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 right to privacy until they think that it has been lost. Unlike other forms of protection such as copyright, which ensures the author is compensated after the work is published, the right to privacy is lost as soon as there is a publication.

In such a scenario, a claim for breach of confidence can be made. The law of confidential information can be used to protect information that falls outside the legal protection afforded to other intellectual property rights like patents or trademarks. In some ways, the law in this area is based on a simple moral standard: if someone has said they will keep a secret, they should do so.

To give a recent high-profile example, the Duchess of Sussex, Meghan Markle, is reportedly suing the Mail on Sunday alleging infringement of copyright, breach of the Data Protection Act and misuse of private information (breach of confidence) for its publication of parts of a letter she wrote to her father. Her father shared the letter with the newspaper. The letter, the Duchess will no doubt say, was obviously private.

What qualifies as "confidential"?

To come within the definition of confidential information, three factors must be present:

  1. the information must the “have the necessary quality of confidence”;
  2. the information must have been disclosed in circumstances which shows that there is an obligation of confidence; and
  3. there must be an unauthorised use or disclosure of that information.

If this test is met, then the person receiving the information is not allowed to use it to the prejudice of the one giving it without their consent. This includes disclosing it to third parties.

Further Information

We look at the law of confidence in more detail in our 2020 Data Webinar series. In particular, we consider what data is confidential, what is not, and what steps can be taken if data is taken?

The webinar focuses on a scenario where a third party, such as a former employee, takes confidential information from an employer and we will discuss the remedies available.

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