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Law Lords last week rejected an attempt to establish a right to sue for invasion of privacy, in a landmark ruling that has divided media lawyers.
The case, Wainwright and another v Home Office, concerned the strip-search of a mother and son on a prison visit. The House of Lords upheld the Court of Appeal's decision that Mary Wainwright should receive no damages for the search and that her son, Alan, was entitled to £3,750 for the incident, which took place at Armley prison in Leeds in January 1997. The two were searched while visiting Mrs Wainwright's son and Alan's half-brother, Patrick O'Neill, who was awaiting trial on a murder charge and was suspected of dealing in drugs while in prison. The Law Lords held that there was no actionable right of privacy.
According to Martin Soames, a media partner at DLA, the judgment was "a very conservative ruling". "Given Parliament's refusal to acknowledge its responsibilities, it is pitiful that the House of Lords has shied away from the challenge of privacy," he said.
Giving the judgment, Lord Hoffman flagged up the action by Michael Douglas and Catherine Zeta-Jones (Douglas v Hello! Ltd), in which Lord Justice Sedley considered the "concept of privacy". "The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy," he said.
Lord Hoffman said: "I do not understand Lord Justice Sedley to have been advocating the creation of a high-level principle of invasion of privacy. His observations are in my opinion no more (although certainly no less) than a plea for the extension and possibly renaming of the old action for breach of confidence." Later the judge said that this was an area "which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle".
Lord Scott said that the important issue of principle was not "whether English common law recognises a tort of invasion of privacy". He added: "Whatever remedies may have been developed for misuse of confidential information, for certain types of trespass, for certain types of nuisance and for various other situations in which claimants may find themselves aggrieved by an invasion of what they conceive to be their privacy, the common law has not developed an overall remedy for the invasion of privacy."
According to Soames, the Law Lords have applied the law "narrowly" rather than recognising new concepts, and in the process, "passed the buck". By contrast, Meryl Evans, a media partner at Reynolds Porter Chamberlain, contended that Lord Hoffman firmly "closed the door on a general law of privacy" and was "very conscious of the importance of the decision". "Otherwise everyone from public authorities, private individuals, to the press, would have to have regard to their conduct to account for speculative actions being brought by people who had suffered the slightest indignity," she said. "To my mind, these are the sorts of actions that should not stand in damages."