Raymond Wacks has been writing about privacy for nearly 40 years. Those who have enjoyed the clarity and concision – and the sometimes provocative tone – of his earlier works will not be disappointed by his latest book. Privacy and Media Freedom is very timely, coming as it does on the heels of the Leveson Inquiry Report. It also fills a gap in the current literature, by aiming to canvass, and critique, the increasingly complex principles applicable to England's dynamic action for the “misuse of private information” in a form far shorter, and hence arguably more accessible to students, than the two impressive tomes published recently on the same subject (Gurry on Breach of Confidence, 2nd ed. (OUP 2012); Tugendhat and Christie's Law of Privacy and the Media, 2nd ed. (OUP 2011)).
Chapter 1 surveys the notorious difficulties courts and commentators have encountered when trying to conceptualise “privacy”. Wacks argues that for too long scholars have simply equated privacy with the values (of freedom, liberty, dignity, and autonomy) which underpin it, leading to a myriad of protean definitions and ultimately resulting in conceptual capriciousness. Wacks is equally critical, however, of “neutral” definitions of privacy (associated, most famously, with Ruth Gavison, “Privacy and the Limits of Law” (1980) 89 Yale L.J. 412) that conceptualise privacy as a state or condition which is compromised when a person or her affairs are “accessed” against their wishes, for such value neutral articulations are overly broad and do not resonate with most people's intuitive understandings of privacy. Instead of conceptualising privacy itself, Wacks prefers to concentrate on “personal information” which is assessed both by the quality of the information at issue and the reasonable expectations of the individual concerning its use. This conception, which “functions both descriptively and normatively”, refers to “those facts, communications, or opinions which relate to an individual and which it would be reasonable to expect him or her to regard as intimate or sensitive and therefore to want withhold, or least restrict their collection, use or publication” (p. 13). Chapter 1 also contains an interesting discussion of the media's aversion to press regulation, and an overview of various furtive attempts to address the problem of media malpractice in England, culminating, most recently, in the Leveson Report.
Chapter 2 is devoted to freedom of speech. It aims to introduce readers to, as well as undertake some evaluation of, the classical arguments underpinning the nature and scope of this right. Along with the previous chapter, this one sets the conceptual framework for the remainder of the text. Wacks canvasses with admirable concision debates surrounding whether free speech is a right important primarily to individuals or to the community as whole, whether it is aimed solely at speakers or should also include the rights of the audience, and focuses on the classic justifications for free speech as advancing truth and being critical to democratic governance.
Chapter 3 is entitled “The Genesis”. Here Wacks traces the origins of privacy, as a legal concept and right, from Warren and Brandeis's seminal article that postulated a common law “right to be let alone” (S.D. Warren and L.D. Brandeis, “The Right to Privacy” (1890) 4 Harvard L. Rev 193), through its reception into American law which now has several discrete privacy torts and a constitutional right to privacy. Wacks also briefly canvasses the status of privacy torts in Commonwealth countries and contrasts these with the strong privacy rights that exist in the Continental tradition. The bulk of the chapter is then devoted to tracing the evolution of the ancient equitable action for breach of confidence, which is currently relied upon to provide the jurisprudential underpinning for England's modern action for the misuse of private information. Wacks does a good job of explaining the limits of confidence as a privacy remedy (classically, it requires a factual relationship of confidence and hence would not apply to strangers that invade one's privacy surreptitiously, and also it ought not, conceptually at least, to protect information that is in the public domain and hence lacking the quality of confidence), and how these limits were slowly relaxed in a series of cases in the 1970s and 1980s.
Chapter 4, “The New Order”, sets out the modern action for the misuse of private information as developed by the House of Lords in Campbell v MGN [2004] UKHL 22, and refined subsequently in a series of Court of Appeal decisions (principally McKennitt v Ash [2006] EWCA Civ 1714 and Murray v Express Newspapers [2008] EWCA Civ 446). The current approach bites at unwanted disclosures (in contradistinction to intrusions into private spaces) and is anchored in article 8 of the European Convention on Human Rights. It requires the claimant to establish a reasonable expectation of privacy (REP) in the information at issue, having regard to a variety of contextual factors proposed in Murray. Wacks is critical of the current approach, for two primary reasons. First, like many privacy scholars, he argues that any comprehensive privacy action must cover both intrusions and disclosures. Although English law is evolving to cover intrusions (see, e.g. Imerman v Tchenguiz [2010] EWCA Civ 908, para. 65; Wood v Metropolitan Police Commissioner [2009] EWCA Civ 414, para. 34; CTB v News Group [2011] EWHC 1326, para. 23), at present this is still uncertain, and, as a result, leaves privacy interests potentially under-protected in this jurisdiction. Second, Wacks is critical of using the REP test to govern which disclosures should be actionable. For Wacks, the REP inquiry is best aimed conceptually (as it is in American law) at deciding which intrusions are prima facie tortious; but, in his view, this test is inapposite where disclosures are concerned, for the gravamen of this complaint is the right to control the subsequent use of information, not to be free from its initial unauthorised collection (pp. 115–16).
In Chapter 5, Wacks analyses how English courts balance the right to privacy with freedom of speech. He begins with a discussion of the older breach of confidence cases which balanced obligations of confidence against any public interest in disclosure, noting that controversies abound concerning factual matters such as the significance of the publisher's motive in disclosing, the timing of disclosure, and who the recipient of disclosure is. Wacks then turns to the new post-Campbell approach, which mandates that a fair and proportionate balance be struck between the values underpinning articles 8 (privacy) and 10 (free expression) of the European Convention on Human Rights. Although this framework has replaced the old breach of confidence test, Wacks is quite right to note that the touchstone for balancing requires testing the extent to which the disclosed material “contributes”, in Strasbourg's words, “to a debate of general interest in society” (Von Hannover v Germany [2004] EMLR 379 (ECtHR)) and that, in deciding this, courts should take guidance from examples of the “public interest” applied in classical confidence jurisprudence. In the course of discussing the modern approach to balancing, Wacks also engages with a number of discrete doctrines that have emerged recently in England, including the right of the media to “put the record straight” (p. 151), the relevance of the claimant being a so-called “role model” (p. 152), the extent to which the media's own belief that it is acting in the public interest should influence the strength of its speech right (p. 158), and, importantly, the fraught and uncertain notion that one's status as a “public figure” may undermine the right to privacy (p. 160).
Chapter 6 canvasses many of the “prodigious advances in privacy-invading technology” (p. 185) including biometrics, computer hacking, identity theft, DNA databases, and RFID (Radio Frequency Identification) locators. Following this rather ominous survey, Wacks discusses the American tort of intrusion upon seclusion, noting the protection it may afford against these various technological threats. This, Wacks notes, contrasts favourably with England, which does not have a formal intrusion tort (as the Campbell action bites only at disclosures) despite some suggestions, noted above, that the law is moving in that direction. Absent an intrusion tort, victims in England must instead try to press their claim into an existing action, such as trespass, nuisance, defamation, malicious falsehood, or the intentional infliction of emotional distress. Wacks canvasses this farrago, noting the various doctrinal limitations each of the actions has when pressed into service to protect against intrusions into personal privacy.
Chapter 7 briefly outlines the various remedies available in England for breach of confidence, with particular attention paid to the principles applicable to obtaining injunctive relief. Statutory remedies under various privacy codes and the Data Protection Act 1998 are also briefly touched upon.
Chapter 8, entitled “Problems and Prospects”, concludes the text with numerous provocative “qualms and quibbles” (p. 238) about the state of privacy protection in England. This is probably one of the more original parts of the book, and certainly the most engaging. Wacks takes issue, inter alia, with article 8's “unbearably capacious” (p. 239) language mandating a “respect for private life”, rather than protecting privacy per se (the former encompassing a great deal more than the latter). Wacks quarrels also with the failure of English courts to provide much guidance on what qualifies as “private information” under the Campbell action and, relatedly, their reliance on a multi-factoral REP test, which, he asserts, is inapposite for disclosures. Furthermore, he reiterates his call for English law to distinguish more clearly between disclosures and intrusions, and formally to recognise a separate action applicable to the latter, as American and, more recently, Canadian and New Zealand courts have done. Finally, he repeats his criticism that the concept of the public interest requires further elucidation, and ends by rejecting the notion that any system of non-binding press self-regulation would suffice to protect privacy sufficiently. In his words: “Reconciling privacy and free speech is too important a constitutional enterprise to be left to a random process that lacks a doctrine of binding precedent” (p. 256).
Students looking for a highly readable, and concise, introduction to the state of England's protection of privacy will no doubt find much value in Privacy and Media Freedom. So, too, will potential law reformers, as Wacks helpfully includes a draft privacy Bill in the appendix which sets out the principal ingredients of a statutory action for tortious intrusions and disclosures of personal information.
