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On 25 August 2010 Supreme Court Justice Lord Walker of Gestingthorpe gave a speech to Anglo-Australasian Lawyers Society at Owen Dixon Chambers, Melbourne on the subject of privacy.  His title was “The English Law of Privacy: An Evolving Human Right“.   The lecture contains an interesting an useful overview of the current law of privacy, particularly in relation to the media.  Lord Walker suggests that, as the law of privacy develops “its origin in the law of confidence will become a historical curiosity” and that we have now reached the point where “invasion of personal privacy” is a separate tort.

He emphasises the importance of “the discipline of analysing an issue correctly“, considering first the question of interference with Article 8 rights and second that of the justification for that interference.  He goes on to contrast the approach in England (and Strasbourg) with that in Australia and New Zealand

English courts have followed Strasbourg in holding that an individual’s Article 8 right to respect for his or her privacy is engaged whenever the circumstances are such as to give rise to a reasonable expectation of privacy. That is a wider and less demanding test than the formula proposed by Gleeson CJ in Lenah Game Meats and adopted by the Court of Appeal of New Zealand in Hosking v Runting) of disclosure of what would be highly offensive to a reasonable person of ordinary sensibilities. The English test is indeed so wide that it may be thought to rephrase the question rather than to answer it.

This means the approach of the English courts is “highly fact sensitive” although “patterns are beginning to emerge”.   Politicians are expected to “have the thickest skins” – draws attention to cases such Lingens v Austria, Reynolds v Times Newspapers and discussion in the Von Hannover case.  He points out that the same approach applies to chief executives of multinational companies, mentioning Fressoz & Roire v France and the Lord Browne of Madingley case.

He then draws attention to a

wider and vaguer class of persons who (in Lord Woolf’s words)“hold a position where higher standards of conduct can be rightly expected by the public”. Buxton LJ commented drily on this formula –

“that is no doubt the preserve of headmasters and clergymen, who according to taste may be joined by politicians, senior civil servants, surgeons and journalists.”

No doubt there is a good reason why the Lord Justice did not add judges and lawyers to those of whom higher standards of conduct can be expected.

The lecture contains an interesting passage dealing with the vexed question of the relationship between privacy and defamation.  Commenting that the rule in Bonnard v Perryman ought to be confined to libel; and,

“arguably, should even with libel yield where necessary to “parallel analysis” to determine what proportionality requires“

From the point of view of English readers he draws attention to the full discussion of these issues by the High Court of Australia what he described as the “remarkable” case of Australian Broadcasting Corporation v O’Neill [2006] HCA 46

In relation to “public interest” arguments, Lord Walker points out that

“Muck-raking is a long-standing and salutary function of the press. But once the exposure of bad behaviour moves out of the sphere of political and public life it is no longer possible (if it ever was) to justify every or any invasion of privacy by invoking the well-known saying that “there is no confidence in iniquity” The exposure of iniquity may be in the public interest, but the sensational disclosure of aberrant sexual conduct, especially if accompanied by prurient details and photographs, may not deserve the protection of the public interest defence.“.

Lord Walker then considers the issue of photographs, referring to the Campbell, Murray and Von Hannover cases.  Finally, he touches on the position in Australia and New Zealand and the issue of governmental intrusion into privacy.

This lecture is a very useful consideration of the current issues in privacy law privacy from one of the United Kingdom’s most senior judges.  It gives a number of interesting pointers towards possible future developments and areas of difficulty in this area of the law and repays careful reading.

Two footnotes.  First, we draw readers’ attention to Lord Walker’s thoughts on Article 10 and the First Amendment set out in his 2008 Mansfield Law Society 60th Aniversary Lecture ‘The first amendment and article 10: sisters under the skin.’ The full text is available here.  Second, Lord Walker’s views on privacy and a range of other issues can be found in an November 2009 interview in the New  Zealand magazine, “Werewolf”.