Kaye v Robertson [1991] FSR 62

Facts

• The claimant, Gordon Kaye, was photographed and had personal details about his condition published without consent while he was recovering in hospital after a serious accident.
• Despite Kaye’s objections, a tabloid newspaper published the photographs and details.
• Kaye sought legal remedy for invasion of privacy, raising concerns about the protection of his private life and the ability to give informed consent to media coverage.
• The courts were presented with claims around the unauthorized intrusion and publication.
• The court ultimately found no actionable tort of invasion of privacy under English common law at that time.

Issues

1. Whether English common law recognised a specific tort for invasion of privacy that could provide a remedy for the unauthorized publication of private information.
2. Whether alternative legal mechanisms, such as breach of confidence, defamation, or trespass to the person, provided adequate protection for privacy interests.
3. Whether the courts should establish a new tort for invasion of privacy or defer such development to Parliament.

Decision

• The court held that English common law did not contain a general tort for the invasion of privacy.
• It was emphasised that any creation of a new privacy tort was a matter for Parliament, not the judiciary.
• The court acknowledged alternative actions such as breach of confidence or defamation might protect some aspects of privacy but were not sufficient to address all privacy concerns presented by the facts.
• The legal claim of invasion of privacy could not proceed, leaving Kaye without a common law remedy on these facts.

Legal Principles

• English common law did not recognise a general right or tort of privacy at the time of the decision.
• There was reluctance for courts to create new torts without a clear need and precise definition of the wrong.
• The absence of a comprehensive concept or definition of privacy prevented the establishment of a privacy tort.
• Legal redress for privacy breaches frequently fell under alternative actions such as breach of confidence, defamation, or trespass to the person.
• Legislative intervention, such as the Human Rights Act 1998 incorporating Article 8 ECHR, has subsequently altered the legal context regarding privacy protection, but these developments postdate the decision.
• Breach of confidence has since expanded in scope to address privacy-related harm, partly in response to the limitations demonstrated in this case.

Conclusion

Kaye v Robertson [1991] FSR 62 confirmed the absence of a general tort of invasion of privacy under English law at the time, underscoring the need for legislative action to address privacy protection and marking a foundational point for later legal evolution in this area.