courts have developed a constitutional right to privacy on the
basis of Article 40.3.1 of the Constitution under which the State guarantees to
respect, defend and vindicate the personal rights of the citizen. The Supreme
Court in McGee v The Attorney
General[228] held that privacy
was among the personal rights which the State guarantees in the Article.
Although two of the three judges in the majority specifically limited their
treatment of privacy to the field of marital relations, subsequent cases have
indicated that the Article affords some protection against threats to privacy
posed by interception of communications and
surveillance.[229]
5.21 The
Irish Law Reform Commission published a consultation paper on Privacy:
Surveillance and Interception of Communications in 1996. It contains a
draft Surveillance Privacy Bill which aims at protecting the privacy of the
individual from intrusive surveillance. The Paper recommends the creation of
statutory torts of invasion of privacy by means of surveillance, and disclosure
or publication of information obtained by means of privacy-invasive
surveillance.
5.22 Privacy interests were protected only if the plaintiff had a
cause of action in other heads of tortious liability. Nevertheless the courts
had indicated that they were prepared to listen to the argument that there was
in New Zealand a separate tort of invasion of personal privacy at least by
public disclosure of private facts. In interlocutory proceedings in Tucker v
News Media Ownership Ltd, the court stated that the common law may adapt the
Wilkinson v Downton principles to protect
privacy.[231] Eventually in
Bradley v Wingnut Films
Ltd,[232] the court held that
the tort of invasion of privacy formed part of the law of New Zealand. If the
tort is to be established, there must be public disclosure of private facts and
the disclosure must be one which would be highly offensive and objectionable to
a reasonable person of ordinary sensibility. It appears that there is a trend
on the part of New Zealand courts towards recognizing a right to privacy.
5.23 The court in Kaye v
Robertson[233] held that there
was no right of action for breach of privacy. Actions for infringement of
privacy have to be founded on recognised heads of tortious liability. While
protection from physical intrusion is to a certain extent afforded by the torts
of trespass and nuisance, information privacy is mainly safeguarded by the Data
Protection Act 1984 as well as the law of defamation, copyright and breach of
confidence. The protection as is available at common law is patchy and
ineffective.[234]
5.24 As
early as in 1931, Winfield proposed that the “offensive invasion of the
personal privacy of another” should be recognised as an independent
tort.[235] The following is an
outline of the legislative proposals made in the United Kingdom for the better
protection of individual privacy.
1961 Lord Mancroft presented a Right of Privacy Bill in the House of Lords in February 1961. The object of the Bill was to protect a person from unjustifiable publication relating to his private affairs. It was given a Second Reading but withdrawn at the end of the debate to go into Committee.
1967 Alexander Lyon presented another Privacy Bill in February 1967. The Bill was introduced in the House of Commons under the Ten-minute Rule. It was given its First Reading but made no further progress.
1969 Brian Walden presented a Privacy Bill in November 1969. It was withdrawn after Second Reading debate upon the Government undertaking to carry out a detailed examination of the subject of privacy. The Bill was identical to that produced by JUSTICE in 1970.
1970 The Committee on Privacy of “JUSTICE”, the British Section of the International Commission of Jurists, published a report on Privacy and the Law in January 1970.[236] They concluded that legislation ought to create a general right of privacy applicable to all situations. The report included a draft Right of Privacy Bill.
1972 The National Council for Civil Liberties (“NCCL”) submitted a draft Right of Privacy Bill to the Younger Committee for consideration. The Younger Report concluded that, on balance, there was then no need for a general law of privacy. However, it recommended the creation of a tort of unlawful surveillance which should be actionable without proof of actual damage. It also suggested that it should be a tort to disclose or use information which the discloser knows or ought to have known was obtained by illegal means. The recommendation on the tort of unlawful surveillance was not implemented but the proposal on disclosure of information obtained by illegal means was accepted by the English Law Commission as one of the recommendations in its report on breach of confidence.
1987 William Cash presented a Privacy Bill in 1987 which was virtually identical to the Walden and JUSTICE Bills. It did not receive a Second Reading.
1989 John Browne introduced the Protection of Privacy Bill. It sought to confer remedies for the unauthorized public use or public disclosure of private information rather than a general right for the protection of privacy. Although it passed Committee stage, it was withdrawn at Report stage when the Government announced that it was appointing a committee, to be chaired by David Calcutt QC, to consider what measures were needed to give further protection to individual privacy from the activities of the press.
1989 Lord Stoddart introduced a Bill which was identical to the Browne Bill. It did not receive a Second Reading.
1990 The Calcutt Committee published a report entitled Report of the Committee on Privacy and Related Matters in 1990.[237] It concluded that an overwhelming case for then introducing a statutory tort of infringement of privacy had not been made out.
1993 Sir David Calcutt QC concluded in his Review of Press Self-Regulation published in January 1993 that press self-regulation under the Press Complaints Commission had not been effective.[238] He recommended that the Government should give further consideration to the introduction of a new tort of infringement of privacy.
1993 The National Heritage Committee of the House of Commons published a report on Privacy and Media Intrusion in March 1993.[239] They were dissatisfied with the way the Press Complaints Commission had dealt with the complaints and recommended a Protection of Privacy Bill with both civil and criminal provisions. The first part of the Bill listed various civil offences leading to a tort of infringement of privacy.
1993 In July 1993, the Lord Chancellor’s Department and the Scottish Office issued a consultation paper on Infringement of Privacy (“the UK Consultation Paper”).[240] The paper dealt with the question whether there should be a general civil wrong of infringement of privacy.
1995 The UK Government’s response to the National Heritage Committee Report and the 1993 Consultation Paper was contained in a paper entitled Privacy and Media Intrusion published in July 1995.[241] The paper revealed that the Government strongly preferred the principle of self-regulation. It concluded that statutory intervention in this area would be a significant development of the law and the Government then was not convinced that the case had been made out for it.
1996 Sir Patrick Cormack presented the Protection of Privacy (No. 2) Bill in the House of Commons in March 1996. The object was to create an offence to sell or buy tapes or transcripts of private conversations without the consent of both parties.
1998 The UK Government introduced the Human Rights Act 1998 which incorporates the European Convention on Human Rights into English law.
5.25 The position in Scotland is slightly different from that in
England and Wales. Scottish decisions seem to be moving towards the recognition
of an explicit right of action for invasions of privacy. Seipp summarises the
position as follows:
“In addition to warrantless searches and the activities of peeping Toms, police surveillance of a dwelling-house without probable cause has been considered to give rise to a cause of action. Scottish courts based their refusal to allow publication of private letters on the grounds of injury to reputation and to feelings, rather than on the property grounds maintained by English courts ... . Scottish law carried privacy protection furthest in opposition to press intrusions, settling by the mid-nineteenth century that damages could be awarded for publications of truthful information about ‘some old and generally forgotten immoral act or act of impropriety’ or ‘some physical deformity or secret defect’. Personal ridicule was only allowed ... ‘so long as the privacy of domestic life is not invaded’. ... These cases proceed on the broad principle of the actio injuriarum, which affords remedies for affronts to reputation, honour, and feelings. Privacy has fitted well within this scheme of values in Scottish law.”[242]
5.26 Although both the Constitution and the law of tort in the United
States protect an individual’s right to privacy, privacy as guaranteed by
the Constitution is different in nature from privacy as protected by the law of
torts. While constitutional privacy rights protect against acts by the
Government, tort law privacy rights primarily protect against acts by private
parties. The common law right operates as a control on private behaviour, while
the constitutional right operates as a control on
Government.[243]
5.27 Constitutional
privacy affords protection against the following types of
intrusion:[244]
a) Government intrusion into a person’s mind and thought processes and the related right to control information about oneself.[245]
b) Government intrusion into a person’s zone of private seclusion. For example, the Government is precluded from unreasonable search and seizure within that zone of seclusion.
c) Government intrusion into a person’s right to make certain personal decisions in relation to marriage, procreation, contraception, family relationships and child rearing and education.
5.28 The development of the law of privacy in the United States was
influenced by the seminal article written by Warren and Brandeis in 1890. They
argued that common law implicitly recognised the right to privacy by drawing
upon English cases of defamation, property, breach of copyright, and breach of
confidence. They concluded that “the protection afforded to thoughts,
sentiments, and emotions, expressed through the medium of writing or of the
arts, so far as it consists in preventing publication, is merely an instance of
the enforcement of the more general right of the individual to be let
alone”, and that “the existing law affords a principle which may be
invoked to protect the privacy of the individual from invasion either by the too
enterprising press, the photographer, or the possessor of any other modern
device for recording or reproducing scenes or
sounds.”[246] The ideas
propounded in the article were subsequently taken up and developed by the courts
in most jurisdictions in the United States.
5.29 The law of privacy as
developed in the United States comprises four distinct kinds of invasions of
four different interests of the individual.
(a) Invasion of privacy
by intrusion upon the plaintiff’s solitude or seclusion
The tort of “intrusion upon seclusion” consists of intrusion (physical or otherwise) upon the solitude or seclusion of another or his private affairs or concerns which is highly offensive to a reasonable person. This tort requires proof of an unauthorized intrusion or prying into the plaintiff’s seclusion which is offensive to a reasonable person as to a matter which the plaintiff has a right to keep private.
(b) Invasion of privacy based on public disclosure of private facts
The “disclosure” type of tort of invasion of privacy consists of publicity of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation. It is triggered by the public disclosure of private facts in which the disclosure is highly offensive to a reasonable person. The facts disclosed are true, and no element of falsity is involved.
(c) Invasion of privacy by appropriation of name or likeness
The appropriation form of invasion of privacy consists of appropriation of the plaintiff’s name or likeness for the defendant’s benefit or advantages. It usually involves the unauthorized commercial use of a person’s identity which causes injury to dignity and self-esteem with resulting mental distress damages.[247] The plaintiff may seek a remedy under this head if his name or picture, or other likeness, has been used without his consent to advertise the defendant’s product, or to add lustre to the name of a company, or for any other business purposes.
(d) False light in the public eye
It consists of publicity which places the plaintiff in a false light in the public eye. Examples of this form of invasion include publicity attributing to the plaintiff some opinion, such as spurious books or articles; the unauthorized use of the plaintiff’s name on a petition, or as a candidate for office; and the use of the plaintiff’s picture to illustrate an article with which he has no reasonable connection, with the implication that such a connection exists.[248] The false light must be something that would be objectionable to the ordinary reasonable person in the circumstances. Further, the invasion must be intentional such that the defendant must knew or had reason to know that the invasion would be highly offensive and would cause severe mental stress. The false light is more often than not a defamatory one but the making of defamatory statement is not an element of this tort.
5.30 The experience in other jurisdictions shows that although the
difficulties of defining and drafting a general tort of privacy may be enormous,
drafting specific torts which address the specific privacy interests should be
neither formidable nor
intractable.[249] We examine in
the next chapter whether a general tort of privacy should be created by statute
in Hong Kong.
[202] Lincoln Hunt
Australia Pty Ltd v Willesee [1986] 4 NSWLR
457.
[203] Law Reform
Commission of Australia, Unfair Publication: Defamation and privacy
(Report No. 11, Canberra, 1979), para
221.
[204] Law Reform
Commission of Australia, Unfair Publication: Defamation and privacy
(Report No. 11, Canberra, 1979), para
222.
[205] Part
III.
[206] Para
234.
[207] Law Reform
Commission of Australia, Privacy (Report No 22, Canberra, 1983), vol. 2,
paras 1075 - 1081.
[208] The
text of the Australian Privacy Charter is reproduced in G Greenleaf,
“Information Technology and the Law” (1995) 69 ALJ
90.
[209] L D Rainaldi (ed),
Remedies in Tort, (Toronto: Carswell, 1987), vol 3, chapter 24 (by A E
Cullingham); G H L Fridman, The Law of Torts in Canada, (Toronto:
Carswell, 1990), vol 2, chapter
9.
[210] Victoria Park
Racing and Recreational Grounds Co v Taylor (1937), 58 CLR
479.
[211] (1976) 73 DLR (3d)
62.
[212] (1958) OWN
77.
[213] G H L Fridman,
194.
[214] He suggested that
it was an error to restrict jurisdiction over this cause of action to the
superior courts: above, p
201.
[215] See L D
Rainaldi, p 24-13, para
6.1.
[216] Articles 38 -
40.
[217] Article
101.
[218] Supreme
People’s Court’s Tentative Opinion on the Enforcement of the PRC
General Principles of Civil Law, 26 January 1988, para
140.
[219] Supreme
People’s Court’s Answers to Questions about the Trial of Reputation
Cases, 7 August 1993, Question
7.
[220] Articles 18, 184
& 195.
[221] Law Reform
Commission of Ireland, Consultation Paper on Privacy: Surveillance and the
Interception of Communications (1996), paras 9.2 - 9.4; Report of the
Committee on Privacy and Related Matters (“Calcutt Report”),
(London, Cm 1102, 1990), paras 5.11 - 5.15; Younger Report (1972), 308 -
309.
[222] Konrad Zweigert
& Hein Kotz, Introduction to Comparative Law, (Oxford: Clarendon
Press, 2nd rev edn, 1987) vol. II,
387.
[223] R Redmond-Cooper,
“The Press and the Law of Privacy” (1985) 34 ICLQ 769, at
771.
[224] Law Reform
Commission of Ireland, (1996), paras 9.5 - 9.8; Report of the Committee on
Privacy and Related Matters (“Calcutt Report”), (London, Cm
1102, 1990), paras 5.16 - 5.21; B S Markesinis & S F Deakin, Tort
Law (Oxford: Clarendon Press, 3rd edn, 1994),
608.
[225] Quoted in Law
Reform Commission of Ireland (1996), para
9.5.
[226] Konrad Zweigert
& Hein Kotz, Introduction to Comparative Law, (Oxford: Clarendon
Press, 2nd rev edn, 1987) Vol. II,
384.
[227] B M E McMahon &
W Binchy, Irish Law of Torts, (Dublin, Butterworths (Ireland), 2nd edn,
1990), chapter 37; Law Reform Commission of Ireland, Consultation Paper on
Privacy: Surveillance and the Interception of Communications (1996),
chapters 3 & 4.
[228]
[1974] IR 284.
[229] Law
Reform Commission of Ireland (1996), paras 3.5 -
3.8.
[230] S M D Todd (ed),
The Law of Torts in New Zealand (Sydney: The Law Book Co Ltd, 1991),
chapter 18; J Katz, “Sex, Lies, Videotapes and Telephone Conversations:
The Common Law of Privacy from a New Zealand Perspective” [1995] 1 EIPR
6.
[231] [1986] 2 NZLR 716, at
733. The Wilkinson v Downton principles are stated in the following
terms: “One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is liable for such
emotional distress, provided that bodily harm results from it”:
Restatement, 2d, Torts, §
46.
[232] [1993] 1 NZLR 415,
423.
[233] [1991] FSR 62,
CA.
[234] See Chapter
4.
[235] P H Winfield,
“Privacy” (1931) 47 LQR 23, at
41.
[236] JUSTICE, Privacy
and the Law (London, Stevens and Sons,
1970).
[237] Report of the
Committee on Privacy and Related Matters, (London, Cm 1102, 1990).
[238] D Calcutt, Review of
Press-Regulation (London, Cm 2135,
1993).
[239] National Heritage
Committee, Privacy and Media Intrusion (London: HMSO, 294-I,
1993).
[240] Lord
Chancellor’s Department & the Scottish Office, Infringement of
Privacy - Consultation Paper
(1993).
[241] Department
of National Heritage, Privacy and Media Intrusion - The Government’s
Response (London, Cm 2918, 1995).
[242] D J Seipp,
“English Judicial Recognition of a Right to Privacy” (1983) 3 Oxford
J of Legal Studies 325, at 366 -
367.
[243] J T McCarthy,
The Rights of Publicity and Privacy (Clark Boardman Callaghan, 1994),
§ 5.7[B].
[244] J T
McCarthy, § 5.7[C].
[245]
“The disclosure strand of the [constitutional] privacy interest ...
includes the right to be free from the government disclosing private facts about
its citizens and from the government inquiring into matters in which it does not
have a legitimate and proper concern.” See Ramie v City of Hedwig
Village, Texas, 765 F2d 490, 492 (5th Cir 1985), quoted in J T McCarthy,
§ 5.7[C].
[246] S D
Warren and L D Brandeis, at 205 -
206.
[247] J T McCarthy,
§5.8.
[248] W P Keeton
(ed), Prosser and Keeton on Torts (Minn, St Paul, West Publishing Co, 5th
edn, 1984), p 863 et
seq.
[249] B S Markesinis,
“Our Patchy Law of Privacy - Time to do Something about it”
(1990) 53 MLR 802, at 807; B S Markesinis, “The Calcutt Report Must
Not be Forgotten” (1992) 55 MLR 118. Markesinis said that the type
of facts litigated in the Kaye case had led to liability (in many
instances both criminal and civil) in many
countries.