Chapter 17. The Developing Tort of Misuse of Private Information

• Pages: 467-503

INTRODUCTION

In the absence of a developed jurisprudence on a tort of misuse of private infor-

mation in the Caribbean, and despite the lack of a concrete constitutional basis for

informational privacy in Commonwealth Caribbean constitutions, it is possible to

construct arguments a llowing for:

(a) the interpretation of various fundamental r ights provisions in Caribbean consti-

tutions, to allow for some measure of constitutional protection of privacy;

(b) the applicability of ‘Strasbourg jurisprudence’ developed in connection with the

interpretation of Arts 8 and 10 of the European Convention on Human Rights

(ECHR), on the basis that several Caribbean constitutions have provisions which

are similar to Art s 8 and 10;

(c) t he direct applicability in domestic law of the privacy provisions of Arts 11 and

29 of the unincorporated American Convention of Human Rights, which not

only recognise human dignity but also ensure g uarantees inherent in human

personality.

Under current local law, constitutional remedies are available only against the state1

or its organs or public authorities with respect to negative obligations. They are not

currently available against private citizens, though there is a glimmer of hope that

states may be obliged to accept positive obligations to ensure that laws are in place for

the protection of their citizen s against the actions of other private citizens.2 This may

very well be the next judicial learning emergi ng from Caribbean courts, on account

of the fact that, under the various constitutions, the state has a duty to provide statu-

tory provisions for protection by the law.3 Indeed, the more references and analogies

the Privy Council makes regarding the application of the UK Human Rights Act

19984 to private citizen s in the United Kingdom, the more likely it will be that these

authorities will be considered as persuasive precedents before the Caribbean Court

of Justice, and it will only be a matter of time before the positive obligation of the

state to protect its citizens becomes a general principle of constitutional law.

As far as Strasbourg jurisprudence is concerned, the modern judicial approach

in the Caribbean is to consider and accept its principles where the provisions of the

1 Written constitutions act a s checks and balances over govern ment power as it affects the freedoms

of citizens. The h istory of the coming into being of w ritten constitutions shows th at their purpose

was to protect against tot alitarian regime s.

2 Francois v AG of Saint Lucia, LC 2001 HC 16, where ss 8 and 10 of the Constitution were disc ussed in

the context of laws on domestic violence.

3 See s 18(8) of the Constitution of Barbados.

4 C 42.

Chapter 17

the DeVeLOpING tOrt OF MISUSe

OF prIVate INFOrMatION

VANESSA KODILINYE*1

* Vanessa Kodilinye, LLM (IT and Telecoms) (Strathclyde), Dr Rer Publ (Leuphana), CIPP/E, EIPA/DPO,

Solicitor (England and Wales) (non -practising), Attorney -at-Law (Barbados).

DOI: 10.4324/9781 35106 5108 -17

10.4324/97813 5106 5108 -17

468 Commonwealth Caribbean Tort Law

constitutions are textual ly similar to the ECHR,5 bearing in mind the origins of the

constitutions and also taking into account the direct applicability of the ECHR6 to

British overseas territories before they became independent.7 In relation to the inter-

pretation of the Belize Constitution, Lord Bingham of Corn hill in Reyes v The Queen8

remarked that it was not intended that the Constitution be used to deprive persons

of the rights enjoyed for 28 years preceding the independence of Belize under the

European Convention on Human Rights. Thus, at the very least, the decisions relat-

ing to Art 8 of the Convention ought to be of highly persuasive authority.

Accordingly, in the absence of Caribbean case law in the area of misuse of pri-

vate information, decisions of the English courts and the Strasbourg jurisprudence

on the topic will be considered in thi s chapter.

The English courts have repeatedly refused to recog nise a separate free-stand-

ing tort of invasion of privacy.9 The explanation usually given by the courts for

this apparent lack of judicial ingenuity is that, unlike in jurisdictions such as New

Zealand and the United States, where comprehensive denitions of privacy have

been formulated, the creation of a separate tort comprising discrete principles of

law is not within the purview of judicial f unction, but rather ought to be conducted

through the legislative process.10 For some English judges, the problem lies in for-

mulating the circumstances under which exceptions to a general right to privacy

are to operate, rather than in dening the right itself wh ich, as some members of the

former House of Lords had agreed, may all be included within the right conferred

by Art 8 of the ECHR.11 On the other hand, there are judges who take the view that

to place the law on a statutory footing may be seen as inhibiting the natural, incre-

mental and experimental development of the common law12 on a case-by-case basis.

5 It is yet to be determined whether the C aribbean Court of Just ice will accept the previous deci-

sions of the Privy Counc il under the doctrine of precedent, or create a n entirely new Caribbean

jurisprudence. So fa r, the Court has accepted as persua sive authority the decisions of the Eu ropean

Court of Human R ights.

6 See Lord Bingham of Cornhil l in Grant v R [2006] UKPC 2 at para 17, but cf the earlier view of Lord

Wilberforce in Minister of Ho me Affairs and Another v Fisher (1979) 44 WIR 107 at 112, in which he

described the con stitution as ‘sui generis’.

7 See Reyes v The Q ueen [2002] UKPC 11. There is a direc t applicability to Barbados under the 1953

Declaration by the UK Gover nment under the Europe an Convention on Human Right s. The

Cayman Islands have di rect rights of petition to t he European Court of Human Rig hts in the same

manner as exerci sable by EU countries.

8 [2002] UKPC 11 at para 28. This ca se concerned the compatibility of a prov ision (imposing a man-

datory death penalty for a ce rtain class of murder) with that of the provision of th e constitution

against inhu mane punishment.

9 Lindsay J in Douglas v Hello! Ltd (No 3) [2003] 3 All ER 996, where he opined that protection u nder a

tort of breach of privacy ought to be developed by parl iament and not the court. Si r Robert Megarry

VC in Malone v Metropolitan Police Commissioner [1979] Ch 344 at 372 to 381; Kaye v Robertson (1 991)

FSR 62; AG v Guardian Newspapers Ltd (No 2) (Spycatcher) [1988] 3 All ER 545; Wainwright v Home

Ofce [2004] 2 AC 406.

10 See House of Commons Cultur e, Media and Sport Commit tee (2010): ‘Press Standards, Privacy,

Libel’, House of Commons, United Kingdom, available at www .publications .parliament .uk /pa /

cm200910 /cmselect /cmcumeds /362 /362i .pdf. Ea rlier Bills which fai led to become law were the

1961 and 1969 Right of Privacy Bills.

11 Wainwright v Home Ofc e [2004] 2 AC 406.

12 Baroness Hale of Richmond i n OBG Ltd v Allan [2007] U KHL 21.

Chapter 17: Misuse of Private Information 469

JUDICIAL CREATIVITY

The courts have had earlier opportunities to exercise judicia l creativity,13 for example

in cases involving police surveillance. In M alone v Metropolitan Police Commissioner,

for instance, the court was asked to decide whether the clai mant had causes of action

where the police had conducted telephone tapping without trespassing upon the

claimant’s property; and in R v Khan the police had used a listening device afxed

to the claimant’s house.14 The courts in both cases declined to recognise a tort of

invasion of privacy, expressing the view that although it was permi ssible for them to

extend existing principles and laws, it was not the function of the court s to legislate

in a new eld of law. Legislation was subsequently passed as a result of both cases:

with respect to the former ty pe of situation, the Interception of Communications Act

1985 was passed to address codes of exceptions; and with respect to the latter, the

Police Act 1997 was enacted to authorise the use of sur veillance devices.

The leading case of Kaye v Robertson15 als o shows that there may be situations in

which a claimant may be left without a civil remedy in fact ual circumstances which

plainly dictate that there ought to be a remedy. Here, the court had to decide whether

a trespass had been committed in circumstances where a newspaper reporter and

photographer entered the claimant’s hospital room without his authority and pur-

ported to interview him. The court declined to exercise creativity by recognising

that a tort of invasion of privacy had been committed, and the case was expressly

mentioned in the Calcutt Committee’s report16 in considering the issue of whether

an individual’s right to privacy should be put on a statutory basis.

More recently, and prior to the enactment of the Human Rights Act 1998, in

Wainwright v Home Ofce, the trial judge attempted to develop the common law tort of

trespass to the person by awarding damages to a mother and her young son who had

been strip-searched prior to entry into a prison as visitors, in the absence of statutory

protection against searches. The young boy’s genitals were examined by prison ofcers

and his foreskin pulled back in the search for drugs. As a result of the humiliation he

13 See also Hunter v Can ary Wharf Ltd [1997] AC 655, in which the House of Lords buttre ssed develop-

ment of the common law of nuisan ce so as to include the tort of causing distre ss by harassment,

a position taken by the Cou rt of Appeal in the earlier case of Khorasan djian v Bush [1993] QB 727,

stating that becau se of the existence of the statutor y protection from harassment by t he Protection

from Harassment Act 1997 (c 40 of 1997), under which a ‘course of conduct’ of harass ment is action-

able; see the more recent cases of K ing v Sunday Newspapers Ltd [2011] NICA 8 and Trimingham v

Associated Newspa pers Ltd [2012] EWHC 1296 (QB). In Trimingham, the court reje cted the claimant’s

claims for hara ssment because she did not sufciently part icularise, nor did she address her a lle-

gations against a pa rticular journa list nor was she able to show the causation bet ween the distress

she suffered and publicat ion of the article conce rned; Kaye v Roberts on (1991) FSR 62. There was

no mention of breach of condence as a po ssible cause of action, even though the facts of t he case

could have easily tted into the Coco cr iteria for a successful clai m under that cause of action. The

action was pleaded as libel, ma licious falsehood, trespa ss to the person and passing off. Bing ham

LJ described the int rusion by a journalist and photog rapher into the claimant’s hospital room a s a

‘monstrous invasion’ of privacy but which did not e ntitle the claimant to relief u nder English law.

14 [1996] UKHL 14. See the approach taken in PG v United Kingdom (2008) 46 EHRR 51, in which it was

held that clandesti ne recording at private premises and at the pol ice station were breaches of the

Art 8 right.

15 [1991] FSR 62.

16 Calcutt, D, ‘Report of the Comm ittee on Privacy and Relate d Matters’ (Cm: 1102), (1990, Her

Majesty’s Stationery Ofce, United Ki ngdom).