It is possible to breach a person’s privacy without disseminating any information about him or her? Many theorists and judges have recognized this non-informational aspect of the privacy interest, often labelling it ‘intrusion’ or physical privacy.
Physical privacy interests will usually fall outside the scope of the disclosure-focused actions for misuse of private information and breach of confidence. And there is no tort of intrusion into seclusion in England and Wales. Protection of physical or non-informational privacy interests is instead provided by a piecemeal collection of common law actions and legislative measures. Included among them are the law of trespass, nuisance, intentional infliction of emotional harm, the Protection from Harassment Act 1997, the voyeurism provisions of the Sexual Offences Act 2003, and aspects of breach of confidence. Each of these is examined in detail in this book, but it should also be considered whether, and if so how, English courts might extend physical privacy protection in the future, having particular regard to developments in other common law jurisdictions.
US law, for example, has for many years featured a tort of intrusion upon seclusion. Relevant intrusions can be effected physically (for example, by forcing one’s way into another’s home or hotel room) or by the use of the senses, either with or without mechanical aids. Subsequent publication is not required.
The New Zealand court recognised a similar tort in C v Holland  3 NZLR 672. In that case, the defendant used a video camera to film his flatmate through a hole in the ceiling while she was having a shower. The claimant sued for damages and proceedings were brought to establish the preliminary issue of ‘whether invasion of privacy of this type, without publicity or the prospect of publicity, is an actionable tort in New Zealand’. Whata J held that it was, regarding the tort of intrusion into seclusion as:
. . . entirely compatible with, and a logical adjunct to, the Hosking tort of wrongful publication of private facts. They logically attack the same underlying wrong, namely unwanted intrusion into a reasonable expectation of privacy.
So far as concerns the domestic position, in spite of the House of Lords’ decision in Wainwright v Home Office  UKHL 53 that there is no general tort of invasion of privacy, courts have often recognized that there is more to the privacy interest than the protection of private information. For example, in Campbell v MGN Ltd  UKHL 22, Lord Nicholls held that the wrongful disclosure of private information is just ‘one aspect of invasion of privacy’. He said:
An individual’s privacy can be invaded in ways not involving publication of information…The extent to which the common law as developed thus far in this country protects other forms of invasion of privacy is not a matter arising in the present case. It does not arise because, although pleaded more widely, Miss Campbell’s common law claim was throughout presented in court exclusively on the basis of breach of confidence, that is, the wrongful publication by The Mirror of private information.
This broad interpretation of the privacy interest is consistent with both domestic and Strasbourg courts’ interpretation of the private life interest in Article 8.
But it is clear from Wainwright that it is not open to the courts simply to found a general cause of action on the basis of a breach of Article 8. Instead, as Gavin Phillipson and Alexander Williams put it, “the courts must develop the common law compatibly with the Convention, but only where such development can be achieved by ‘incremental’ development”. In other words, courts need to identify another cause of action to act as a peg on which any liability for non-informational breaches of privacy can be hung. In the information context, this peg is breach of confidence. The question, then, is whether there is a cause of action which could be similarly extended to protect against physical privacy intrusions.
It is suggested that there is, since the misuse of private information action could be extended to cover a wider range of privacy intrusions. More particularly, misuse of private information could be extended to situations where the claimant has a reasonable expectation of privacy, not in respect of the disclosure of private information, but in respect of his or her physical self, a private place, or a private activity. Such an action could provide protection against unjustified surveillance, spying, eavesdropping, and recording.
Three main arguments support this proposed extension. The first is that the rationale for protecting against misuse of private information applies with equal force to the protection of physical privacy. In both physical and informational privacy cases the fundamental objection is the same: the defendant is obtaining unwanted access to a person by interfering with his or her reasonable expectation of privacy.
Second, courts developing ‘applicable’ common law principles—including misuse of private information—are bound to develop the law consistently with the Article 8 right to respect for private life. Since the Article 8 right to respect for private life extends well beyond the protection of private information, it is defensible—indeed, some would say, necessary—for courts to extend the reasonable expectation of privacy to cover these wider private life interests including right to protection from, inter alia, visual and audio surveillance, bodily searches, and unwanted photography.
And third, the extension of the concept of ‘misuse’ in the breach of confidence case of Tchenguiz v Imerman  EWCA Civ 908 supports the extension of the misuse of private information action. As the Court of Appeal said in Tchenguiz (at ), the law should be developed and applied consistently and coherently in both privacy and ‘old fashioned confidence’ cases, even if they sometimes may have different features. It follows that if the mere acquisition of private information can interfere with a claimant’s reasonable expectations of privacy in breach of confidence, it will also breach the claimant’s reasonable expectations in misuse of private information.
Mann J’s recent decision in Gulati v MGN Ltd  EWHC 1482 (Ch) provides further evidence of the courts’ willingness to recognize a new physical privacy action from within the misuse of private information tort. In that case, a claim to ascertain the damages payable for admitted telephone hacking, Mann J compensated the claimants not just for publication of the information obtained but also for the hacking itself. Substantial damages were therefore paid for hacking which did not result in articles:
to reflect the fact that for a considerable period an individual’s voicemail, and those of associates, were listened to and the private lives exposed there were studied by at least one journalist and probably more, on a frequent, sometimes daily, basis.
Further development in the common law protection of physical privacy therefore seems likely.
This is the third in a series of three abridged extracts from the 3rd edition of The Law of Privacy and the Media (OUP), the leading reference work on the subject. The 3rd edition, edited by Sir Mark Warby and Dr Nicole Moreham, brings the work up to date, addressing developments in privacy and other related areas of law over the last five years, and incorporates substantial new material. For further information and to order, please visit the OUP website.