Last year, the High Court decision in Fearn v Board of Trustees of the Tate Gallery ([2019] EWHC 246 (Ch)) bolstered common law privacy protections as Mann J acknowledged that invasions of domestic privacy could support an action in private nuisance. The Court of Appeal has now reversed this development and reasserted that overlooking cannot constitute an actionable nuisance ([2020] EWCA Civ 104). This case brief summarises the two judgments, discusses errors in the appellate decision and suggests that Mann J’s extension should have been retained.

High Court

The claimants in Fearn owned extensively glassed flats which faced a viewing platform surrounding the Tate Modern. They sought an injunction obliging the defendants to partially close the platform or to erect screening as visitors often watched, photographed and filmed their domestic activities. They argued the Court had to apply the law of nuisance in light of the Human Rights Act 1998 so as to protect the art 8 right to private life.

Where a private nuisance claim involves loss of amenity (as in Fearn) the defendant’s user must seriously interfere with the plaintiff’s enjoyment of their land such that a reasonable person would find the interference unacceptable. Whether an interference is actionable depends on all the circumstances, including the nature of the locality and the frequency of the interference. Mann J likened this inquiry to determining whether someone has a reasonable expectation of privacy such that their neighbour’s overlooking constitutes a breach of privacy. Accordingly, he noted that nuisance could be extended to protect domestic privacy under art 8.

However, Mann J found that the defendants’ conduct was consistent with the nature of the locality (an urban district in south London) and that the claimants had increased their sensitivity to privacy as the flats’ glassed design created a “self-induced incentive to gaze” analogous to cases involving oversensitive plaintiffs. It was therefore reasonable for the claimants to reduce the defendants’ interference themselves.

Court of Appeal

The Court of Appeal upheld the Judge’s decision, but held that nuisance cannot support a breach of privacy action for five reasons.

Firstly, there was no case where a nuisance action for overlooking had succeeded, but there were cases which indicated that no such action exists. These included Chandler v Thompson ((1811) 3 Camp 80, 170 ER 1312 [pdf]), Tapling v Jones (1865) 20 CBNS 166, 144 ER 1067 (HL)) and Turner v Spooner (1861) 30 LJ Ch 801 (Ch)), all of which discussed the opening of new windows overlooking neighbouring properties.  The Court noted that while there is a difference between opening windows and a viewing platform, “the issue of principle as to whether or not an invasion of privacy for overlooking is actionable … is the same”. The Court also observed that nuisance does not protect privacy in related jurisdictions, referring to the High Court of Australia decision in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor ((1937) 58 CLR 479). Thus, “the overwhelming weight of judicial authority” suggested that overlooking cannot constitute a nuisance.

Secondly, this made sense “for historical and legal reasons”, as there is a longstanding absence of rights to light, air flow and prospect. The absence of such rights is policy-based as their existence would limit urban construction. This was deemed analogous to the absence of an action for overlooking.

Thirdly, the law does not provide a remedy for every annoyance to a neighbour, even if that annoyance is considerable. It was therefore not self-evident that overlooking should be actionable in nuisance.

Fourthly, policy militated against the Fearn extension. Unlike conventional annoyances, such as dirt and fumes, the Court believed that it would be difficult both to determine whether overlooking materially interferes with the amenity value of land, and to provide “clear legal guidance” on how to assess the frequency and intensity of overlooking.

Fifthly, overlaying nuisance with art 8 would significantly distort the tort. Mere licensees have no cause of action in nuisance, but art 8 would confer a right on anyone who had a reasonable expectation of privacy in the affected premises. Moreover, in assessing one’s reasonable expectation of privacy under art 8, the court would need to consider matters irrelevant in nuisance, including the plaintiff’s particular sensitivities and the defendant’s competing Convention rights.

Although seemingly persuasive, the Court’s reasoning is problematic in several respects.

Precedent

First, Fearn was supported by precedent as earlier cases had recognised that privacy may be defended through nuisance. A nuisance action was upheld in Walker v Brewster (1867) 5 LR Eq 25 (Ch). where the defendant’s fetes attracted people who sat on a wall adjoining the plaintiff’s property, destroying their privacy. Motherwell v Motherwell ((1976) 73 DLR (3d) 62) and Wainwright v Home Office ([2004] 2 AC 406) expressly contemplated nuisance’s application to privacy. Admittedly, many of the cases supporting Fearn are equivocal or merely persuasive. However, it is an overstatement to suggest that the “overwhelming weight of judicial authority” precludes overlooking’s actionability in nuisance.

Further, while the Court could draw on Victoria Park as persuasive authority, this case is distinguishable from Fearn as the structure in Victoria Park provided a view of an outdoor racecourse, not the interior of someone’s home. The Court also relied inappropriately on Chandler, Turner and Tapling as these cases examined the opening of windows which simply happened to overlook neighbouring properties. While they indicate that overlooking per se is not actionable, these cases do not address the fundamentally different situation in Fearn which involved a structure whose whole purpose was to overlook. Indeed, the passages quoted in the Court of Appeal’s judgment were directed expressly to the opening of new windows. It is therefore dubious to characterise them as expressing a “general principle”.

Conceptual Compatibility

Although the Court claimed that Fearn could distort nuisance, it is conceptually appropriate to characterise physical privacy as an amenity within the traditional framework of the tort. After all, the right to private life is an intangible interest which can naturally be connected with domestic comfort. The European Commission of Human Rights has already recognised this as art 8 is seen to comprise “the right to establish and develop relationships with other human beings” (X v Iceland (1976) 5 DR 86). By way of example, a parent can reasonably expect to spend time with their children at home without unwanted surveillance.

Interferences with domestic activities of this kind can properly be analysed as involving a loss of amenity. Similarly, nuisance is a flexible and versatile tort which may protect novel amenities like privacy without much difficulty. Protecting privacy accords with the ordinary test for liability in nuisance as the assessment of whether the claimant has a reasonable expectation of privacy fits easily into the inquiry of whether the defendant’s user constitutes an actionable nuisance. It is unclear why the Court of Appeal believed this analysis would be inappropriate, especially since the loss of amenity caused by unwanted watching is comparable to the loss of amenity caused by other intangible disturbances, like excessive noise. Furthermore, logical criteria for assessing the intensity and frequency of overlooking could be developed. For example, directed prying into a bedroom with binoculars would constitute a serious (and thus culpable) interference, whereas intermittent and undirected glances towards a neighbour’s backyard with the naked eye would cause only marginal (and thus lawful) interference.

Article 8

Contrary to the Court’s analysis, protecting physical privacy through nuisance is also justified by the text of art 8 and related ECHR jurisprudence. The wording of art 8 is clearly broad enough to mean that the right protected extends beyond informational privacy and includes physical privacy (unwanted access to the physical self). Further, since nuisance is concerned with domestic privacy, its extension in Fearn accorded precisely with the reference to “family life” and the “home” in art 8. This interpretation of the right to private life is supported by ECHR decisions confirming that art 8 captures physical (not just informational) privacy. In Reklos v Greece ([2009] ECHR 200). the Court stated that while the right to control the use of one’s image generally involves the possibility of refusing publication, “it also covers the individual’s right to object to the recording, conservation and reproduction” of that image. T

he ECHR has also recognised that art 8 protects against nuisances, such as noise pollution and toxic fumes (López Ostra v Spain (1994) 20 EHRR 277 (ECHR) at [44]–[58]; Guerra v Italy (1998) 26 EHRR 357 (ECHR); Moreno Gómez v Spain (2005) 41 EHRR 40 (ECHR); and Arrondelle v United Kingdom (1982) 26 DR 5.) Developing nuisance to better protect physical privacy is therefore justified (indeed demanded) under art 8.

Policy

Finally, although the Court believed that Fearn was undesirable for policy reasons, several policy factors support Mann J’s decision. Generally speaking, the law should strive to protect both informational and physical privacy as this would recognise that a rights violation occurs where someone intrudes into another’s private space without later disclosing private information. This allows for a more comprehensive protection of the privacy right, and Fearn partly achieved this by providing a privacy-related action not dependent on the publication of information. Additionally, Fearn helped keep local privacy protections in step with overseas developments which target physical privacy, such as the intrusion into seclusion tort in New Zealand (See C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672).

From a general standpoint, developments like Fearn are much needed since no universal privacy right exists in England and Wales. Mann J’s development should therefore have been retained, and its reversal was grounded in faulty reasoning.

Aidan Economu is an LLB (Hons) student at Victoria University of Wellington

This post is an edited version of “Fearn v Board of Trustees of the Tate Gallery: A Lost Opportunity for the UK’s Protection of Physical Privacy?”.