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A Common Law Tort of Privacy? – The Challenges of Developing a Human Rights Tort

Paula Giliker

(2015) 27 SAcLJ 761

This article will examine the evolution of a new tort – that of misuse of private information – in the courts of England and Wales. Stimulated by the introduction of the UK Human Rights Act 1998 (c 42), the English courts are moving towards recognition of a distinct tort which is capable of responding to advances in technology which give rise to increased possibilities for intrusion into the personal lives of private individuals. While such a development may seem preferable to the previous practice of “shoehorning” claims into the existing action for breach of confidence, this article will consider, with reference to recent case law in New Zealand and the Canadian province of Ontario, the challenges which recognition of torts protecting privacy rights present to traditional common law reasoning. In particular, it will examine the extent to which the constitutional framework in each jurisdiction, which provides for protection of a right to privacy and freedom of expression, has led to different responses. Developing a privacy tort is no easy task, both in defining the interest protected and determining its scope and appropriate remedial framework. In analysing how the courts have addressed these issues, the article will consider whether incremental case law development or legislative intervention is more likely to lead to the coherent evolution of this area of law.