|
Hong Kong Law Reform Commission |
4.1 We have reviewed the law of privacy in Australia, Austria, Brazil, Canada, Mainland China, Denmark, England, Estonia, France, Germany, Hungary, Ireland, India, Italy, Lithuania, Macao, The Netherlands, New Zealand, Norway, The Philippines, Russia, South Africa, South Korea, Spain, Taiwan, Thailand and the United States. Their experience is instructive and has shaped some of our proposals in this Report.
4.2 It has long been considered that the 1937 High Court decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[227] was authority for the proposition that there was no common law right to privacy in Australia which could be enforced by the courts. Latham CJ stated that "however desirable some limitation upon invasions of privacy might be, no authority was cited which shows that any general right of privacy exists."[228] This case has stalled the development of any tort of infringement of privacy by the Australian courts. Australian common law has therefore protected privacy as part of its protection of other interests. A person seeking relief for infringement of privacy must fit within established forms of action that were not designed to protect privacy. This has resulted in the distortion of common law principles in areas such as defamation and breach of confidence.[229] Although the protection of personal data under the Privacy Act 1988 (Commonwealth) has recently been extended to the private sector, the Act does not cover the journalistic activities of the media and other privacy interests which do not fall within the Act's ambit.
4.3 However, in 2001, the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[230] queried whether the decision in Victoria Park was authority for the proposition that there was no tort of invasion of privacy in Australia. Although Gleeson CJ was cautious about "declaring a new tort of the kind for which the respondent contends", he stated that "The law should be more astute than in the past to identify and protect interests of a kind which fall within the concept of privacy".[231] The Court referred to US law and considered that the development by the courts in other common law jurisdictions of a common law action for invasion of privacy was useful in developing Australian privacy law. Individual members of the Court have also elucidated certain matters that would constitute an unwarranted invasion of privacy:
"Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private."[232]
"The remaining categories, the disclosure of private facts and unreasonable intrusion upon seclusion, perhaps come closest to reflecting a concern for privacy ‘as a legal principle drawn from the fundamental value of personal autonomy', the words of Sedley LJ in Douglas v Hello! Ltd."[233]
4.4 Relying on the observations made by the Justices in Lenah's case, the District Court of Queensland in Grosse v Purvis[234] held that there could be a right of action for damages based on an individual's right to privacy. For the purposes of the case before him, the judge expressed the view that the essential elements of the cause of action would be:
"(a)a willed act by the defendant,
(b)which intrudes upon the privacy or seclusion of the plaintiff,
(c)in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities,
(d)and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do."[235]
4.5 The Australian Law Reform Commission produced in 1979 a report on unfair publication which covered defamation and privacy.[236] 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 invasion of privacy attractive. They concluded that legislation should specify the area in which there is an undoubted claim for privacy protection.[237] 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. The recommendations have not been implemented, in the absence of a consensus on a uniform defamation law.[238]
4.6 In 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."
4.7 Pictures of individuals are protected from public disclosure under section 78(1) of the Copyright Act 1936, which provides that:
"Images of persons shall neither be exhibited publicly, nor disseminated in any other way in which they are made accessible to the public, where the legitimate interests of the person in question or, in the event that they have died without having authorised or ordered publication, of a close relative would be injured."
The accompanying text would be taken into account in determining whether the publication of a person's picture violated his "legitimate interests".
4.8 Section 7 of the 1981 Media Act[240] further prohibits disclosures about a person's intimate sphere (sexual life, health, family relations) when they imply an undesired exposure to the public in the absence of a strong public interest defence. The identities of victims of crime and persons suspected of having committed, or have been convicted of, an offence are specifically protected by section 7a:
"(1)Where publication is made, through any medium, of a name, image or other particulars which are likely to lead to the disclosure to a larger not directly informed circle of people of the identity of a person who
1. has been the victim of an offence punishable by the courts, or
2. is suspected of having committed, or has been convicted of, a punishable offence,
and where the legitimate interests of that person are thereby injured and there is no predominant public interest in the publication of such details on account of the person's position in society, of some other connection with public life, or of other reasons, the victim shall have a claim against the owner of the medium (publisher) for damages for the injury suffered. …."
The legitimate interests of the victim shall in any event be injured if the publication, in the case of subsection (1)1, is such as to give rise to an interference with the victim's strictly private life or to his exposure; or, in the case of subsection (1)2, relates to a juvenile or to a minor offence or may substantially prejudice the victim's advancement.
4.9 A proposal to introduce into the Austrian Civil Code a new claim for damages caused by unlawful privacy intrusions was drafted by the Department of Justice in 2002. Individuals would also have a right to claim a minimum of EUR1,000 for pain and suffering or other immaterial loss under the proposal. The draft legislation has already been introduced in Parliament but will have to be reintroduced after the new elections.[241]
4.10 Article 5 of the 1988 Constitution of Brazil provides that "the privacy, private life, honour and image of persons are inviolable, and the right to compensation for property or moral damages resulting from their violation is ensured." The Brazilian Civil Code, effective from January 2003, provides further protection by declaring that "the private life of an individual is natural and inviolable". The Court, at the request of an individual, must adopt measures to protect against any actions to the contrary.[242]
4.11 Charter of Rights and Freedoms - Neither the Constitution nor the Charter of Rights and Freedoms contains any express provisions relating to privacy. However, in interpreting section 8 of the Charter which grants the right to be secure against unreasonable search or seizure, the courts have recognised an individual's right to a reasonable expectation of privacy.
4.12 Common law - Invasion of privacy per se is not a tort recognised by the courts in Canada. 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 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.
4.13 In Motherwell v Motherwell,[244] 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 had occurred was an invasion of privacy. Similarly, in Poole v Ragen and Toronto Harbour Commissioners,[245] 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". The Court of Appeal of Prince Edward Island also commented that "the courts in Canada are not far from recognising a common law right of privacy, if they have not already done so".[246] Indeed, a few plaintiffs in Ontario have been awarded damages in actions for invasion of privacy.[247] Nevertheless, Canadian appellate courts have yet to make a conclusive determination and the status of the common law tort of invasion of privacy remains unclear.[248] This is, perhaps, the reason why four common law provinces have enacted legislation to create such a tort.
4.14 Although the tort of invasion of privacy has not been firmly established in Canada, the courts there 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 or name) without permission for economic gain.[249]
4.15 Privacy legislation - Five provinces in Canada have legislated to create a tort of invasion of privacy. Four of these - British Columbia, Manitoba, Newfoundland and Saskatchewan - are common law provinces.[250] These provinces 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. In British Columbia, Saskatchewan and Newfoundland, it is only where a person "wilfully and without a claim of right" violates the privacy of another that he commits the tort. In Manitoba, the expression is "substantially, unreasonably and without claim of right". Further, while the Manitoba, Newfoundland and Saskatchewan statutes create a general tort of invasion of privacy which covers appropriation of personality, the British Columbia legislation creates two separate torts, namely, invasion of privacy and appropriation of personality. Not many cases have been reported on these Privacy Acts and there has been very little judicial comment on their meaning and scope. One of the reasons is that the jurisdiction over this cause of action is restricted to the superior courts. Another reason might be that Canada has not yet experienced the phenomenon of the tabloid press or paparazzi to the same extent as the US and many Western European countries.[251]
4.16 Quebec - The fifth province which has a statutory tort of invasion of privacy is Quebec, where the remedy originally evolved through interpretation of general provisions of civil liability in the former Civil Code, but has now been expressly included in the new Civil Code of Quebec. Section 35 of the amending Act provides that every person has a right to the respect of his reputation and privacy, and that no one may invade the privacy of another person except with the consent of the person or his heirs or unless it is authorised by law. Section 36 then identifies the following acts as particular instances of invasion of privacy:
· entering a person's dwelling or taking anything therein;
· intentionally intercepting or using private communications;
· appropriating or using a person's voice or image while the person is in private premises;
· observing a person in his private life by any means;
· using a person's name, image, likeness or voice for a purpose other than the legitimate information of the public; and
· using a person's correspondence, manuscripts or other personal documents.[252]
4.17 Section 5 of the Quebec Charter of Human Rights and Freedoms also provides that every person has a right to respect for his private life. This provision is directly enforceable between citizens. In Gazette v Valiquette, Michaud CJQ, speaking for a unanimous panel of the Quebec Court of Appeal, held that the right comprises "a right to anonymity and privacy, a right to autonomy in structuring one's personal and family life, and a right to secrecy and confidentiality".[253] This view was subsequently endorsed by the Supreme Court of Canada, which held that section 5 of the Charter protects, among other things, a narrow sphere of personal autonomy within which decisions relating to choices that are of a fundamentally private or inherently personal nature are made.[254] It is on this basis that the Supreme Court further held that the right to privacy guaranteed by the Charter must include the ability to control the use made of one's image, since the right to one's image is based on the idea of individual autonomy, that is, on the control each person has over his identity.[255]
4.18 New Brunswick - The Minister of Justice introduced Bill 23, a proposed Privacy Act, to the Legislative Assembly in December 2000. The Bill has been referred to the Law Amendments Committee for review before final decisions in relation to its enactment are taken. The Bill is similar to the existing four Privacy Acts in Canada.[256] After declaring in section 1 that an invasion of an individual's privacy is a tort, section 2 provides that an act is an invasion of privacy if "(a) it unduly intrudes into the personal affairs of an individual or into his or her activities, whether in a public or a private place, or (b) it gives undue publicity to information concerning an individual".[257] Sections 3 and 4 of the Bill then provide, respectively, examples of conduct that may amount to an invasion of privacy[258] and a list of the situations in which conduct will not be an invasion of privacy.
4.19 Uniform Privacy Act - In 1994, the Uniform Law Conference of Canada adopted the Uniform Privacy Act. The Act draws upon and improves the existing provincial statutes. The key elements of the Act are as follows:
(i) an open-ended statement that violation of the privacy of an individual is a tort that is actionable without proof of damage; the Act does not contain a general description or definition of what a violation of privacy is;
(ii) a list of specific activities that will "in the absence of evidence to the contrary" be considered to be a violation of privacy, including:
(a)auditory or visual surveillance of the individual or the individual's residence or vehicle by any means, including eavesdropping, watching, spying, besetting and following, whether the surveillance is accomplished by trespass or not;
(b)listening to or recording a conversation in which the individual participates, or listening to or recording a message to or from the individual that passes by means of telecommunications, by a person who is not a lawful party to the conversation or message;
(c)publication of letters, diaries or other personal documents of the individual;
(d)dissemination of information concerning the individual that has been gathered for commercial or governmental purposes if (i) the dissemination is contrary to a statute or regulation, or (ii) the information was provided by the individual in confidence, and the dissemination is made for a purpose other than the purpose for which the information was provided.
(iii) a list of defences, including (a) the plaintiff consented to the activity; (b) the defendant acted in lawful defence of person or property; (c) the activity was authorised or required by law; (d) the defendant was lawfully investigating an offence; (e) the defendant's action was reasonable, having regard to any relationship, domestic or otherwise, between the parties; (f) the defendant neither knew nor reasonably should have known that his act would violate the privacy of any individual; (g) there were reasonable grounds for believing that the publication was in the public interest; and (h) the publication was privileged under the law relating to defamation;
(iv) a provision specifying that a court may do one or more of the following: (a) award damages; (b) grant an injunction; (c) order the defendant to account for any profits arising out of the violation; (d) order the defendant to deliver up to the plaintiff all articles or documents that have come into the defendant's possession as a result of the violation; or (e) grant any other relief to the plaintiff that the court considers necessary in the circumstances.
4.20 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.[259] Article 101 of the General Principles of Civil Law further provides: "Citizens and legal persons shall enjoy the right of reputation. The personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited."
4.21 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.[260] 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.[261]
4.22 The Standing Committee of the National People's Congress is now studying the Draft Civil Code tabled on 23 December 2002.[262] The right of privacy is expressly recognised in Part 4 of the Draft Code as one of the rights falling within the ambit of the right to personality. It encompasses personal information, private activities and private space. In particular, the Code protects an individual from invasion of privacy by visual surveillance, aural surveillance, spying, intrusion into a person's home, interception of communications, disclosure, and unauthorised collection, storage and publication of private information.
4.23 The Danish Criminal Code guarantees the right to privacy by making it an offence: (a) to trespass into private homes and other private places; (b) to obtain access to private papers; (c) to use mechanical devices to eavesdrop on private conversations or meetings; (d) to take photographs of people when on any private property; (e) to spy on people on any private property with telescopes, binoculars, etc; (f) to communicate to another person any information or picture about another which concerns his private life; (g) to violate the peace of another by intruding on him, persistently communicating with him, or otherwise inconveniencing him, after having been warned by the police to leave him alone. It is also an offence to make use of information obtained in most of these ways. For these purposes, private property is defined as a place where the public is not admitted.[263]
4.24 There is no common law remedy for breach of privacy as such in England and Wales, whether before or after the enactment of the Human Rights Act 1998.[264] Actions for infringement of privacy have to be founded on recognised heads of tortious liability.
4.25 The following is an outline of the legislative proposals made in the UK 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. |
|
|
|
|
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 the British section of the International Commission of Jurists (JUSTICE) in 1970. |
|
|
|
|
1970 |
The Committee on Privacy of the British section of JUSTICE published a report on Privacy and the Law in January 1970.[265] 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 submitted a draft Right of Privacy Bill to the Privacy Committee chaired by Kenneth Younger. The Younger Report concluded that, on balance, there was then no need for a general law of privacy.[266] However, it recommended that surveillance by means of a technical device should be actionable in tort. It also suggested that it should be a tort to disclose or use information which the discloser knows or ought to know was obtained by illegal means.[267] |
|
|
|
|
1989 |
John Browne introduced the Protection of Privacy Bill. It sought to confer remedies for the unauthorised public use or public disclosure of private information. 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. |
|
|
|
|
1990 |
The Calcutt Committee published a report in 1990.[268] 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.[269] 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.[270] The Committee was 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").[271] The paper dealt with the question of whether there should be a general tort 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.[272] The Government 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. |
|
|
|
|
1998 |
The UK Government introduced the Human Rights Act 1998 which incorporates the European Convention on Human Rights into United Kingdom law. |
|
|
|
|
2003 |
In its report on Privacy and Media Intrusion, the House of Commons Culture, Media and Sport Committee "firmly recommended" that the UK Government should bring forward legislative proposals to clarify the protection that individuals could expect from unwarranted intrusion into their private lives.[273] The Government responded in October 2003 by saying that specific privacy legislation was "not only unnecessary but undesirable" on the following grounds:[274]
(a) various aspects of privacy are already protected by legislation (eg, the Data Protection Act;) (b) there is the over-arching impact of the 1998 Human Rights Act's provisions on the right to respect for private life; (c) the weighing of competing rights in individual cases is the quintessential task of the courts, not of Government, or Parliament; (d) the mere fact of seeking a remedy in the courts can, of itself, lead to a further loss of privacy for those not normally in the public eye; (e) the focus should be on ensuring that the press are meeting their responsibilities under the industry's Code of Practice.
|
4.26 The Human Rights Act 1998 imposes a duty on "public authorities" to act compatibly with the rights of the European Convention. A person who claims that a public authority has acted in a way which is incompatible with a Convention right may bring proceedings against the authority if he is a victim of that act. The Court may grant such relief or remedy as it considers just and appropriate if the public authority has acted unlawfully. The Act does not apply to the relations between private individuals. Most relevant to our discussion is section 12:
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. …
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code. …"[275]
4.27 In Douglas v Hello! Ltd, Brooke LJ held that the existence of section 12, coupled with clause 3 of the Code of Practice ratified by the Press Complaints Commission,[276] meant that in any case where the court is concerned with issues of freedom of expression in a journalistic, literary or artistic context, it is bound to pay particular regard to any breach of the rules set out in clause 3 of the code, especially where none of the public interest claims set out in the preamble to the code is asserted. He said:
"A newspaper which flouts Section 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression trumped by Article 10(2) considerations of privacy. Unlike the court in Kaye v Robertson, Parliament recognised that it had to acknowledge the importance of the Article 8(1) respect for private life, and it was able to do so untrammelled by any concerns that the law of confidence might not stretch to protect every aspect of private life."[277]
4.28 In regard to the application of the test set out in section 12(3), Sedley LJ had this to say:[278]
"It will be necessary for the court … to bear in mind that by virtue of s. 12(1) and (4) the qualifications set out in Article 10(2) are as relevant as the right set out in Article 10(1). This means that, for example, the reputations and rights of others - not only but not least their Convention rights - are as material as the defendant's right of free expression. So is the prohibition on the use of one party's Convention rights to injure the Convention rights of others. Any other approach to s.12 would in my judgment violate s.3 of the Act. Correspondingly, … ‘likely' in s. 12(3) cannot be read as requiring simply an evaluation of the relative strengths of the parties' evidence. If at trial, … a minor but real risk to life, or a wholly unjustifiable invasion of privacy, is entitled to no less regard, by virtue of Article 10(2), than is accorded to the right to publish by Article 10(1), the consequent likelihood becomes material under s. 12(3). Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights."
4.29 Although the court has a duty to act compatibly with Convention rights in adjudicating upon existing common law causes of action, it cannot hear free-standing applications based directly on Article 8 where the common law or statute law is deficient.[279]
4.30 Article 29 of the Constitution and Article 24 of the Civil Code guarantee the right to the protection of privacy. Gathering information on a person's private life is a breach of the right to privacy under the Code if it takes place without lawful grounds or against the person's wishes.[280]
4.31 The right to privacy is not explicitly protected in the French Constitution. But the Constitutional Council in 1995 extended the protection of "individual freedom" under Article 66 of the Constitution to the right to privacy by including the latter within the former, thereby elevating the right to privacy to the status of a constitutional right.[281] In general, the right of expression must not be used to infringe the right of privacy in the absence of a legitimate public interest to be informed.
4.32 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 feelings. The courts have characterised as "fault" the publication of confidential letters, the dissemination of facts about a person's private life, and the unauthorised use of a person's name.[282]
4.33 In 1970, a right of privacy was specifically created by virtue of Article 9 of the Civil Code. The Article provides:
"Everyone has the right to respect for his private life. Judges may, without prejudice to a right to compensation for the damage sustained, order any measures, such as seizure, attachment and others, that may prevent or cause to cease an interference with the intimate side of private life; in the event of urgency such measures may be ordered on an interlocutory application."[283]
4.34 The statute does not provide a definition of "private life" but the notion of "the intimate side of private life" was generally taken as being more restrictive than "private life". The concept of "private life" has been held to include the identity of a person (covering such matters as his name, date of birth, religion, address and telephone number) and information about a person's health, matrimonial situation, family composition, affectionate or sexual relationships, sexual orientation, and his way of life in general (such as the person's home, the goods he uses, the places where he goes and stays, the people he meets or his debts).[284] It seems that the definition of private life extends to any fact which the plaintiff does not wish to have revealed. However, before emergency measures may be ordered, the court have required that the breach of private life be of an "unbearable degree" or constitute an "unbearable interference" with private life.[285]
4.35 It is also a criminal offence to intrude upon a private place by taking a photograph or by making a recording, if the act is intentional and has intruded into the "intimacy of privacy". Keeping and using a photograph or recording so obtained constitutes a further offence. For these purposes, a private place is defined as a place where the public is not admitted, including a hotel room. Victims of these offences are entitled to seek civil remedies.[286]
4.36 The right of personality is a fundamental right guaranteed by the Basic Law of Germany. Article 1 of the Constitution imposes on all state authorities a duty to respect and protect "the dignity of man". Article 2(1) provides that "Everyone shall have the right to the free development of his personality in so far as he does not violate the rights of others or offend against the constitutional order or the moral code." These two articles jointly create the general right to one's own personality; and the right to respect for one's own private sphere of life is an emanation of this personality right. The Federal Constitutional Court held:
"The right to the free development of one's personality and human dignity safeguard for everyone the sphere of autonomy in which to shape his private life by developing and protecting his individuality. This includes the right ‘to remain alone', ‘to be oneself' within this sphere, to exclude the intrusion of or the inspection by others. This includes the right to one's likeness and to one's utterances and even more to the right to dispose of pictures of oneself. Everyone has the right in principle to determine himself alone whether and to what extent others may represent in public an account of his life or of certain incidents thereof."[287]
4.37 Privacy is also protected in the civil courts as an aspect of the right of personality under the Civil Code. Article 823(1) of the Civil Code provides that "a person who wilfully or negligently injures the life, body, health, freedom, property, or other right of another contrary to law is bound to compensate him for any damage arising therefrom." Since the Federal Supreme Court has held that a person's right to his personality is an "other right" under the paragraph, the general constitutional right to personality enjoys the protection of Article 823(1). This enables the courts to apply the law of tort against conduct injurious to human dignity such as the unauthorised publication of the intimate details of a person's private life. Other interests protected under the right to personality include: the right not to communicate medical reports without the patient's consent; the right not to record a conversation without the speaker's knowledge and consent; the right not to have private mail opened whether or not it is read; the right not to be photographed without consent; the right to a fair description of one's life; and the right not to have personal information misused by the press.[288] The courts have also 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.[289] The plaintiff may recover damages or obtain injunctive relief to restrain publication. The press laws of most German states also provide for a right of reply. This right applies to facts, but not opinion. It applies whether the allegation is flattering or derogatory.
4.38 The Federal Constitutional Court has held that both the right of personality and the right of freedom of expression are constitutional concerns essential to the liberal democratic order, with the result that neither can claim precedence in principle over the other.[290] In resolving a conflict between the two rights, the courts would take into account the "sphere of personality" involved in a particular case. As summarised by John Craig and Nicol Nolte, the German courts recognise three spheres of personality, namely, the "intimate", the "private" and the "individual" spheres:[291]
(a) The "intimate sphere" covers the "inner world of thoughts and feelings" and their expression through media such as confidential private letters or personal diaries. This sphere also protects matters which have a secret character, such as detailed health reports and sexual behaviour.[292] Because of the especially private nature of the matters involved, information falling within the intimate sphere enjoys absolute protection. Publication is prohibited unless the subject consents.[293]
(b) The "private sphere" offers an intermediate level of legal protection to personal matters which are not by their very nature of public interest, but cannot be characterised as intimate or secret. Information concerning one's family and home life, including telephone communications, would be considered "private". An infringement of the private sphere would be justified if disclosure is of special interest to the public.
(c) The "individual sphere" relates to the public, economic and professional life of the individual. It protects the occupational and social relations of a person. Information falling within this sphere is the least protected, particularly where the information relates to matters of political and public life.[294]
4.39 Craig and Nolte state that balancing is required only in cases implicating the private and social spheres. The publication of information falling within the intimate sphere will not be tolerated. Where non-intimate yet otherwise private matters are at stake, the courts will look to a variety of factors in assessing whether a privacy invasion can be justified on the basis of public interest. These factors include: (a) the value of the information published;[295] (b) the motivation underlying publication;[296] (c) the status of the subject of the publication;[297] (d) the place where the invasion of privacy takes place;[298] and (e) alternatives available which could have reduced the impact of the publication on the privacy of the individual concerned.[299] Due to the weight given to freedom of expression, the careful appraisal of the circumstances in each individual case and the application of the proportionality test, Articles 1 and 2 of the Basic Law have not proved to be a significant threat to free speech interests or press freedom.[300]
4.40 The Civil Code affords protection to the right of privacy in sections 81 (secrecy of correspondence and business secrets); 82 (private homes and premises) and 83 (computerised data processing). Section 79 also provides a remedy for spreading false facts about a person or putting true facts in a false light.[301]
4.41 There are two aspects to the right to privacy in India, which is implicit in the right to life and liberty guaranteed by Article 21 of the Constitution:[302] (a) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy; and (b) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect is violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or, for that matter, his life story is written whether laudatory or otherwise and published without his consent.[303]
4.42 The Supreme Court of India has ruled that a citizen has a right to safeguard the privacy of his own person, his family, marriage, procreation, motherhood, child-bearing and education. No one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. The position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy, or the publication is based upon public records, including court records, subject to an exception for victims of sexual assault, kidnapping, abduction or similar offences, who should not further be subjected to the indignity of their names and the circumstances of the incidents being publicised in the press.[304]
4.43 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 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 held that privacy was among the personal rights which the State guarantees in the Article.[306] 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.[307]
4.44 Recently, the Irish Law Reform Commission has recommended in its report on surveillance and interception of communications the enactment of three torts to protect privacy, namely:
(a) a tort of privacy-invasive surveillance which protects a reasonable expectation of privacy;
(b) a tort of harassment modelled on the definition of harassment provided under section 10 of the Non-Fatal Offences against the Person Act 1997; and
(c) a tort of unjustified disclosure or publication of any information, material or images obtained by or as a result of privacy-invasive surveillance or harassment.[308]
4.45 The Irish Law Reform Commission recommends that no liability should attach to disclosure that would otherwise be unlawful under its proposals if the defendant can show that the disclosure was justified by "overriding considerations of the public interest". Where it cannot be shown to have been so justified, the defendant would still have a good defence if he can show that he had reasonable grounds to believe and did bona fide believe that such disclosure was justified by overriding considerations of the public interest.[309] The Commission further recommends that in deciding whether the defence has been established, the court should have regard to all the relevant circumstances, including whether such disclosure was justified in the interests of (a) the detection or prevention of serious crime; (b) the exposure of serious illegality or other serious wrongdoing; (c) the need to inform the public on a matter of public importance; or (d) preventing the public from being misled by public conduct (including statements) of a person having or seeking a public office or function.[310]
4.46 The Italian Constitution protects the right to privacy as a component of the personality of an individual. Hence, a breach of privacy can lead to a claim under the Civil Code, which states that anyone who does an intentional or negligent act that causes unjust damage to another is liable to compensate the latter. Damage is not unjust if it is caused by the fair exercise of a right recognised by the law, such as the right to information. The Civil Code also provides that the publication of the picture of a person may be restrained if it causes prejudice to his dignity or reputation. Further, a person may apply for an injunction if the use of his name by another person causes prejudice to him.[311]
4.47 The Court of Cassation, which is the highest court in Italy, elaborated on the right to privacy in a case involving Princess Soraya. In that case, a popular news weekly acquired photographs which had been taken with a telephoto lens. The photographs showed Princess Soraya behaving affectionately with an actor inside her Roman villa. As summarised by Guido Alpa, the Court observed that the right to privacy bears three different meanings: (a) domestic privacy, which is linked to the protection of the home; (b) the realm of individual and family life, and certain forms of illicit, interpersonal intimacy in relationships, including outside the home and in correspondence; and (c) the right to require other people's discretion about one's private life. The Court held that the first definition was too restrictive, the second more reasonable, and the third too wide and general. It therefore proposed that the right be defined as "a right of protection for those situations and events that are strictly personal and relating to the family and which, even if they take place outside the domestic residence, do not have an appreciable public or social interest for third parties." As for famous persons, the Court stressed that the public interest in information about a famous person is not to be confused with the public's morbid curiosity about facts relating to that person's private life, and that there need only be an exception if there is "a real social interest or an overriding public interest".[312]
4.48 The civil laws in Lithuania provide for compensation for moral damage caused by the dissemination of unlawful or false information demeaning the honour and dignity of a person in the mass media.[313] Article 5 of the Law on the Provision of Information to the Public also protects an individual's health secrets and the right of an individual to his private life.[314]
4.49 Apart from explicitly protecting "the freedom of the person", "the homes and other premises" and "the freedom and privacy of communication" of Macao residents,[315] the Basic Law of the Macao Special Administrative Region contains a specific provision on the right to personality and the right to "the intimacy of private and family life". Such a provision is absent from the Basic Law of the Hong Kong SAR. Article 30 of the Macao Basic Law provides:
"The human dignity of Macao residents shall be inviolable. Humiliation, slander and false accusation against residents in any form shall be prohibited.
Macao residents shall enjoy the right to personal reputation and the intimacy of their private and family lives."
4.50 Apart from the Basic Law, the Civil Code of Macao affords comprehensive protection to the right of personality. The section on the right of personality contains provisions in the following areas:[316] (a) the right to the general protection of personality; (b) the right to personality of the deceased; (c) the right to the integrity of the body and mind; (d) the right to honour; (e) the right to the protection of the intimacy of private life; (f) protection of confidential correspondence; (g) protection of notes by relatives and other confidential documents; (h) protection of non-confidential correspondence; (i) the right to the secrecy of personal history; (j) protection of personal data; (k) the right to portrait; (l) the right to accuracy in personal information; and (m) the right to name and other personal identifier. Article 5 of the Publication Law also provides, inter alia, that the right to access the source of information shall cease if it involves the protection of any facts or documents about the intimacy of private and family life.
4.51 The right to privacy is guaranteed by Article 10 of the Constitution. Although the Dutch Supreme Court has held that the right to freedom of speech does not justify an infringement of privacy, the right to privacy is not absolute in the Netherlands. The Court would take all circumstances into account in a privacy action, and a journalist may show that the publication was reasonable. Privacy is also protected by Article 1401 of the Civil Code, which creates general liability for causing wrongful harm to others. This provision has been construed to cover harming people by publishing damaging private information about them in the absence of a good reason, even though the information was true.[317] Invasion of individual privacy by the media may also be dealt with under the Civil Code.[318]
4.52 It is a criminal offence to trespass into another person's home, to eavesdrop on private conversations, or to take photographs of people without their consent when they are on any private property. It is also an offence to publish a photograph so obtained. Since a civil action lies for harming another person by committing a criminal offence, the victims may pursue civil remedies against the offenders concerned.[319]
4.53 Common law - At common law, privacy interests were protected only if the plaintiff had a cause of action in other heads of tortious liability. However, there is a trend on the part of the courts towards recognising a right to privacy in New Zealand. In Tucker v News Media Ownership Ltd,[320] Jeffries J granted an interim injunction against a publisher prohibiting publication of any report which referred to the plaintiff's previous convictions. He reasoned that a person who lives an ordinary private life has a right to be left alone and to live the private aspects of his life without being subjected to unwarranted, or undesired, publicity or public disclosure. In his view, the right to privacy might provide the plaintiff a valid cause of action in New Zealand, observing that it seemed a natural progression of the tort of intentional infliction of emotional distress and in accordance with the renowned ability of the common law to provide a remedy for a wrong. The Court of Appeal did not reject the views of Jeffries J.[321] When the defendant applied to discharge the interim injunction, McGechan J stated that he supported the introduction into the New Zealand common law of a tort covering invasion of personal privacy at least by public disclosure of private facts. He did not think it beyond the common law to adapt the Wilkinson v Downton principles to significantly develop the same field and meet the same needs.[322]
4.54 In P v D,[323] Nicholson J reviewed the New Zealand authorities and concluded that the tort of breach of privacy in New Zealand encompassed public disclosure of private facts. He held that a breach in that regard should be determined by consideration of four factors:
"(a)That the disclosure of the private facts must be a public disclosure and not a private one.
(b)Facts disclosed to the public must be private facts and not public ones.
(c)The matter made public must be one which would be highly offensive and objectionable to a reasonable person of ordinary sensibilities.
(d)The nature and extent of legitimate public interest in having the information disclosed".[324]
4.55 In Hosking v Runting,[325] the defendants had taken photographs of the plaintiffs' children in the street, being pushed in their stroller by their mother. Subsequently, the second defendant informed the plaintiffs of the defendants' intention to publish the photographs. The plaintiffs commenced proceedings and pleaded that the photographing of their children and the publication of the photographs without their consent amounted to a breach of their children's privacy. The High Court held that New Zealand law did not recognise a cause of action in privacy based on the public disclosure of photographs taken in a public place. The Court of Appeal dismissed the plaintiffs' appeal but held, by three to two, that the case for a right of action for "breach of privacy by giving publicity to private and personal information" was made out. They took that view because:[326]
(a) It was essentially the position reached in the United Kingdom under the breach of confidence cause of action.
(b) It was consistent with New Zealand's obligations under the ICCPR and the UN Convention on the Rights of the Child.
(c) It was a development recognised as open by the NZ Law Commission.
(d) It was workable, as demonstrated by the experience of the NZ Broadcasting Standards Authority and similar British tribunals.
(e) It enabled competing values to be reconciled.
(f) It could accommodate interests at different levels so as to take account of the position of children.
(g) It avoided distortion of the elements of the action for breach of confidence.
(h) It enabled New Zealand to draw upon extensive United States experience.
(i) It would allow the law to develop with a direct focus on the legitimate protection of privacy, without the need to be related to issues of trust and confidence.
Gault P and Blanchard J were of the view that there were two fundamental requirements for a successful claim for interference with privacy in New Zealand: (a) the existence of facts in respect of which there was a reasonable expectation of privacy; and (b) publicity given to those private facts that would be considered highly offensive to an objective reasonable person.[327]
4.56 Legislation - By virtue of the Privacy Act 1993, any person may make a complaint to the Privacy Commissioner alleging that any action is or appears to be "an interference with the privacy of an individual". An action will be "an interference with the privacy of an individual" if the action breaches an information privacy principle in the Act and has caused or might cause some loss or other form of harm to the individual concerned. As far as the manner of collection is concerned, Information Privacy Principle 4 provides, inter alia, that personal information shall not be collected by an agency by means that are "unfair" or "intrude to an unreasonable extent upon the personal affairs of the individual concerned". If the Privacy Commissioner considers that a complaint has substance, he may refer it to the Proceedings Commissioner appointed under the Human Rights Act 1993, who may in turn bring proceedings in the Complaints Review Tribunal. The Tribunal may make an order prohibiting a repetition of the action complained of or requiring the interference to be put right. It can also require damages to be paid.
4.57 It may be noted in passing that section 4(1)(c) of the Broadcasting Act 1989 in New Zealand imposes a duty on broadcasters to maintain standards which are consistent with the privacy of the individual. The Broadcasting Standards Authority applies seven privacy principles when determining complaints under that provision. In these principles, the Authority expresses the view that the protection of privacy includes protection against:
(a) the intentional interference (in the nature of prying) with an individual's interest in solitude or seclusion, provided that the intrusion is offensive to the ordinary person;
(b) the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities;
(c) the public disclosure of "public facts" concerning events (such as criminal behaviour) which have, in effect, become private again, for example, through the passage of time provided that the public disclosure is highly offensive to a reasonable person;
(d) the disclosure of private facts to abuse, denigrate or ridicule personally an identifiable person; and
(e) the disclosure by the broadcaster, without consent, of the name and/or address and/or telephone number of an identifiable person unless the details are public information or are disclosed in the course of current affairs reporting.[328]
4.58 Although there is no provision in the Constitution dealing specifically with the protection of privacy, the Norwegian Supreme Court has held that Norwegian law recognises legal protection of personality, which embraces a right to privacy. The right to privacy is also protected by the Penal Code, which provides that anyone who unlawfully violates the right to privacy by publishing information relating to the "personal or domestic affairs" of another is liable to a fine or three months' imprisonment.[329]
4.59 Article 26 of the Civil Code provides:
"Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts … shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence; (2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition."[330]
Any individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs the privacy of communication and correspondence of another shall be liable to that other for damages.[331]
4.60 The Constitution provides in Article 23 that "Everyone shall have the right to privacy, personal and family secrets, and protection of his honour and good name." Article 24 provides that "It shall be forbidden to gather, store, use and disseminate information on the private life of any person without his consent." Privacy is also a personal right under Article 150(2) of the Civil Code. Attached to this right are rights to personal dignity, honour and good name, business name, personal secrets and family secret. A court can order the defendant to provide financial compensation if the plaintiff suffers physical or moral damage by violation of his personal rights.[332]
4.61 The right of privacy in South Africa is protected by both common law and the Constitution. Section 14 of the South African Constitution of 1996 states that "Everyone has the right to privacy, which includes the right not to have - (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed." To establish a violation of the constitutional right to privacy, the plaintiff has to show that he had a subjective reasonable expectation of privacy which was objectively reasonable. Any person whose right of privacy under the Constitution has been infringed or threatened may apply to the court for "appropriate relief", including a declaration of rights.
4.62 An unlawful and intentional interference with the right to privacy is also actionable at South African common law within the concept of dignitas.[334] Invasions of privacy have been broadly divided into two categories:
(a) Intrusions into (including acquisition of information) or interferences with private life - A violation of privacy by means of an act of intrusion takes place where an outsider himself acquires knowledge of private and personal facts relating to the plaintiff, contrary to the plaintiff's determination and wishes.
(b) Disclosures or revelations of private information - A violation of privacy through an act of disclosure arises where, contrary to the determination and will of the plaintiff, an outsider reveals to third parties personal facts regarding the plaintiff, which, although known to the outsider, nonetheless remain private. The legal protection of private facts is extended only to ordinary or reasonable sensibilities and not to hyper-sensitiveness. This type of violation covers:
(i)the disclosure of private facts which have been obtained by an unlawful act of intrusion into privacy;
(ii)the disclosure of private facts in breach of a confidential relationship;
(iii)the mass publication of private facts; and
(iv)the disclosure of false or misleading private facts.
4.63 The common law defences to a violation of the right to privacy include consent, necessity, private defence, impossibility, public interest and performance in a statutory or official capacity.
4.64 Article 17 of the Constitution of the Republic of Korea declares that "The privacy of no citizen may be infringed." Invasion of privacy is actionable in tort and compensatory damages are recoverable for "injured feelings". A Seoul court found that five female university students were entitled to damages when a Newsweek photographer published without their permission a photograph of them at school, in conjunction with an unfavorable accompanying article.[335]
4.65 The Constitution recognises a basic right to privacy. It is also a civil offence to infringe the right to privacy under the Organic Law of 1982 on Civil Protection of Honour, Personal and Family Privacy and One's Image of Oneself. Section 9(3) of the Law provides:
"The protection afforded by the courts will include the taking of all necessary measures to end the unlawful intrusion and to re-establish the victim in full possession of his rights, and preventing or impeding further intrusions. These measures may include an injunction for the prompt termination of the unlawful intrusion, the admission of the right to reply, the discussion of the sentence, and the order to pay damages."[336]
The constitutional court held that the courts must balance the right to privacy and the right to freedom of expression.[337] Unwanted publicity and unauthorised collection of personal information may also be an offence under the Criminal Code.[338]
4.66 The Civil Code in Taiwan protects the right of personality.[339] This 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 physical body, health, freedom, reputation, name, privacy, likeness, secrecy and honour. Anyone whose right of personality has been infringed by another may apply to the court for relief.
4.67 Constitutional privacy - Although both the Constitution and the law of tort in the US 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 tort. 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.[340] Constitutional privacy affords protection against the following types of intrusion:[341]
(a) Government intrusion into a person's mind and thought processes and the related right to control information about oneself.
(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.
4.68 Tort law privacy rights - Judicial development of the law of privacy in the US was influenced by the seminal article written by Warren and Brandeis in 1890. Drawing upon English cases of defamation, property, breach of copyright, and breach of confidence, they argued that the common law implicitly recognised the right to privacy. 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."[342] The ideas propounded in the article were subsequently taken up and developed by the courts in most jurisdictions in the US.
4.69 The law of privacy as developed by the American courts 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 - This tort 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. It requires proof of an unauthorised intrusion or prying into the plaintiff's seclusion as to a matter which the plaintiff has a right to keep private, where the conduct would be highly offensive to a reasonable person.
(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, where the disclosure is highly offensive to a reasonable person.
(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 unauthorised commercial use of a person's identity, which causes injury to dignity and self-esteem with resulting mental distress damages. 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 for any other business purposes.
(d) False light in the public eye - This tort 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; 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.[343]
4.70 As at 1995, the courts in at least 28 states have explicitly or implicitly accepted each of the four torts delineated above. Several other states have adopted the privacy torts of intrusion, public disclosure of private facts, and appropriation of an individual's name or likeness, but not the tort of placing someone in a false light. Virtually all states have recognised a cause of action for invasion of privacy in some form.[344]
4.71 The future of the "public disclosure" tort in the US has been thrown into doubt by the US Supreme Court's decision in Florida Star v BJF.[345] In that case, a reporter lawfully obtained the name of a rape victim from an erroneously released police report. The name was subsequently included in a newspaper article. The victim alleged that the newspaper had violated a Florida statute that made it unlawful to publish in any instrument of mass communication the name of the victim of a sexual offence. She argued that a rule punishing publication furthers three closely related interests, namely, the privacy interest of victims of sexual offences; the physical safety of such victims, who may be targeted for retaliation if their names become known to their assailants; and the goal of encouraging victims to report these offences without fear of exposure. The Court held that the imposition of civil damages on the newspaper, pursuant to the Florida statute, violated the First Amendment: "where a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order".[346] Although the Court also stated that it did not hold that truthful publication is automatically constitutionally protected, the context of the decision indicates that rarely will privacy be considered a "state interest of the highest order". In a dissent joined by Rehnquist CJ and O'Conner J, White J stated: "By holding that only ‘a state interest of the highest order' permits the State to penalise the publication of truthful information, and by holding that protecting a rape victim's right to privacy is not among those state interests of the highest order, the Court accepts appellant's invitation to obliterate one of the most noteworthy legal inventions of the 20th century: the tort of the publication of private facts."[347]
4.72 Thailand - Section 34 of the Constitution of the Kingdom of Thailand states:
"A person's family rights, dignity, reputation or the right of privacy shall be protected. The assertion or circulation of a statement or picture in any manner whatsoever to the public, which violates or affects a person's family rights, dignity, reputation or the right of privacy, shall not be made except for the case which is beneficial to the public."
4.73 Singapore and Malaysia - Neither the Constitution of Singapore nor that of Malaysia specifically recognises the right of privacy. There is also no data protection or privacy law in these two countries. However, the Singaporean High Court has held that personal information may be protected from disclosure under a duty of confidence.[348]
4.74 Latin America - The privacy laws in most Latin American countries are contained in the criminal law under which the media may be criminally liable for invading someone's privacy. The privacy offences include divulging private facts to the public, publishing private communications, and interfering with a person's intimate life. It has been suggested that the public largely supports these measures.[349]
4.75 It is safe to conclude that outside the realm of personal data privacy which is specifically protected by data protection legislation, the overwhelming majority of the jurisdictions covered by our comparative study provide for a right to the legal protection of individual privacy in one way or another. These jurisdictions are Austria, British Columbia, Manitoba, Newfoundland, Saskatchewan, Quebec, Mainland China, Macao, Taiwan, Denmark, Estonia, France, Germany, Hungary, Ireland, India, Italy, Lithuania, The Netherlands, New Zealand, Norway, The Philippines, Russia, South Africa, South Korea, Spain, Thailand, the United States and most of the Latin American countries, including Brazil. There is no legislation protecting general privacy rights in New Brunswick but a Privacy Bill was introduced to the Legislative Assembly in December 2000.
4.76 Jurisdictions which do not recognise a right of action for breach of privacy are Australia, England and Wales, Malaysia and Singapore.
[227] (1937) 58 CLR 479.
[228] (1937) 58 CLR 479, at 495-6.
[229] D Lindsay, "Freedom of Expression, Privacy and the Media in Australia" in M Colvin (ed), Developing Key Privacy Rights (Hart Publishing, 2002), at 197; G Taylor, "Why is there no Common Law Right of Privacy?" (2000) 26(2) Monash University Law Rev 236.
[230] [2001] HCA 63.
[231] [2001] HCA 63, paras 40-41.
[232] [2001] HCA 63, para 42, per Gleeson CJ.
[233] [2001] HCA 63, para 125, per Gummow and Hayne JJ, Gaudron J concurring.
[234] [2003] QDC 151, para 442.
[235] [2003] QDC 151, paras 444 - 446; adding that a defence of public interest should be available.
[236] Unfair Publication: Defamation and Privacy (Report No 11, 1979); see Part III.
[237] Above, para 234.
[238] The issue of creating a general tort of invasion of privacy was also discussed in the report on personal information and privacy published by the Australian Law Reform Commission in 1983. Privacy (Report No 22, 1983), vol. 2, paras 1075 - 1081.
[239] C J Hamelink, Preserving media independence: regulatory frameworks (UNESCO: Communication and Development Series, 1999), at 37; News Verlags GmbH & CoKG v Austria, No 31457/96, date of judgment: 11.1.2000 (ECtHR).
[240] Federal Act on the Press and Other Journalistic Media, Federal Gazette, No 314/1981, Article I, Section 3, paras 7 and 7a.
[241] Electronic Privacy Information Center & Privacy International, Privacy & Human Rights 2003, at <www.privacyinternational.org/survey/phr2003/index.htm>, "Republic of Austria".
[242] Privacy & Human Rights 2003, above, "Federative Republic of Brazil".
[243] I Lawson & B Jeffery, Privacy and Free Enterprise - The Legal Protection of Personal Information in the Private Sector (Ottawa: The Public Interest Advocacy Centre, 2nd edn, 1997); J D R Craig, "Invasion of Privacy and Charter Values: The Common-Law Tort Awakens" (1997) 42 McGill LJ 355.
[244] (1976) 73 DLR (3d) 62.
[245] (1958) OWN 77.
[246] Dyne Holdings v Royal Insurance Co of Canada (1996) 138 Nfld & PEI R 318.
[247] These actions related to unauthorised recording and publication of a telephone conversation; and conduct involving harassment, trespass and interference with enjoyment of property. Discussed in I Lawson & B Jeffery, above, pp 212 - 221.
[248] See "Annotation" (1981) 19 CCLT 37, referred to in I Lawson & B Jeffery, above, p 219.
[249] G H L Fridman, 194.
[250] British Columbia Privacy Act 1996, c 373; Manitoba Privacy Act 1987, c PI25; Newfoundland Privacy Act 1990, c P-22; and Saskatchewan Privacy Act 1979, c P-24.
[251] J Craig & N Nolte, "Privacy and Free Speech: Germany and Canada: Lessons for an English Privacy Tort" [1998] EHRLR 162 at 167.
[252] I Lawson & B Jeffery, above, p 93.
[253] [1997] RJQ 30 at 36.
[254] City of Longueuil v Godbout (1997) 152 DLR(4th) 577, paras 97-98.
[255] Aubry v Éditions Vice-Versa Inc (1998) 157 DLR (4th), para 52.
[256] See New Brunswick Department of Justice, A Commentary on the Privacy Act (Dec 2000), at <inter.gov.nb.ca/legis/index-e.htm>.
[257] The Department of Justice explains that the words "undue" and "unduly" are used to make clear that there is a question of degree involved in determining whether an invasion of privacy has occurred. It acknowledges that some degree of intrusion or publicity may often have to be accepted as part of the give-and-take of living in society. When that degree becomes excessive, or "undue", it may amount to an invasion of privacy.
[258] Examples given in s 3 are: "(a) watching or following an individual; (b) disturbing an individual in his or her home or any other private place: (c) listening to or intercepting private communications: or (d) disclosing information of a personal nature about an individual."
[259] Articles 38 - 40.
[260] "Supreme People's Court's Tentative Opinion on the Enforcement of the PRC General Principles of Civil Law", 26 January 1988, para 140.
[261] "Supreme People's Court's Answers to Questions about the Trial of Reputation Cases", 7 August 1993, Question 7.
[262] Part 4 of the Draft Code is at <http://law-thinker.com/>.
[263] Calcutt Report, below, paras 5.23-5.24.
[264] Kaye v Robertson [1991] FSR 62 (CA); Khorasandjian v Bush [1993] QB 727, 744 (CA); R v Khan [1997] AC 558, 581G and 582G-583A (HL); Earl Spencer v UK (1998) 25 EHRR CD 105; Home Office v Wainwright [2002] QB 1334 (CA), paras 20, 57-59, 87-112; Douglas v Hello! Ltd (No 3) [2003] EWHC 786 (Ch), [2003] 3 All ER 996, para 229; Wainwright v Home Office [2003] UKHL 53, [2003] All ER (D) 279 (Oct), paras 15-35.
[265] JUSTICE, Privacy and the Law (London, Stevens and Sons, 1970).
[266] Report of the Committee on Privacy ("Younger Report"), (London: HMSO, Cmnd 5012, 1972).
[267] Above, paras 563 - 565 and 629 - 633.
[268] Report of the Committee on Privacy and Related Matters ("Calcutt Report"), (London, Cm 1102, 1990).
[269] D Calcutt, Review of Press-Regulation (London, Cm 2135, 1993).
[270] National Heritage Committee, Privacy and Media Intrusion (London: HMSO, 294-I, 1993).
[271] Lord Chancellor's Department & the Scottish Office, Infringement of Privacy - Consultation Paper (1993).
[272] Department of National Heritage, Privacy and Media Intrusion - The Government's Response (London, Cm 2918, 1995).
[273] Privacy and Media Intrusion, Fifth Report of Session 2002-03, Vol 1, HC 458-I.
[274] Department for Culture, Media and Sport, Privacy and Media Intrusion - The Government's Response to the Fifth Report of the Culture, Media and Sport Select Committee on ‘Privacy and Media Intrusion' (HC 458-1) Session 2002-2003 (Cm 5985, 2003), paras 2.3-2.6.
[275] An amendment providing that a court should "normally" give precedence to Article 10 over Article 8 was rejected.
[276] Clause 3 of the Code declares: "(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent. (ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable. Note: Private places are public or private property where there is a reasonable expectation of privacy."
[277] [2001] 2 WLR 992 para 94 (Sedley LJ concurring, at para 136).
[278] Above, para 136. See also Venables v News Group Newspapers Ltd [2001] 1 All ER 908, paras 40 and 51; Campbell v Frisbee [2002] EWHC 328 (Ch), para 29.
[279] Venables v News Group Newspapers Ltd [2001] 1 All ER 908, paras 27 and 111; Mills v News Group Newspapers Ltd [2001] EMLR 41, para 21.
[280] C J Hamelink, above, at 63.
[281] Étienne Picard, above, at 51.
[282] K Zweigert & H Kotz, Introduction to Comparative Law, (Oxford: Clarendon Press, 2nd rev edn, 1987) vol. II, p 387.
[283] Quoted in C Dupré, "The Protection of Private Life versus Freedom of Expression in French Law" in M Colvin (ed), Developing Key Privacy Rights (Hart Publishing, 2002), at 52. A court may also order the publication of a "rectifying communiquè" drawn up by the plaintiff.
[284] Étienne Picard, above, pp 83-89.
[285] C Dupré, above, at 69-70.
[286] Calcutt Report, above, para 5.14.
[287] 35 BVerfGE 202, reproduced in B S Markesinis, A Comparative Introduction to the German Law of Torts (Oxford: Clarendon Press, 3rd edn, 1994), 390 at 392; translated by F H Lawson & B S Markesinis.
[288] See R English, "Protection of Privacy and Freedom of Speech in Germany" in M Colvin (ed) Developing Key Privacy Rights (Hart Publishing, 2002), at 81. For a brief introduction to privacy in Germany, see G Taylor, "Why is there no Common Law Right of Privacy?" (2000) 26(2) Monash University Law Rev 236, 247-256.
[289] K Zweigert & H Kotz, above, at 384.
[290] The Lebach case, 35 BVerfGE 202, reproduced in B S Markesinis, A Comparative Introduction to the German Law of Torts (Oxford: Clarendon Press, 3rd edn, 1994), at 390.
[291] J Craig & N Nolte, above, at 174. See also B Markesinis et al, "Concerns and Ideas about our Developing Law of Privacy" (Institute of Global Law, University College London, 2003), pp 69-74 (identifying five levels of protection, namely, the public sphere, the social sphere, the private sphere, the confidential sphere and the intimate sphere).
[292] The human body between death and burial is likely to be within this sphere: G J Thwaite & W Brehm, "German Privacy and Defamation Law: The Right to Publish in the Shadows of the Right to Human Dignity", 8 EIPR 336, 342 (1994).
[293] It has been held that the publication of a photograph of a German woman topless on a Spanish beach without her consent was a violation of her intimate sphere: G J Thwaite & W Brehm, above, at 342.
[294] Hence, the activities of an "absolute public person" can generally be reported and his picture can be published. As for "relative public persons", their names and pictures might be published for a reasonable period. For example, the name and even picture of an accused may be published. However, there must be some proceedings in place before he can be publicly identified. Such a person may recover his privacy after a lapse of time. A "private person" receives the widest protection. His name, picture or likeness cannot be attributed to a commercial product; his image cannot be seriously distorted by a play; and his photographs cannot be published without his informed consent. See G J Thwaite & W Brehm, above, at 341.
[295] The smaller the value of the information, the greater the protection of privacy.
[296] Whereas personal information that is of genuine public interest may be published, publications that are published merely to satisfy the craving of readers for sensational and superficial entertainment and motivated solely to further the economic interests of the publisher, are generally precluded if they infringe upon the right of personality.
[297] That is, whether the complainant is a public or private figure.
[298] For example, the fact that a long-range camera is used to photograph a person will not render publication in breach of the right of personality, unless the person being photographed was in his home or other private premises.
[299] J Craig & N Nolte, above, at 177.
[300] R English, "Protection of Privacy and Freedom of Speech in Germany" in M Colvin (ed), Developing Key Privacy Rights (Hart Publishing, 2002), at 95.
[301] C J Hamelink, above, at 77.
[302] Article 21 of the Constitution states: "No person shall be deprived of his life or personal liberty except according to procedure established by law."
[303] Rajagopal v State of Tamil Nadu [1994] SCC (6) 632, 639. See also Kharak Singh v State of UP [1964] 1 SCR 332.
[304] Above, at 649-650.
[305] B M E McMahon & W Binchy, Irish Law of Torts, (Dublin: Butterworths (Ireland), 2nd edn, 1990), ch 37; Law Reform Commission of Ireland, Consultation Paper on Privacy: Surveillance and the Interception of Communications (1996), chapters 3 & 4.
[306] [1974] IR 284.
[307] Law Reform Commission of Ireland (1996), paras 3.5 - 3.8. Eg, Kennedy v Ireland [1987] IR 587 (holding that "the nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society"); Re Ansbacher (Cayman) Ltd [2002] IEHC 27, para 22.
[308] Law Reform Commission of Ireland, Report on Privacy: Surveillance and the Interception of Communications (1998).
[309] Law Reform Commission of Ireland (1998), p 129, Head 3(1)(iv).
[310] Law Reform Commission of Ireland (1998), p 129, Head 3(3).
[311] Civil Code, Articles 7, 10 & 2043. See Gustaf von Dewall, Press Ethics: Regulation and Editorial Practice (The European Institute for the Media, EIM Media Monograph 21, 1997), pp 102 - 104.
[312] Guido Alpa, "The Protection of Privacy in Italian Law" in B S Markesinis (ed), Protecting Privacy - The Clifford Chance Lectures Volume Four (OUP, 1999), pp 121-124.
[313] Privacy & Human Rights 2003, above, "Republic of Lithuania".
[314] C J Hamelink, above, at 82.
[315] Articles 28, 31 & 32 of the Macao SAR Basic Law, at <www.umac.mo/basiclaw/english>.
[316] Articles 67 to 82. See 趙秉志總編，<澳門民法典>，中國人民大學出版社，1999 年，頁29-34。
[317] Francine van Lenthe & Ineke Boerefijn, "Press Law in the Netherlands" in ARTICLE 19, Press Law and Practice (1993), ch 6; Calcutt Report, above, para 5.27.
[318] Article 6:162 on tort: C J Hamelink, above, at 88.
[319] Calcutt Report, above, paras 5.25 and 5.28.
[320] [1986] 2 NZLR 716, at 733.
[321] The judgments of Jeffries J and the Court of Appeal were quoted in [1986] 2 NZLR 716, 731-732.
[322] [1986] 2 NZLR 716, 733.
[323] [2000] 2 NZLR 591.
[324] P v D [2000] 2 NZLR 591, paras 33-34; Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, 423. See generally R Tobin, "Invasion of privacy" [2000] NZLJ 216.
[325] CA101/03 (date of judgment: 25.3.04).
[326] Per Gault P and Blanchard J, at para 148; Tipping J concurring, at para 223.
[327] Para 117. See also para 259.
[328] New Zealand Broadcasting Standards Authority, "Privacy Principles", at <http://www.bsa.govt. nz/_priv_princ.htm>. Discussing the matter in the "public interest" is a defence to a claim for invasion of privacy.
[329] Privacy & Human Rights 2003, above, "Kingdom of Norway".
[330] At <http://www.chanrobles.com/civilcodeofthephilippines1.htm>.
[331] Civil Code, Article 32(11).
[332] Privacy & Human Rights 2003, above, "Russian Federation".
[333] See South African Law Reform Commission, Privacy and Data Protection - Issue Paper 24 (2003), Chapter 3 and the cases and materials cited therein.
[334] Dignitas consists of all those rights relating to dignity.
[335] Sun-Jeong Kwon, Hyun-Ju Kim and Yun-Hwa Kim v Newsweek Inc, Seoul Civil Dist Ct, 92 Gadan 57989 July 8, 1993; cited in Privacy & Human Rights 2003, above, "Republic of Korea".
[336] C J Hamelink, above, at 118.
[337] STC 104/86, 17 July 1986.
[338] Organic Act 10/1995, section 197. A person may be criminally liable for "The unauthorised appropriation, use or modification to the detriment of others, of confidential information of a personal or family nature pertaining to another, contained in computerised, electronic or telematic files or supports or in any other type of public or private file or record, as well as unauthorised access thereto by any means, and its alteration or use to the detriment of the owner of the information or any other person." Quoted in C J Hamelink, above, at 118.
[339] Articles 18, 184 & 195.
[340] J T McCarthy, The Rights of Publicity and Privacy (Clark Boardman Callaghan, 1994), § 5.7[B].
[341] J T McCarthy, above, § 5.7[C]. See also E H Schopler, "Supreme Court's Views as to the Federal Legal Aspects of the Right of Privacy" 43 L Ed 2d 871.
[342] S D Warren and L D Brandeis, "The Right to Privacy", 4 Harv L Rev 193, at 205 - 206.
[343] W P Keeton (ed), Prosser and Keeton on Torts (Minn, St Paul, West Publishing Co, 5th edn, 1984), p 863 et seq.
[344] A J McClurg, "Bringing Privacy Law out of the Closet: A Tort Theory of Liability for Intrusions in Public Places" (1995) 73 North Carolina L Rev 989, 998-999.
[345] 491 US 524 (1989).
[346] 491 US 524 at 541 (1989).
[347] Above, at 550.
[348] X v CDE [1992] 2 SLR 996, cited in Privacy & Human Rights 2003, above.
[349] See generally J E Lanao, Freedom of the press and the law - Laws that affect journalism in the Americas (Miami, FL: Inter American Press Association, 1999).