Charting privacy law through the ages

In the seminal case of Campbell v MGN Ltd (2004), Lord Nicholls described privacy as being at ‘the heart of liberty’. It isn’t difficult to see the ghost of a legal right to privacy floating around the common law principles on trespass, nuisance and even defamation, let alone liberty-defining cases such as Semayne’s Case (1604), or Entick v Carrington (1765). So it is odd to think that privacy as an actionable right only arose relatively recently.

This collection of essays provides a fast-paced review of the history of privacy law, primarily from the Anglo-American common law world. Each essay picks up one of the key cases in the development of various privacy-related rights, and it is fascinating to see how judicial thinking has developed. Judges in early cases tried to see privacy claims through the lens of property law, or libel – as in the New York case of Roberson v Rochester Folding Box Company (1900), with its eyebrow-raising finding that Abby Roberson, whose portrait was used without her permission in an advertising campaign, could not have suffered any loss on which to found any claim because the picture was so flattering.

In England, the courts steadfastly rejected any kind of common law privacy tort before some judicial creativity in Campbell v MGN, where the House of Lords created an ersatz misuse of private information tort from the equitable right of breach of confidence and the recently incorporated European Convention on Human Rights.

Elsewhere, the work considers how courts in other jurisdictions have grappled with issues such as press harassment (Von Hannover v Germany (2004), European Court of Human Rights), inappropriate access to private data (Jones v Tsige (2012), Ontario Court of Appeal), and the right to have inaccurate or embarrassing information removed from internet search engines (Google Spain v Agencia Española de Protección de Datos (2014), European Court of Justice).

This is a fascinating work, providing a thorough but readable account of the key cases in the evolution of privacy rights.

James Hurford