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Sunday, 26 October 2003


When Patrick O'Neill was remanded in prison, his mother (Mary Jane Wainwright) and his half-brother (Alan Wainwright) wanted to visit him. The prison governor, who suspected that O'Neill was dealing in drugs, gave instructions under the Prison Rules 1964 that anyone visiting him had to consent to a strip search. The Wainwrights reluctantly agreed but later sued, alleging they had suffered emotional distress and (in Alan's case) post-traumatic stress disorder. The trial judge held that the search, not being conducted in accordance with the prison's own rules, was an invasion of privacy. Since the search exceeded what was necessary and proportionate to deal with drug smuggling, there was no defence based on statutory authority. The judge gave damages to Alan for battery and to both Mary Jane and Alan on the basis that (i) it was a form of trespass to the person to ask them to take off their clothes and (ii) they were entitled to relief against any kind of distress caused by an infringement of the right to privacy protected by Article 8of the European Convention on Human Rights (ECHR), although at the time of the incident the Human Rights Act 1998 -- which implemented the ECHR in the United Kingdom -- had not come into force. The Court of Appeal did not agree that trespass to the person covered the case of someone who was induced to take their clothes off and which, in the case of Mary Jane, did not suffer any recognised psychiatric injury. It set aside the judgments in favour of Mary Jane and Alan, with the exception of the damages for the admitted battery to Alan.

The House of Lords dismissed the Wainwrights' appeal. First, they said, there was no general cause of action in English common law for invasion of privacy. Douglas v Hello! Ltd (2001) QB 967, which was cited in support of the proposition that a privacy tort existed, was just a case of regular breach of confidence. Secondly, compliance with Article 8 of the ECHR did not require the adoption of a tort of invasion of privacy: if a person's rights under Article 8 were infringed, the Human Rights Act 1998 provided a statutory remedy. Further, Article 8 might justify a monetary remedy for an intentional invasion of privacy by a public authority, even if no damage was suffered other than distress for which damages were not ordinarily recoverable -- but this did not mean that a merely negligent act should, contrary to general principle, give rise to a claim for damages for distress merely because it affected privacy rather than some other interest.

The IPKat considers that the notion of "invasion of privacy" is a fuzzy one. "Privacy" as a concept does not clearly distinguish between the invasion of a person's physical privacy by strip-searching and the communication to others of private information. Yet one is a matter of individual's personal integrity, the other a matter of restricting the circulation of information which may be personally sensitive or commercially valuable. Should the law treat strip-searching and the publication of the details of one's bank statement, for example, as activities which are dealt with in the same manner by the same legal action?

Different aspects of privacy here, here and here
Privacy fetishes here and here
Smuggling into and out of prisons? Click here, here and here

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