Case Law: Fearn and the Board of Trustees of the Tate Gallery, Emanations of the Tate, a “self induced incentive to gaze” is not nuisance – Athalie Matthews

28 02 2019

In the recent case of Fearn v  The Board of Trustees of the Tate Gallery ([2019] EWHC 246 (Ch)) the High Court analysed privacy rights from a novel perspective in both literal and legal terms.

The claimants are the owners of four glass-walled luxury flats in the Neo Bankside development on the South Bank of the Thames, Block C of which is located about 34 metres from the south side of the new Tate Modern (now called the Blavatnik Building) and its spectacular tenth floor viewing gallery.

With flats in the development reportedly having sold for between £2 million and £19 million, even by sky-high London standards residents paid a premium for the privilege of owning what the Financial Times described at the time as ‘a determinedly High Tech expression of expense’.

Meanwhile, the new Tate Modern created by architects Herzog & Meuron was hailed in 2016 as ‘the most important new cultural building to open in the UK for almost twenty years’.  The stakes on both side of the Business and Property Court were therefore, like the buildings in question, rather high.

The facts

The claimants owned flats on floors 13, 18, 19 and 21 of Block C, with 18 and 19 being roughly on a level with the viewing gallery.

Whilst both buildings went up at about the same time and the claimants were aware there would be a viewing gallery of some kind, it seems that neither side realised how the two structures would interact in practice – or perhaps more importantly, how human nature reacts when it has the opportunity to be nosy and there are no brick walls to thwart it.

The claimants argued that their privacy was invaded by the gaze of visitors to the viewing gallery who, on reaching the south side facing the see-through flats, would typically stop, gaze across to and into the apartments, take photos, film (sometimes for long periods), look through binoculars and wave at the people inside. (In one case an obscene gesture was even reported.)

Due to the extensive use of glass in the flats, people on the viewing gallery could (and indeed still can) see straight into the apartments, whether via the ‘Winter Gardens’ (internal glass balconies leading through glass doors into the living rooms), or through the floor to ceiling glass walls of the living rooms.

Mrs Claire Fearn, the first claimant’s wife, described feeling ‘sick to her stomach’ when people waved at her inside her apartment from the viewing gallery, such that she had only stayed there a handful of times.

Others were upset by photographs posted on social media under cheeky hashtags such as ‘#noprivacy’ and ‘No wandering around in pj’s’.

The third claimant, Mr Ian McFadyen, the owner of the 19th floor flat, said he and his family were ‘more or less constantly watched’ from the viewing gallery, leaving them feeling ‘under surveillance’.

Accordingly, he said, they felt they could not leave washing out (clearly a family with high domestic standards) and that they had to be ‘properly dressed’ at all times.

When residents complained, the Tate responded by introducing more limited viewing times and engaging security guards to discourage visitors from staring into the flats.

But this was not enough for the claimants, who sought an injunction to require the Tate to close part of the viewing gallery or screen it off, building their application on two foundations: (1) human rights law; and (2) the common law of nuisance.

The essential issue was whether, having chosen to purchase apartments with glass walls in an ‘inner city urban environment, with a significant amount of tourist activity’, the claimants had enforceable privacy rights as against the Defendant under either of the above two heads.

To the frustration (and major expense) of the claimants, but in a victory for a much loved national institution, Mr Justice Mann refused the application, although not before visiting both the viewing platform and all four of the flats in personam.

(Perhaps a little ironically in view of the rights at stake in this case, one resident also invited the Daily Mail to visit.)

The ruling, the reasons for which are set out below, is of considerable significance to the 9 million residents of the jam-packed mega city that is contemporary London, each desperate to protect his or her patch from myriad potential encroachments.

The basic finding that, if you have chosen to live in the residential equivalent of a goldfish bowl you have no reasonable expectation of privacy, will also no doubt send shudders down the spines of hipsters and city slickers alike.

The judgment may however bring cheer to stockists of curtains, blinds and net curtains  (the introduction of which the Judge regarded as ‘remedial steps’ the claimants could have taken to protect their own privacy), and to scholars of the evolving law of nuisance which, as a result of this case, we now know is capable of protecting privacy rights.

Human Rights

Whilst the right not to be overlooked in one’s home is admittedly not the traditional domain of human rights law, it nonetheless fell to the court to determine whether the claimants had a ‘direct claim in privacy’ under Article 6 of the Human Rights Act (‘HRA’) and Article 8 of the European Convention of Human Rights (‘ECHR’).

Under Section 6(1) HRA, ‘Acts of Public Authorities’, ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right.’ This argument therefore rested on showing that the Tate Gallery qualifies as a ‘public authority’, a rising bollard in the relevant legal landscape which the claimants failed to negotiate.

In addressing the question of ‘whether the activities of the Tate are governmental in nature’  the Judge held that ‘like many other museums up and down the country [it] is offering displays and education to the public and advancing the cause of art to the UK citizens and overseas visitors. That is not essentially governmental activity and it is not rendered so by the fact that the Tate was formed by statute, has public funds and is a publicly funded body….’. Similarly the operation of a viewing gallery was not a function of a public nature.

The question of whether in providing a viewing gallery the Tate was acting incompatibly with the Article 8 privacy rights of the flat owners therefore never fell to be addressed.

With the foundations of the ‘direct privacy claim’ reduced to rubble, could a remedy still be salvaged from the law of nuisance?

The law of nuisance

There were two questions before the court in establishing whether there was a remedy in nuisance:

(1) Can privacy from overlooking be protected by nuisance?

Nuisance is typically a right which attaches to land and there are three types of private nuisance: (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.

The claimants argued that privacy is capable of being viewed as part of the amenity of land and that as such, the viewing gallery – which the court described as ‘a structure whose whole purpose is to overlook’ – is capable of being a nuisance of the third kind above, ie of interfering with their ‘quiet enjoyment’.

This argument found sympathy with the Judge who concluded that [emphasis added]: ‘the law of nuisance is capable, in an appropriate case, of operating so as to protect the privacy of a home as against another landowner’.

In so doing the Judge drew an ingenious parallel between the concept of an ’emanation’ from a building such as smoke or heat (against which the tort of nuisance has traditionally provided protection) and the gaze of visitors to the viewing platform.

But was this an ‘appropriate case’?

(2) Was there an actionable nuisance in this case?

The key question was [emphasis added]: ‘whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land, bearing in mind the nature of that use, the locality in which it takes place, and bearing in mind that the victim is expected to have to put up with some give and take appropriate to modern society and the locale.’

To determine his ruling the learned Judge broke this question down into the three elements typically relevant to a nuisance claim:

 (i) The character of the locality

This, the Judge observed, was: ‘a part of urban south London used for a mixture of residential, cultural, tourist and commercial purposes’ and that, in such an environment, an occupier can expect rather less privacy than in a rural setting. Put simply: ‘Anyone who lives in an inner city can expect to live quite cheek by jowl with neighbours’.

(ii) The reasonableness of the use of the defendant’s land

The Judge found there was nothing unreasonable about the operation of a viewing gallery by an art gallery in the context of the character of the area and particularly as the Defendant had responded to the claimants’ concerns by introducing more limited access times.

(iii) The nature and use of the claimant’s properties

It was in his analysis of this third element that the Judge effectively took a sledgehammer to the defendant’s fragile case on nuisance, sending the claimants’ hopes of an injunction splintering like shards:

‘.the claimants…who chose to buy the flats have created or submitted themselves to a sensitivity to privacy than would be the case of a less-glassed design. It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance…. If the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created’.

Perhaps we can expect this intriguing new concept of ‘self-induced incentive to gaze’ to start to appear in wider discussions on different types of privacy law in situations where scrutiny, having been invited, is then complained of. Watch this space (through glass, of course).

Athalie Matthews is a Consultant in the Media & Reputation team at Withersworldwide


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