20 Right to Privacy in the United States and United Kingdom

Prof. Abhishek Sudhir

Table of Contents

1. Learning Outcomes

2. Introduction

3. Right to Privacy in the United States

3.1 Invasion of Private Sphere by the Government

3.2 Invasion of Privacy by the Press

3.3 The Privacy Act, 1974

4. Right to Privacy in the United Kingdom

4.1 Doctrine of Confidence

4.2 Article 8 of the European Convention on Human Rights

5. Conclusion

1. Learning Outcomes

• To introduce students to the right to privacy in countries with a legal and constitutional culture similar to that of India’s.
• To give the students an overview of the development of the right to privacy in the United States and United Kingdom.

2. Introduction

This chapter will deal with the development of the right to privacy in the United States and the United Kingdom. These two countries have been selected for consideration as, much like in India; it has fallen to the judiciary in both countries to develop the right to privacy. Following these judicial pronouncements a privacy law was enacted in the United States- this law will be briefly considered. The module will also look at the right to privacy in the context of abortions and gay rights in the United States. As far as the United Kingdom is concerned, the module will look at the common law (judge-made law) development of the right and the impact of Article 8 of the European Convention on Human Rights on the right to privacy in the United Kingdom.

3. Right to Privacy in the United States

As the U.S. scholar Ronald Standler has pointed out, because privacy is an emerging right, a discussion of privacy is typically a list of examples where the right has been recognized, instead of a simple definition. Privacy can be discussed in two different directions: the nature of the right and the source of the right (e.g., case law, statute, Constitution).

William Prosser, one of the leading American scholars on the right to privacy, refers to four basic kinds/branches of privacy rights and law in the influential treatise Second Restatement on Torts:

1. Unreasonable intrusion upon the seclusion of another, for example, physical invasion of a person’s home (e.g., unwanted entry, looking into windows with binoculars or camera, tapping telephone), searching wallet or purse, repeated and persistent telephone calls, obtaining financial data (e.g., bank balance) without person’s consent, etc.
2. Appropriation of a person’s name or likeness; successful assertions of this right commonly involve defendant’s use of a person’s name or likeness on a product label or in advertising a product or service. A similar concept is the “right of publicity”…As a practical matter, celebrities generally sue under the right of publicity, while ordinary citizens sue under privacy.
3. Publication of private facts, for example, income tax data, sexual relations, personal letters, family quarrels, medical treatment, photographs of person in his/her home.
4. Publication that places a person in a false light, which is similar to defamation. A successful defamation action requires that the information be false. In a privacy action the information is generally true, but the information created a false impression about the plaintiff.

Only the second of these four rights is widely accepted in the United States of America. The right to privacy in the United States was first referred to as a right and elaborated on in an article by Supreme Court Justices Warren and Brandies. The article, titled “The right to privacy” was published in the Harvard Law Review and emphasised the “right to be left alone” in the context of increased media coverage of people’s private lives. The article is often credited with the introduction of the tort of ‘invasion of privacy’.

3.1 Invasion of Private Sphere by the Government

A strand of the right to privacy in the US is the protection is the protection against invasions of the private sphere by government.

Griswold v. Connecticut concerned a law made by the State of Connecticut which punished “any person who uses any drug, medicinal article or instrument for the purpose of preventing conception.” The appellant was running a centre at which information, instruction and medical advice was given to married persons as to the means of preventing conception. The appellant was prosecuted under the aforesaid law, which led the appellant to challenge the constitutional validity of the law.

By a 7-2 decision, the U.S. Supreme Court declared the law unconstitutional. Justice Douglas, who wrote the main opinion, explained the decision’s rationale:

“…specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help to give them life and substance. Various guarantees create zones of privacy. The present case then concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon the relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a ‘governmental purpose to control or prevent activities constitutionally subject to State regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms’.”

In Roe v. Wade, the right of an unmarried pregnant woman to terminate her pregnancy by abortion was considered by the Supreme Court. The relevant Texas law prohibited abortions except with respect to those procured or admitted by medical advice for the purpose of saving the life of the mother. The constitutionality of, the said law was questioned on the ground that the said law improperly invaded the right and the choice of a pregnant woman to terminate her pregnancy and therefore violated her “liberty” guaranteed under Fourteenth Amendment and the right to privacy recognised in Griswold.

Justice Blackmun, who delivered the majority opinion, upheld the right to privacy:

“…the Constitution does not explicitly mention any right of privacy. In a line of decisions, however, the Court has recognised that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment in the penumbras of the Bill of Rights, in the Ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.”

In 2003, the Supreme Court, in Lawrence v. Texas, overturned an earlier ruling and found that Texas had violated the rights of two gay men when it enforced a law prohibiting sodomy. Justice Anthony Kennedy held that the petitioners were entitled to respect for their private lives:

“The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

3.2 Invasion of Privacy by the Press

The expression “right to privacy” was first referred to in Olmstead v. United States but came to be fully discussed in Time, Inc. v. Hill in the context of freedom of the press. Journalists are protected by “freedom of the press” that is explicitly mentioned in the First Amendment to the U.S. Constitution, while privacy rights of individuals are not explicitly mentioned in the Constitution.

The case involved three escaped convicts who had intruded into a house and held a family hostage for nineteen hours, after which they were released unharmed. The incident was covered in the local newspapers and the members of the press started swarming the home for an account of what happened during the ordeal.

Unable to stop the siege of the press correspondents, the family relocated. Life magazine sent its men to the former home of the family where they re-enacted the entire incident, and photographed it, demonstrating how the members of the family were ill-treated by the intruders. When Life published the story, the family brought a suit against Time Inc., publishers of Life magazine, for invasion of their privacy and a violation of New York State’s privacy law.

Hill accused Life of not fact-checking their article, which he claimed was inaccurate as the intruders had treated the family well whereas the article claimed that they had been subject to threats and abuse by the intruders.

By a 5-4 decision, the Court found in favour of Time, holding that New York’s privacy law could not be invoked without a fresh trial being held to determine whether Life had in fact reported the story knowing it to be false or had done so in reckless disregard for the truth. Thus, the right to freedom of the press would trump the right to privacy in the absence of proof of falsity and fault.

In the case of Daily Times Democrat v. Graham, a newspaper in Alabama published a photograph of a woman whose dress was lifted by jets of air at a Fun House at a county fair. The court ruled that the photograph, which showed her panties, had no “legitimate news interest to the public” and upheld an award of $ 4166 to plaintiff, for invasion of her privacy. Thus, the Courts do not always protect the press when there is no legitimate news interest.

Time v. Hill was an extension of the holding in the landmark case of New York Times v. Sullivan, where it is incumbent upon public figures claiming to be defamed by the press to prove actual malice on behalf of the publisher. However, while a successful claim for defamation is unlikely for public figures in the U.S., they do have the right to publicity, which is a part of the right to privacy.

In the case of J. Onassis v. Christian Dior, the defendant used a model that was a look-alike of Jacqueline Kennedy in an advertisement. Finding in Kennedy’s favour, the court reiterated that “public figures” have the right to control commercial exploitation of their name and likeness. As far as the right to publicity is concerned, there is no conflict between the freedom of the press and the privacy rights of individuals.

3.3 The Privacy Act, 1974

The Privacy Act was passed in 1974 to establish controls over what personal information is collected, maintained, used and disseminated by agencies in the executive branch of the Federal government. The Privacy Act only applies to records that are located in a “system of records.” As defined in the Privacy Act, a system of records is “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” The Privacy Act guarantees three primary rights:

• The right to see records about oneself, subject to Privacy Act exemptions;
• The right to request the amendment of records that are not accurate, relevant, timely or complete; and
• The right of individuals to be protected against unwarranted invasion of their privacy resulting from the collection, maintenance, use, and disclosure of personal information.

The Privacy Act of 1974 provides safeguards against invasion of personal privacy through the misuse of records by Federal Agencies.

4. Right to Privacy in the United Kingdom

There exists no explicit ‘right to privacy’ in English common law. In Wainwright v Home Office, the Court found “a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. The English common law is familiar with the notion of underlying values – principles only in the broadest sense – which direct its development.” It concluded that the principle (right to privacy) doesn’t exist; it is only the underlying value (privacy) that exists.

4.1 Doctrine of Confidence

The right to privacy in the UK has developed mostly through the doctrine of confidence. In the case of Coco v A N Clark (Engineers) Ltd the Court identified three essential elements which must be proved to show that there has been a breach of confidence:

“A) the information must have ‘the necessary quality of confidence about it’. This means that the information must be secret or confidential. B) The information ‘must have been imparted in circumstances importing an obligation of confidence’. C) There must be an ‘unauthorised use of the information to the detriment of the party communicating it’.”

Lord Goff in Attorney General v. Guardian Newspapers also outlined three circumstances in which confidence would not be protected:

“A) Once information enters what is usually called the public domain (which means merely that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then as a general rule, the principle of confidentiality can have no application to it. B) The duty of confidence applies neither to useless information nor to trivia. C) The right to confidence may be outweighed by some other countervailing public interest which favours disclosure.”

4.2 Article 8 of the European Convention on Human Rights

Article 8 – Right to respect for private and family life

• Everyone has the right to respect for his private and family life, his home and his correspondence.
• There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Under its treaty obligations under the European Convention on Human Rights the United Kingdom enacted the Human Rights Act, 1998. Section 6 of the Act put on obligation on the courts as a public authority to incorporate the provisions of the Convention into English law. The courts have recognized their obligation for ensuring a right to privacy under Article 8 of the Convention though it is incorporated mostly as part of the doctrine of ‘confidence’.

In A v B the Court of Appeal had to consider an application to set aside an interim injunction preventing the first defendant newspaper from publishing details of the claimant’s sexual relationships with the second defendant and a woman to whom he was not married. The injunction was granted on the ground that the information was confidential and subject to the protection of Article 8 of the Convention and there was no public interest in publication that enabled the defendant’s rights of freedom of expression to prevail.

In Campbell v MGN, the House of Lords, by a majority or 3 to 2, took the view that the details of Miss Campbell’s treatment with Narcotics Anonymous, together with the photographs, constituted private information the publication of which amounted to what used to be called a breach of confidence. According to Lord Nicholls’s, the essence of the tort was better encapsulated as a misuse of private information.

5. Conclusion

This module has dealt with the complexities of the right to privacy in the United States and United Kingdom. Neither jurisdiction has explicitly recognised the right to privacy in a constitutional document. The Courts have therefore had to step in and develop the right to privacy on a case by case basis. In the United States, four classes of privacy rights have emerged, with only one class, the right to publicity, being universally recognised. In the United Kingdom, the Courts continue to maintain that there is no explicit right to privacy, a position that is certainly suspect given the precedence accorded to Article 8 of the ECHR in the U.K. This module has demonstrated how the right to privacy has played a key role in some of the more controversial spheres of life in the United States, such as abortion, gay rights and birth-control. One can conclude that the value underlying the right to privacy, essentially that each person has an innate right to keep private information private, subject to certain narrowly defined exceptions, is recognised by both the U.S. and the U.K.

Reference

• David J. Seipp. English Judicial Recognition of a Right to Privacy, Oxford Journal of Legal Studies, Vol. 3, No. 3 (Winter, 1983), pp. 325-370
• William M. Beaney The Right to Privacy and American Law. Law and Contemporary Problems, Vol. 31, No. 2, Privacy (Spring, 1966), pp. 253-271
• Richard A. Glenn. The Right to Privacy: Rights and Liberties Under the Law, ABC-CLIO, Jan 2003
• Concerns and Ideas about the Developing English Law of Privacy (http://www.ucl.ac.uk/laws/global_law/publications/institute/docs/privacy_100804.pdf)
• Right to Privacy (https://www.aclu.org/technology-and-liberty/your-right-privacy