The Right To Privacy And Remedies For Misuse Of Private Information

Few would disagree with the view that the common law strives to uphold the principle that an "individual shall have full protection in person and in property." Nor that "recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing...the right 'to be let alone'." But it may come as a surprise to learn that those words were written in 1890.

'The Right to Privacy' is a law review article that was written by Samuel Warren and Louis Brandeis, published in the Harvard Law Review in December 1890. It was a hugely influential work and is said to be the first publication in the United States advocating for the right to privacy. Therefore, it will come as no surprise to learn that Louis Brandeis went on to serve as a Justice on the U.S. Supreme Court from 1916 to 1939.

What were these "recent inventions and business methods" that so concerned the authors? Their concerns arose from the fact that, "instantaneous photographs and newspaper enterprises have invaded the sacred precincts of private domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the house-tops." Whilst the language may be slightly old-fashioned, the tenor is clear. Clear parallels can be drawn with concerns made by today's advocates for privacy and regulation of the press. See for example, the campaign group Hacked Off.

Does the common law recognise the right to privacy?

In both Scotland and the jurisdiction of England and Wales, the courts have recognised that there is a common law right to privacy.

In England, the courts have developed the common law to develop a right of privacy through a breach of confidence (the misuse of private information). In Scotland, the courts have recently recognised that "there is a common law right of privacy in Scotland" - B C & Others v Chief Constable Police Scotland & Others - see here for the judgment and here for our analysis of the case.

Therefore, whilst Warren and Brandeis' call for recognition of this right may have gone unanswered in Scotland for some time, the Scottish courts have recently recognised that, "there is a nascent recognition of a common law right of privacy in the [Scottish] case law."

How can this right be protected?

Privacy is an unusual right because it is only something that is valued when it disappears. Put another way, people don't always voice their...