A constant theme of the recent press discussion of “sportsman’s privacy injunctions” has been the suggestion that judges have created a privacy law by stealth and that this raises serious questions about democratic accountability. I have already commented on some of the issues arising from this coverage but it is worth looking at the background to the development of the modern law of privacy in order properly to evaluate the charge of “development by stealth”. This involves considering the development of the law of confidence by the common and the approach of successive Governments towards privacy, including during the passage of the Human Rights Act.
The Common Law
For many years before the implementation of the Human Rights Act, which came into force in October 2000, the traditional law of confidence had developed incrementally but nevertheless substantially to give important protection to personal privacy. This development goes back to the earlly nineteenth century. The leading case from that period was Prince Albert v Strange (1849) 2 De Gex & Sim 652 the Court granted an injunction to restrain publication of private etchings of Queen Victoria and Prince Albert. The Court held that an injunction would be granted where there was “a breach of trust, confidence or contract”. The court noted that “privacy is the right invaded”.
The protection of personal confidences – that is private communications – was well established by the mid twentieth century. In Argyll v Argyll  Ch 302, the Court restrained threatened breaches of marital confidences, including “secrets of the plaintiff relating to her private life, personal affairs or private conduct”. In Stephens v Avery ( 1 Ch. 449) this protection was applied to lesbian relationships and in Barrymore v Newsgroup ( FSR 600) to homosexual relationships. All this was done by the development of the common law and without any reference to the European Convention on Human Rights.
The lengthy Spycatcher litigation in the later 1980s concerned the protection of state confidences in the book written by Peter Wright a former member of MI6. It resulted in a number of significant rulings on the law of confidence. In Attorney-General v Guardian Newspapers Limited (No 2)  1 AC 109 Lord Keith stated that “the right to personal privacy is clearly one in which the law in this field should seek to protect.” More significantly, Lord Goff of Chieveley observed that an obligation of confidence could arise even where the information in question had not been confided by a confider to a confidant. He said at p 281:
“I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties – often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions “confider” and “confidant” are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers – where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by.”
However in Kaye v Robertson (1991) 19 IPR 147 a journalist had gained unauthorised access to the hospital bedside of the actor Gordon Kaye. Photographs were taken of Mr Kaye, who was recovering from a brain injury, without his consent. The Court of Appeal held that the law provided no protection for the photographic information so obtained. It was not even argued that the law of confidence could provide a remedy.
The significance of Lord Goff’s approach was, however, appreciated by Laws J in Hellewell v Chief Constable ( 1 WLR 804). This case concerned a photograph of a person who had been arrested at a police station. Laws J held, at p.807, that:-
“If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.”
As a result, by the end of the 1990’s, even without the Human Rights Act the law of confidence had developed so that it protected confidences that arose in marital relationships, same sex relationships and doctor/patient relationships and, arguably, surreptitious photography of private acts. This was, in substance, the basic elements of a privacy tort – developed slowly and organically by the common law over nearly two centuries.
The Government’s Approach
In 1998 the then Government relied on this development before the European Commission on Human Rights to support its successful submission that privacy was properly protected in English law. This was in the case of Spencer v United Kingdom (1998) 25 EHRR CD 105) which concerned publication in tabloid newspapers of photographs and information about Countess Spencer attending a clinic for the treatment of an eating disorder and for alcoholism. Information about her personal and family problems was also published. The PCC had adjudicated in the complainant’s favour, finding a breach of clause 3 of the PCC Code. The Commission reviewed the common law development of the law of confidence. It found that although there was no general right of privacy, the applicant had, (as the UK Government submitted) sufficient remedies of injunction, damages or an account of profits for breach of confidence available to protect privacy. As a result, the Commission dismissed the complaint, since the applicants had not “exhausted their domestic remedies”.
The Human Rights Act
When the Human Rights Bill was before parliament the “privacy” issue caused considerable anxiety in media circles. The media suggested a number of strategies to avoid the development of a privacy law including “media immunity” and the removal of Article 8 from the Act. The then Chairman of the Press Complaints Commission, Lord Wakeham, moved an amendment during debates in the House of Lords which aimed “to stop the development of a common law of privacy” (Hansard, HL 24 Nov 1997, col 772ff). This amendment was withdrawn. Instead, the Government inserted section 12 of the Human Rights Act: this provides that the courts had to have “particular regard” to the right to freedom of expression and could not grant interim remedies unless satisfied that the applicant is “likely to establish that publication should not be allowed”.
Lord Irvine, the then lord Chancellor made the position abundantly clear in November 1997 in a debate about the Human Rights Bill;
“I want to tackle the concerns of the press directly. They are essentially twofold. First, will the courts develop a law of privacy, and, secondly, is the PCC itself to be regarded as a public authority which should act consistently with the convention? First, as I have often said, the judges are pen-poised, regardless of incorporation of the convention, to develop a right to privacy to be protected by the common law. This is not me saying so; they have said so. It must be emphasised that the judges are free to develop the common law in their own independent judicial sphere. What I say positively is that it will be a better law if the judges develop it after incorporation because they will have regard to Articles 8 and 10, giving Article 10 its due high value, which the strenuous efforts of the noble Lord, Lord Lester of Herne Hill, in the courts of this country and of elsewhere have contributed to ensuring that it enjoys.”
There can be no doubt that Parliament (and indeed the press) was fully aware that the Human Rights Act was likely to accelerate the development of a law of privacy. Parliament (although not the press) embraced and accepted that consequence. The charge that the new law of privacy has been developed by the Judges against the will of parliament and without its knowledge is misconceived.
It was clear to even the casual observer at least from the early 1990’s that the common law development of the law of confidence would continue to develop to develop to protect individual privacy. It was widely known in the late 1990s that such a development would take place. Indeed the Labour Government in 2003 asserted:
“The weighing of competing rights in individual case is the quintessential task of the courts, not of Government or Parliament, Parliament should only intervene if there are signs that the courts are systematically striking the wrong balance; we believe there are no such signs.” (“Privacy and Media Intrusion”, The Government’s Response to the Fifth Report of the Culture Media and Sport Select Committee, Cm 5985, October 2003).
The Press may not like the law of privacy – it does threaten the publication of what Baroness Hale once called “vapid tittle-tattle” about the private lives of celebrities – but they cannot properly complain that it has been developed by the Courts by stealth. This has happened openly and after long consideration. It has happened because – until very recently at least – the Press has opposed the enactment of privacy legislation by Parliament. If Parliament does not act then the courts must.