Privacy and Teh Public

Privacy and the Public
Author(s): G. D. S. Taylor
Source: The Modern Law Review, Vol. 34, No. 3 (May, 1971), pp. 288-304
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PRIVACY AND THE PUBLIC
PRIVACY has never excited much periodical litera
legal circles, unlike the United States where there
flow since 1898 when Warren and Brandeis wrote their celebrated
article.1 But now Britain has seen within twelve months the
JUSTICE Report which followed a lengthy study,2 a Bill based
thereon presented to Parliament,3 and a special committee estab-
lished by the Government. Of these three events perhaps the most
important was the JUSTICE Report which reduced ponderings and
theories to the form of proposed legislation. The Younger Com
mittee accordingly has before it a model and the reasoning behin
it, and the difficulties presented or avoided by that model must
lead to better legislation in the end.
The most difficult task which faced JUSTICE in the endeavour was
that of approach. As it pointed out,4 its approach could have been
to fill gaps seen in existing remedies, for instance in defamation, or
to deal with the problem piecemeal in its various forms of invasion,
for instance by surveillance devices, or to promote a broadly
defined right and leave it to the courts to develop as a " common
law " tort. It was only after lengthy consideration that it chose
the third of these, and drafted a Bill which was subsequently
presented to Parliament as Mr. Brian Walden's Right of Privacy
Bill.
The heart of the Bill is the interplay of a general and inclusively
phrased definition of privacy with a set of general and exclusive
defences. Clause 9 (1) defines the right of privacy as:
"... the right of any person to be protected from intrusion
upon himself, his home, his family, his relationships and com-
munications with others, his property and his business affairs,
including intrusion by
(a) spying, prying, watching or besetting;
(b) the unauthorised overhearing or recording of spoken
words;
(c) the unauthorised making of visual images;
(d) the unauthorised reading or copying of documents;
(e) the unauthorised use or disclosure of confidential infor-
mation, or of facts (including his name, identity or
likeness) calculated to cause him distress, annoyance or
embarrassment, or to place him in a false light;
(f) the unauthorised appropriation of his name, identity or
likeness for another's gain."
1 " The Right of Privacy " (1898) 4 Harv.L.R. 193.

2 Privacy and the Law (1970, London).
8 First Reading November 26, 1969, H.C.Deb., Vol. 792, col. 430; Second
Reading Debate (adjourned) January 23, 1970, H.C.Deb., Vol. 793, col. 861.
4 Report, paras. 127 and 128.
288
MAY 1971 PRIVACY AND THE PUBLIC 289
Should this right be infringed in a " s

way, then clause 1 makes that invas
of any person whose right of privacy
the plaintiff has shown that such an i
he is entitled to his remedy unless the
within one of the defences contained i
" (a) the defendant, having exerci
neither knew nor intended that his conduct would con-
stitute an infringement of the right of privacy of another
person; or
(b) the plaintiff, expressly or by implication, consented to the
infringement; or
(c) where the infringement was constituted by the publication
of any words or visual images, there were reasonable
grounds for belief that such publication was in the public
interest 5; or
(d) the defendant's acts were reasonable or necessary for
the protection of the person, property or lawful business
or other interests of himself or of any other person for
whose benefit or on whose instructions he committed the
infringement; or
(e) the infringement took place in circumstances such that,
had the action been one for defamation, there would
have been available to the defendant a defence of
absolute or qualified privilege, provided that if the
infringement was constituted by a publication in a news-
paper, periodical or book, or in a sound or television
broadcast, any defence under this paragraph shall be
available only if the defendant also shows that the
matters published were of public concern and their pub-
lication was for the public benefit; or
(~) the defendant acted under authority conferred upon him
by statute or by any other rule of law."
Mr. Brian Walden, upon proposing the Bill, declared himself firmly
wedded to this structure,6 and the only parliamentary voice raised
against the structure failed to suggest an alternative.7 The basic
reason advanced by JUSTICE for the structure was the need to pro-
vide a remedy which could be adapted easily to the changing mores
of a changing society, and at the same time give a consistency of
principle which it felt to be lacking in the haphazard growth of
United States law." This, it was felt, could not be achieved by
altering old remedies to new uses. Certainly, it makes for a more
elegant law and one which potentially reaches far more abuses than
either of the rejected approaches. However, both the Bill and its
5 JUSTIOE's proposed clause read: "where the infringement was constituted

by the publication of any words or visual images, the publication was in the
public interest."
e H.C.Deb., Vol. 793, col. 868.
7 Ibid., col. 945.
8 Report, para. 122.
290 THE MODERN LAW REVIEW VOL. 34
precursor appear to raise exactly th

United States courts have struggled
The end product of this struggle h
the right of privacy, and that exper
lators hesitate before presenting th
problems. All might be well if the p
avoided by drafting techniques, but
suggests to the writer that this can
inherent in a thoroughgoing tort of
which JUSTICE adopted. It is with these issues that this article is
concerned.
INVASION OF PRIVACY BY PUBLICATION
The right of privacy envisaged by the Bill involves two types of

invasion: the obtaining of information by undesirable means, and
the publication of information howsoever obtained. These areas give
rise to such widely differing problems that in the writer's view they
do not sit neatly in the same piece of legislation. In the United
States, it should be noted, an invasion of privacy by publication
does not necessarily f6llow from the information published having
been obtained by an invasion of privacy.9 In the wake of invasion
by publication comes a swarm of thorny problems. What is private
as distinct from public? What are legitimate public interests ? How
does privacy relate to defamation? It is submitted that these
problems have been presented to the courts by the Bill, and that
neither there nor in the JUSTICE Report are there adequate sign-
posts. In particular, the JUSTICE Committee have looked rather
to the broad theory of the United States law and through lack of
time have not looked in detail at the course of the case law. If
that is looked to then a very different picture emerges from
seen in the theory. The defences have grown so large as almost
to have swallowed the right, and now that the First Amendme
to the United States Constitution has been held relevant to
privacy,10 there is little left of the grand design. Does
contain any seeds of hope that the English experience
different ?
A thorough-going tort which seeks to protect the individual's
wish for quiet and seclusion sets out to balance a most difficult
equation: the desires, needs, and interests of others to know
about one as against one's wish that they should not know some
things. Should public knowledge be an exception to the rule, or
vice versa ? Difficult though the balance may be to find where the
invasion is for obtaining information, it is doubly so where the
invasion is by publication. JUSTICE'S own Report shows this. The
Report spoke first of discovering " what limitations on . . . privacy
9 See Metter v. Los Angeles Examiner, 95 P.2d 491 (1939) (Cal., D.C.A.).
o10 Time Inc. v. Hill, 385 U.S. 374 (1967).
the community can legitimately clai

that privacy " requires protection fr
only to the extent-to which it would be infringed by others,
without just cause, in the absence of some protection." 12 When
introducing the Bill, Mr. Walden spoke of the need to " give some
protection against that kind of [exposure] journalism if it . . . has
not at least some marginal attachment to the public interest." 13
These differences are not merely semantic. They state three distinct
points of balance, ranging from requiring positive reasons for
making the statement to requiring only that the statement be not
undesirable. JUSTICE settled finally for the first formulation, and
embodied it in a direction as to the burden of proof,14 but this does
not assist in determining whether the burden on the defendant is
to show marginal attachment to the public interest or actual
promotion thereof.
Plainly, motive is a key to the balance in difficult cases, but
here again there is a major difficulty for media publication, in that
that publication has inevitably been made for gain. In the context
of defamation the courts have seldom treated this factor as neutral,
but rather as an illegitimate collateral motive. But in law motive
must eventually rest on an objective standard, and this is " what
are legitimate public interests ?"
This basic question appears in three major contexts. First,
whether the matter published relates to an area of the plaintiff's
life which is public or private. Secondly, whether the plaintiff
consented to the publication either expressly or impliedly. Lastly,
whether the publication serves the public interest. It is plain from
the United States case law that the concept of legitimate public
interests is of an inherently expanding nature, and it has been found
impossible to contain. Now, it is trite to say that British judges
are not so adventurous as their counterparts across the Atlantic,
but this will not necessarily enable them to set limits where Ameri-
can judges have failed. The American experience should at least
make one hesitate. Indeed, JUSTICE has sought to avoid the defects
of the American law by providing a " consistent and flexible "
principle, but that very principle leads back into the problems that
led to those defects.
In addition, a law which regards some publications as invasions
of privacy bears a close relation to the tort of defamation. In the
Right of Privacy Bill there is a considerable area of overlap which,
unfortunately, leads to undue confusion and discrepancy. Given
an absolute defence of truth in defamation proceedings, that law
has developed as a protection against untrue statements, while
privacy encompasses true statements as well as false. Further,
11 Report, para. 16 (emphasis added).

12 Ibid., para. 21 (emphasis added).
is H.C.Deb., Vol. 793, col. 875 (emphasis added).
14 Report, para. 138.
292 THE MODERN LAW REVIEW VOL. 34?
because defamation seeks to protect

balance struck there will not necessar
and, indeed, is unlikely to be. The J
adequate discussion of this relationsh
PUBLIC AND PRIVATE
The whole concept of a right of privacy requires that those matters

protected by the law relate to an aspect of the plaintiff's life which
is " private." Clause 9 of the Bill sets out a list of areas where a
right of privacy exists: self, home, family, relationships and com-
munications with others, property, business, plus any other area
where intrusion takes place by a listed course of action. These are
plainly too wide to stand without qualification; there is scarcely
any statement that can be made about a person which does not
come within these areas. A statement by a Minister in the House
of Commons is a communication with others but is so utterly public
that it would be ludicrous to describe publication of that statement
as an invasion of the Minister's privacy. That is an absurd example,
but it is an invasion of privacy under the Bill. JUSTICE'S policy
was to place the " burden of justifying incursions into the private
life of another " upon the defendant,'5 and this seems to contem-
plate that before the burden shifts the plaintiff must prove more
than that there was a statement relating to him. The plain implica-
tion is that the plaintiff must prove that the statement relates to a
private matter and not a public one. This should have been
expressed, but the Bill leaves to the courts the implication that the
intrusion is not " unreasonable " where the subject-matter was
public and not private. To do otherwise would result in an
unsatisfactory situation. It would set at risk virtually every
statement made about a person, for there is little that can be
said which does not relate to a person's self, home, family,
relationships and communications with others, property, or busi-
ness. If, then, the general definition in clause 9 is to be restricted,
as seems necessary, it will be the public-private distinction which
determines what is an invasion of privacy. Certainly, this is the
position in the United States 1":
'" There is and could be no authority for the broad contention
that publicity . . . is an invasion of his privacy, even though
it discloses no fact whatever relative to his private life which
he wishes to keep secret. . ..
" The argument of the plaintiffs blandly ignores the fact
that what is public is not private and what is private is not
public."
15 Ibid.
16 Patton v. Royal Industries Inc., 70 Cal.Rptr. 44, 48 (1968) per Shinn A.J.
(D.C.A.). See also the leading case of Melvin v. Reid, 297 P. 91, 93 (1931)
(Cal., D.C.A.).
While this is easily enunciated the

delimit. It could mean that privacy protects those areas of a
person's life in which there is no general contact with the public.
On this basis the limits on the defence of fair comment in defama-
tion 17 may be invoked by analogy, though that analogy is incom-
plete. The United States courts have not taken this analogy,
however, but rather have sought clear criteria in holding public
matters which are of public record, or which have been said or
performed in public by the plaintiff.
Public record
Several illustrations of the extent of this criterion may be given.

The story of a twelve-year-old girl having given birth to a child
was held to be in the public domain because all births had to be
registered.'" Similarly, an article on a suicide and her background
was protected because the law required an inquest into all suicides.,'
Finally, a story based on the peculiar trust set up in a will was
protected on the ground that the probate documents were public
documents.20 It is the depth of publication permitted in these cases
that is surprising. In the second case the article preceded the
inquest, and in the first and third cases they went far beyond what
was contained in the public documents relied upon to render the
matters public. But could a court have drawn the line at those
matters which actually appeared on the public record? It is
doubtful that it could have done so, for the second criterion adopted
by the courts would operate to protect the information added to the
record. There may even be no defence where the information was
illegally obtained.21 Given that the information was probably
obtained by interviews, there would have been words or actions in
public by the plaintiff, or an indirect implied consent. Short of
requiring actual consent to everything published, whether privately
or in the media, there may be no possibility of restricting such
matters.
Public actions and statements
This is considerably more difficult. There is a close relationship

with the defence of consent, for a public action may be viewe
either as an implied consent to publicity or the absence of an
invasion of privacy in the first place. The force of the propositio
that what is public is not private has borne the United States court
to the conclusion that an action is public where the public coul
17 On fair comment, see London Artists Ltd. v. Littler [1968] 1 W.L.R. 60

(Q.B.D.), reversed [1969] 2 Q.B. 375 (C.A.).
18 Meetze v. Associated Press, 95 S.E. 2d 606, 610 (1956) (So.Car., S.C.).
19 Metter v. Los Angeles Examiner, 95 P. 2d 491, 495 (1939).
20 Sutton v. Hearst Corp., 98 N.Y.S. 2d 233 (1950) (S.C. (A.D.)).
21 Supra, note 6. Metter may have failed through a lapse in pleading. The
suggested legislation, infra, p. 303, would cover this apparent loophole.
have, but in fact, had not seen it. In

the plaintiffs, who were husband and
" in an affectionate pose " in their
people in the shop, none of whom ac
but a passing reporter recorded it. T
an article on " love makes the worl
the publication was privileged for pu
kiss was exchanged in a place open
publication be similarly privileged of
near the window of her bedroom wh
from the street without the aid of a t
the point in passing but expressed no
This problem may be analysed in te
tions: where the plaintiff takes no ca
present, where the plaintiff checks, th
the plaintiff checks carefully and on
sequently published because he thinks
is insufficient information in the repor
which class it would have come, but it would be a reasonable
inference that it was the second. Where the facts take a case within
the first class, there is fairly substantial reason to hold the pub-
lication to be privileged. Thus, the wartime exploits of a service-
man may be said to be public and, consequently, a film of them
would not be actionable.24 In the second and third classes an
appropriate result could be reached by combining the de
" spying, prying, watching or besetting " involved with a c
of reasonable care. Thus, in Gill's case it may be reasonable to
assume that persons who kiss when others are around are not par-
ticularly worried whether others do in fact see, and there was no
evidence appearing from the report which suggests that the photo-
grapher was other than passing by. The situation may be different
where there is no one else about, or where the photographer has
been " lurking." As for the girl in the window, the result may vary
with how busy the street is and with the position of the window.
It is quite obvious from the above that the public-private dis-
tinction cannot be viewed in isolation; in difficult cases it shades
into consent, express or implied. However, the problems are not
solved by consent considerations alone.
THE DEFENCE OF CONSENT
This defence, which is contained in clause 3 (b) of the Bill, has

two sides: express consent to the publication by the plaintiff, and
consent implied from his words or actions.
Where the plaintiff has expressly consented to the actual pub-
lication there is no difficulty, but there is no clear result where the
22 253 P. 2d 441 (1953) (Cal., S.C.).

23 Report, para. 142 (ii).
24 Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (1955) (Fla., S.C.).
publication is other than that foreseen

the consent. Yet even that case is relatively trouble-free when
compared with the difficulties surrounding implied consent.
Naturally if the plaintiff voluntarily exposes himself to the public
or seeks the public's attention, then his privacy is inevitably lost
to some extent. This was recognised in the second reading debate on
the Bill.25 Such exposure may be treated as expanding the area
which is public, not private, or as an implied consent, or as indica-
tive of a legitimate public interest in a public figure.21 The choice of
view is important; for the first would place the burden of proof
on the plaintiff, while the others would not, and the criteria for
judging consent are plainly different from those in ascertaining a
legitimate public interest. It may be misleading to view the matter
as involving a question of public interest and not consent. If the
public have an interest in a person it will usually be because he
has thrust himself forward, even in the case of a Member of Parlia-
ment in whom the public have an interest peculiarly by virtue of
his position. It is difficult to find a point where interest through
thrusting melts into interest through position. The United States
courts have placed the professional footballer 27 and an aspiring
Mr. Universe 28 into the consent category, along with those who
do something in a particularly public way such as committing
suicide by jumping off the top of the tallest building in the city.29
But it is submitted that an aspiring, though unadopted, parlia-
mentary candidate cannot easily be distinguished from these three.
Where a given situation may appear to be covered by three different
provisions in a Bill, a clear directive is plainly needed. But what ?
The answer is far from certain.
As stated above, there is some difficulty where the actual width
of publication is greater than that to which the plaintiff consented.
Does publication become an invasion of privacy thereby? In one
United States case the plaintiff consented to having her photograph
distributed to the members of a club, but it was held that publica-
tion to the general public was protected by that consent.30 On the
other hand, Warren and Brandeis 31 apparently took the view
that if the defendant is to rely on an express consent, that consent
must be to the actual publication made. This problem of exces-
sive publication is already known in the law of defamation 32 but
the context of that rule may be too far removed from privacy
25 H.C.Deb., Vol. 794, col. 922 (Mr. E. S. Heffer) and col. 927 (Mr. E.
Lubbock).
26 Bloustein, "Privacy, Tort Law, and the Constitution: Is Warren and
Brandeis' Tort Petty and Unconstitutional as Well?" (1968) 46 Tex.L.R.
611, 627.
27 O'Brien v. Pabst Sales Co., 124 F. 2d 167 (1941) (5th Circuit).
28 Delinger v. American News Co., 178 N.Y.S. 2d 231 (1958) (S.C. (A.D.)).
29 Metter v. Los Angeles Examiner, 95 P. 2d 491 (1939).
so Martin v. Senators Inc., 418 S.W.2d 660 (1967) (Tenn., S.C.).
s1 Loc. cit., p. 218.
32 Compare Pittard v. Oliver [1891] 1 Q.B. 474 (C.A.) with Chapman v. Lord
Ellesmere [1932] 2 K.B. 431 (C.A.).
to prove useful. However, this is a furth

the Bill gives no guidance and to which J
tion, though it presents no special difficulty, given JUSTICE'S
reliance upon judicial action.
Foreseeability provides a possible solution. If the plaintiff tells
his story to a person whom he knows to be a Press reporter, he can
hardly complain when it appears in the newspaper. On the other
hand, if he tells it to his neighbour then, prima facie, he should be
able to recover for Press publication though not, perhaps, for the
spread of news through the neighbourhood by word of mouth.
The problem extends further. There may be situations where the
interest which the public have in the matter published, or the
public interest which such publication serves,33 should justify pub-
lication in the absence of even implied consent or in the face of an
express refusal of consent. It may be in extreme cases only that
such publication should be protected, but thought must be given to
such a provision. The bald statement which is sometimes met, that
media publication is to be permitted only subject to consent, is
dangerously wide. A prime minister should not be permitted to stop
publication of moral indiscretions which may open him to black-
mail, simply by withholding consent. Once more, public interest
provides the yardstick in difficult cases.
More difficult is the situation where an implied consent is sought
to be established. This is likely to run into the public-private
distinction. What is the appropriate definition of " public " where
the words are spoken or actions performed in public ? Is it " in a
public place," or " with knowledge that the public can see or
hear," or the reasonable likelihood thereof ? If it is in one of these
ways " public," does it follow that media publication is permissible
based on an implied consent? The cases discussed over the pre-
ceding pages appear to indicate that reasonable likelihood of the
public seeing or hearing does indeed sanction publication. Some
limitation seems warranted, and limitation inevitably requires that
a restricted meaning of public interest be introduced into the
defence of consent. That is, the published matter must be of
public interest notwithstanding the presence of an implied consent.
But just what would such a limit entail?
PUBLIC INTEREST
Since invasion of privacy by publication brings into collision the

individual's desire to exclude areas of his life from public knowledge
and others' desires to know things about that individual, the defence
of public interest is inevitable. The Right of Privacy Bill, in pre-
scribing that there be " reasonable grounds for belief " that the
publication was " in the public interest," by clause 8 (c) merely
33 The vital distinction between these two formulations is discussed infra pp. 297-
299.
chose one line of approach. JUSTICE

that the actual publication be " in th
formula reveals the nature of that
objective formulation, JUSTICE r
defence for the defendant to prove
lication was of public interest and t
public interest." 34 Is a matter " of
which the public are interested ? Or
definable legitimacy ? Is publication
have a legitimate interest necessar
interest "? Or is this latter concept
are " good " for the public to know
ulation, A can say nothing to B ab
matter unless, in terms of the Bi
regarded his very statement as se
crucial here to note the old New South Wales case of McIsaacs v.
Robertson 35 which is still regarded as good law.36 There it w
held not to be for the " public benefit " for Robertson to tel
that McIsaacs, with whom X was about to conclude a business dea
had defrauded Robertson on a previous occasion. This notwit
standing an admitted private benefit to X. The court held th
there could never be a public benefit in those circumstances. The
presence of a qualified privilege under the Bill through the oper
tion of clause 8 (e) is no help, as those imported occasions of
qualified privilege for defamation are enumerated on the assumpt
that the statement may well be false (not ex hypothesi true) and
moreover, represent a balance struck to protect reputation and n
seclusion. The facts of McIsaacs' case would be covered in the Bill
by clause 8 (d) which protects publication in defence of another's
interests, but this will not always be so. There will remain instances
of unprotected private interests.
There are three possible meanings of " public interest " in the
present area: it may be descriptive of the fact that the public are
interested in the matter, or it may indicate that the public have a
legitimate interest in the matter, or it may involve the actual pro-
motion of the good of the common weal.
Problems abound. If the first possibility is accepted it is tanta-
mount to the end of a right of privacy, for no media publisher will
publish something in which his viewers or readers or listeners have
no interest. Enlightened self-interest will see to that.37 While it
may be rejected as an answer of itself, this meaning has some
bearing on the second.
84 Report, para. 142 (iii).

35 (1864) 3 S.C.R.(N.S.W.) 51 (F.C.).
s36 See the working paper of the Law Reform Commission of New South Wales
(1968) pp. 112-113 and the unreported judgment of Maguire J. in Thomas v.
Associated Newspapers Ltd. (September 7, 1964) discussed therein.
37 " The Right of Privacy: Normative-Descriptive Confusion in the Defense of
Newsworthiness," an anonymous note in (1963) 30 U.Chic.L.R. 722. 725.
298 THE MODERN LAW REVIEW VoL. 34
For purposes of analysis, published matter m

news items and other matters. But where lies the distinction ?
" For present purposes news need be defined as comprehending
no more than relatively current events such as in common
experience are likely to be of public interest. In the verbal
and graphic presentation of news, it is clear that information
and entertainment are not mutually exclusive categories. A
large part of the matter which appears in newspapers and
news magazines today is not published or read for the value or
importance of the news it covers. .... Few newspapers or news
magazines would long survive if they did not publish a sub-
stantial amount of news on the basis of entertainment value of
one kind or another. This may be a disturbing commentary
upon our civilisation, but it is nonetheless a realistic picture of
society which courts shaping new juristic concepts must take
into account." 38
Although this was stated in connection with sub-categorisation of

" news," its warning is equally applicable to the present point.
Yet, though the distinction may not give rise to a drawable line
it is still of some utility. The closer a matter comes to " news " in
the above sense, the greater is the importance of it to the public
and the more reasonable that it should prevail over the individual's
interest in his privacy. This upon one index. But within this
index a matter may be of varying importance to the public. This
latter is the index of the public's legitimate interest. On this scale,
a current event concerning racial discrimination in the community
is worthy of greater protection by the law when published than is
the birth of siamese twins, and this in turn is more worthy than is
the way people tie their shoe laces. No lines can be drawn, but the
scale so constructed may be of assistance in a broad way in deciding
individual cases. Obviously, different parts of a single story may
appear at different points in the indices, but in the United States
this has not been held to lead to the defeat of the defence. Thus
the full name, address, and description of a man just acquitted of
a charge upon the ground of mistaken identity was no less pr
tected than was the report of the acquittal and ground,"9 and th
photograph of a recent spectacular suicide with her family than
the event of the suicide.40 In the way non-news items have been
treated in United States courts there is an indication that so to
distinguish parts of an item would be fruitless.
Within non-news items it would appear, prima facie, to b
possible to protect educational items and not entertainment one
Such a distinction is inoperable if United States experience i
guide. A film of super-fat women exercising on new machines w
88 Jenkins v. Dell Publishing Co., 251 F.2d 447, 451 (1958) per Hastie J
(3rd Circuit).
39 Johnson v. Evening Star Newspaper Co., 344 F. 2d 507 (1965) (D.C., C.A
40o Metter v. Los Angeles Examiner, 95 P.2d 491 (1939).
protected.41 So was an item on the

been a public figure in the past but h
gaze for a considerable period.42 But
was Sutton v. Hearst Corporation 43
there was sufficient evidence of legi
case to go to trial. A reporter, workin
came across one where the deceased h
plaintiff one perfect rose a week. Th
in the same office as the plaintiff an
afar, though she had shown no interest in him. He was killed
during the Second World War. Meanwhile, she was happily
married. The reporter wrote up the story as if there had been real
affection between the two, and even inserted a constructed photo-
graph of the plaintiff cradling a rose lovingly. Peck P.J., who
dissented on the grounds that public interest was plain on the
deposed facts, would have extended the defence of public interest
to include " human interest." He judged the matter on the basis
of accepted newspaper standards ": " [w]ith any reporter alert
to news in the vicinity publicity was inevitable." 45 Unfortunately,
the majority did not dissociate themselves from the views of Peck
P.J., and may, perhaps, have agreed with him to the extent that
they held there could have been a legitimate public interest.
It can scarcely be that the proposers of the Right of Privacy
Bill wish it to be administered in the way these above cases sug-
gest it may be. There may, in fact, be no alternative position
which is capable of being maintained. The concept of public interest
would appear to be of an expanding nature if it is taken to mean
a matter in which the public have a legitimate interest.
The third possible meaning stated at the beginning of this section
was that publication must serve the good of the common weal.
This, it is submitted, would be totally unacceptable. It wbuld
require the courts to determine the objects of society in some detail,
together with the means by which these objects are to be attained;
this would define the " public interest." Secondly, it would permit
to be published only that which a person wishes to be published
concerning himself or what it is " good " for the public to know.
Those areas in which the courts are presently required to adjudge
what is in the public interest are very much smaller, or involve a
very different type of analysis of the public interest. This third
meaning of public interest would ignore the community desires,
interests, and opinions which Hastie J. so wisely considered to be
integral to a tort of privacy."'
Can the second meaning of the public interest be restricted?
The analogy of defamation comes once more to mind. Could it be
41 Sweenek v. Pathe News, 16 F.Supp. 746 (1936).

42 Werner v. Times.Mirror Co., 14 Cal.Rptr. 208 (1961) (D.C.A.).
43 98 N.Y.S. 2d 233 (1950) (S.C. (A.D.)).
44 Ibid. at p. 239.
45 Ibid. 46 Supra, note 38.
that where publication is in the media

within one of the categories upon whic
while for statements published less wid
of " qualified privilege "? However, there are two objections to
be made additional to those already mentioned in this article. The
occasions for fair comment are those in which statements of opinion
are specially important,47 while privacy deals with statements of
fact. Also, when determining an occasion of qualified privilege, the
relationship of publisher, audience, and matter must be such that
the statement should be protected irrespective of the truth of the
statement.48 Such occasions will inevitably be fewer than those in
which the audience has a legitimate interest in statements which
are ex hypothesi true.
What are these legitimate interests ? When a national newspaper
publishes the name and address of a person killed in a motor
accident, along with details of the accident, do the public in general
have a legitimate interest in the information so published ? If they
do not, then the proposed law on privacy would appear to justify
such publication only on the ground that it is the sole practical way
of informing those who knew the deceased. This in turn assumes
that those who knew the deceased have a legitimate interest in the
fact of his death, and, by obvious extension, his life.4" That they
have such an interest is, it is submitted, undeniable. From this
point it is possible to deduce that publication in the media of the
stories about the twelve-year-old mother, the acquitted man, the
former celebrity, and the spectacular suicide should be protected.
Moreover, the conclusion in the weekly rose case becomes
intelligible.
The above are examples of news items, but the United States
case law does not arrive at a different result where the events are
well past. Mere lapse of time does not destroy a defence of public
interest,50 and, provided that it would have been news when the
events occurred, later publication of the events is protected though
the interest which the public have in them is now of the non-news
kind.51 Further, lapse of time does not affect an earlier consent.
That consent is sufficient by itself to confer protection on the later
publication.52 All this, it would seem, has been held to follow from
the practical indistinguishability of news, education, and entertain-
ment which has a mere human interest.53
Passing, then, to items which are not news, the line of argu-
ment used for news items provides a little help. Not only do news
47 See London Artists Ltd. v. Littler [1968] 1 W.L.R. 607, 622.

48 See Henwood v. Harrison (1872) L.R. 7 C.P. 606, 622 et seq.
49 Obviously, the item in question will only be published because the public in
general are interested in the event qua event rather than qua event happening
to a particular person.
50 Frith v. Associated Press, 176 F.Supp. 671 (1959).
51 Sidis v. F.-R. Publishing Corp., 113 F. 2d 806 (1940) (2d Circuit).
52 Thompson v. Curtis Publishing Co., 193 F. 2d 953 (1952) (3rd Circuit).
58 See Report, para. 139, where this seems to be accepted.
items advise of an event, but also serve as the basis of a wider,

often monitory, effect. That a motor accident occurred when a
vehicle crossed the central reservation of a motorway may lead to
the installation of crash barriers, and popular pressure born of the
item may be the driving force in this. Equally, the story of a
former child prodigy living in squalor warns one of the need for
change in the way such prodigies have been treated in the past.
Indeed, some significant and useful object may be found in almost
all items in a newspaper. Are such objects to be held insufficient to
provide a defence to an action for invasion of privacy? It is dif-
ficult to say that they are insufficient, but equally difficult to find
a tenable division between those which are sufficient and those
which are not. There is a distinct danger here that the United
States cases will foreshadow the course of English law.
This all seems to demonstrate that the concept of public interest
is, indeed, of an inherently expanding nature. The United States
courts have struggled to draw a line at a logically defensible point,
or, failing that, to conceive of the general position of a line in order
to decide on which side of that line, undrawable, the case in hand
falls. They have drawn a line of sorts, but not one which the
proponents of a comprehensive tort of privacy invasion could
regard as satisfactory. There is a distinct danger that English
judges would find themselves moving towards similar decisions,
or else would move strongly towards a requirement that the
impugned statement should promote in fact, or be capable of pro-
moting, the good of the common weal. Public policy is a most
unruly horse, and its role as the yardstick for difficult cases should
make Parliament cautious in the extreme before enacting a
thoroughgoing tort of invasion of privacy.
THE RELATIONSHIP TO DEFAMATION
Clause 3 (e) in the Bill adopts the law relating to absolute and
qualified privilege in defamation into the law of privacy en masse
with one curious proviso. By that proviso, media publication can-
not be defended by the defamation law unless " the matters pub-
lished were of public concern and their publication was for the
public benefit." The proviso's field of operation is elusive. There
are only two instances of qualified privilege for media publication
--replies to attacks " and the statutory one of certain reports 55
-and none of absolute privilege. So far as reports are concerned,
the proviso is identical to that in the Defamation Act 1952 as was
recognised by JUSTICE. On that leg the proviso is redundant.
Media publication of a reply to attack is justified immediately that
attack has been made in the media, and requires no further justi-
fication; privilege is lost only for irrelevance, counter-attack, and
54 Adam v. Ward [1917] A.C. 309 (H.L.).

5a Defamation Act 1952, s. 17.
defamation of a third party.56 T

wider than this. If it is stricter th
that a true statement would be actionable whereas a false one would
not. The alternative reading, that the proviso is co-extensive wit
the common law, would serve only to render the piroviso redunda
in toto. JUSTICE intended the proviso to restrict the ambit o
privilege in defamation and cover those " common law defences o
privilege which, if abused, might enable long-buried skeletons
to be 'raked up ' with impunity in situations where there was no
conceivable public benefit to be served by s'o doing." 57 Unfortun-
ately the Report does not state which defences it was concerned
about. It is hard to envisage what long-buried skeletons would be
protected by the reply to attack privilege. On the other hand, it
may be that JUSTICE viewed the principles lying behind privilege as
granting wider protection than has been stated in this paragraph.
The writer would be among the first to subscribe to such a view,
but no wider protection is recognised in the textbooks.
The relationship of the proposed tort with that of defamation
must be carefully considered before legislation is enacted on the
topic. Defamation encompasses false statements, whether those
statements consist of fact or comment, upon any aspect of a
person's life. Privacy, on the other hand, concerns only statements
of fact about a person's private life. Where the statement impugned
as invading privacy is false, the law of defamation would appear to
be fully adequate, perhaps with the exception of defamation of the
dead.58 The Bill does not exclude false statements from its ambit,
and accordingly it narrows the existing protection for defamation
by requiring " substantial and unreasonable " invasion of private
life by a false statement. If it is thought that the existing law of
defamation gives inadequate protection against false statements
then the obvious and logical thing to do is to alter the defamation
law. The proper ambit of privacy is therefore the true statement
about a person's private life. It is submitted that, in justice, the
defences available in privacy so defined must be no less wide than
those available in defamation concerning private life. Only if a
right of privacy is so restricted, and consideration given expressly
to the relative width of defences in the two torts can the law
be effectively harmonised. JUSTICE'S Report does not discuss t
adequately.
THE PROTECTION OF PRIVACY
Desire for legal protection of one's privacy finds its stimulus in

four fears: of computers, of bugging devices and other ungentle-
manly means of obtaining information, of reporters who hound and
56 Adam v. Ward, supra, at p. 339, per Lord Atkinson; also Nixon v. O'Callaghan
[1927] 1 D.L.R. 1152 (Ont., S.C. (A.D.)).
57 Report, para. 142 (iv).
58 See ibid., para. 44.
pester, and of exposure journalism. T

different in kind from the other three. This article has been con-
cerned with the last of the fears, but one cannot complete a dis-
cussion of privacy without commenting upon bugs and pesterers.
Because each of the fears present such differing problems, they are,
it is submitted, best dealt with by different statutes and would
profit from being enacted in a sequence with perhaps a year between
each. This way the need for further action can be assessed more
accurately.
Surveillance devices
JUSTICE considered these specifically in paragraphs 131 and 149

of the Report. The technological means of obtaining information
unbeknown to the plaintiff are already manifold and are increasing
rapidly. It is therefore unhelpful to prohibit the scheduled list of
devices or actions regarded as reprehensible. In clause 9 (1) of the
Bill there appears an inclusive list of general ways of obtaining
information. The problem here considered may be dealt with
conveniently in this way or by use of an omnibus phrase such as
"the unauthorised hearing, seeing, or recording by artificial
means." It may be that a criminal sanction could be imposed.
The fruits of such activity could then be taken from the snooper
by making the information so obtained irreceivable as evidence in
any court and creating a civil right of action for any person
aggrieved by publication of the information so obtained. Other
means of obtaining the information could be covered in the same
way; for instance, " information obtained in any way which
involved the commission of an offence." The rigours of such a
general prohibition could perhaps be mitigated by introducing a
procedure similar to that required for search warrants before sur-
veillance devices may be lawfully used.
Hounding and pestering

This is a rather difficult area as so much depends on the facts
in each case. Thus, there may be an invasion of privacy when the
astronaut's wife faces a line of Press men upon going out to collect
the milk, but not when it is the Prime Minister going out during
a time of national or international stress. The use of such a phrase
as " unlawful watching or besetting " may be unavoidable even
though it leaves rather too much at large. It would be difficult to
avoid a collision with " public interest," but it may be possible to
do so.
Exposure journalism
Once many of the means by which exposure journalism obtains
its information have been thus eliminated, legal action in this area
may not be so urgent. In any case, there is no call for a remedy
for every statement about a person's

ments are entirely neutral or unobjec
In the United States there is no remed
the plaintiff in a false light or would
of reasonable susceptibilities. Even in
not a remedy automatically, but on
there would be a remedy in defamati
action is embarrassment, the appropr
such statements as defamatory and ma
subject to malice of some variety. This would provide some
needed protection consonant with the law of defamation.
CONCLUSIONS
Such alterations to the law as are suggested above may not satisfy
the proponents of a thorough-going right of privacy, but it is sub-
mitted that they provide a needed protection of individual privacy
in those areas in which it is most needed, and does this without
raising the difficulties with which United States courts have
grappled for so long and with such little success.
G. D. S. TAYLOR.*
59 Warren and Brandeis, loc. cit., pp. 216-217; see now Time Inc. v. Hil
385 U.S. 374 (1967).
* LL.M., Humanitarian Trust Student at the University of Cambridge.

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Privacy and the Public

1 " The Right of Privacy " (1898) 4 Harv.L.R. 193.

Should this right be infringed in a " s

5 JUSTIOE's proposed clause read: "where the infringement was constituted

precursor appear to raise exactly th

INVASION OF PRIVACY BY PUBLICATION

The right of privacy envisaged by the Bill involves two types of

the community can legitimately clai

11 Report, para. 16 (emphasis added).

because defamation seeks to protect

PUBLIC AND PRIVATE

The whole concept of a right of privacy requires that those matters

While this is easily enunciated the

Several illustrations of the extent of this criterion may be given.

Public actions and statements

This is considerably more difficult. There is a close relationship

17 On fair comment, see London Artists Ltd. v. Littler [1968] 1 W.L.R. 60

have, but in fact, had not seen it. In

THE DEFENCE OF CONSENT

This defence, which is contained in clause 3 (b) of the Bill, has

22 253 P. 2d 441 (1953) (Cal., S.C.).

publication is other than that foreseen

to prove useful. However, this is a furth

Since invasion of privacy by publication brings into collision the

chose one line of approach. JUSTICE

84 Report, para. 142 (iii).

For purposes of analysis, published matter m

Although this was stated in connection with sub-categorisation of

protected.41 So was an item on the

41 Sweenek v. Pathe News, 16 F.Supp. 746 (1936).

that where publication is in the media

47 See London Artists Ltd. v. Littler [1968] 1 W.L.R. 607, 622.

items advise of an event, but also serve as the basis of a wider,

THE RELATIONSHIP TO DEFAMATION

54 Adam v. Ward [1917] A.C. 309 (H.L.).

defamation of a third party.56 T

THE PROTECTION OF PRIVACY

Desire for legal protection of one's privacy finds its stimulus in

pester, and of exposure journalism. T

JUSTICE considered these specifically in paragraphs 131 and 149

Hounding and pestering

for every statement about a person's

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