⇒ The tort of trespass to land and to the person provided a remedy for physical invasion of a person’s property or their body

⇒ Where applicable, these torts were used in cases where the real issue was the claimant’s privacy.

• See, for example, Entick v Carrington (1765) and Bernstein v Skyviews & Genderal [1978]

⇒ Other torts, such as defamation or malicious falsehood, might also be used to protect privacy

• See, for example, Kaye v Robertson [1991]

⇒ This considered privacy, particularly of personal information, in a number of contexts, including the media, personal information kept by employers, bank, credit agencies, doctors, schools and universities, marketing and surveillance by private detectives or technological means such as telephone tapping

⇒ ‘The evidence we have received indicates that the main concern about what is termed invasion of privacy involves the treatment of personal information.’ (p.19) → This included the means by which personal information was gathered.

⇒ In Malone v Metropolitan Police Commissioner [1979], Wainwright v Home Office [2003], and Kaye v Robertson [1991] the court confirmed that there was no right to privacy in the UK

• Kaye v Robertson [1991]: “It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy” (Glidewell J).

⇒ While there have been no specific right of privacy in English law, where information was confidential, as opposed to private, there was a cause of action

⇒ A breach of confidence requires three elements:

• The information must have the necessary quality of confidentiality (i.e. it must not be in the public domain);
• It must have been transmitted in circumstances importing an obligation of confidence (i.e. the defendants must have been under an obligation of confidence);
• There must have been an unauthorised use of the information by the defendants to the detriment of the party (the claimant)

⇒ See, for example, Prince Albert v Strange (1849) and Pollard v. Photographic Company (1889)

⇒ Breach of confidence developed largely as a commercial tort i.e. used to protect trade/commercial secrets

• Morison v Moat (1851): a servant, Moat, sought to use a secret formula of his employer's. The plaintiff requested an injunction to restrain use of the formula
• Also see Argyll v Argyll [1967]

⇒ So breach of confidence was first step towards privacy law in the UK

⇒ It is said that there is no confidence in iniquity i.e. a claimant cannot claim a breach of confidence to prevent the exposure of crime or fraud

⇒ This is because it is a matter which ought to be brought to the public attention, so cannot be protected by confidence

• "There are some things which may be required to be disclosed in the public interest, in which event no confidence can be prayed in aid to keep them secret" → Fraser v Evans [1969] (Lord Denning MR)

⇒ See, for example, the Spycatcher case

⇒ In Attorney General v Observer [1990], it was held that there are three limiting principles:

1. The principle of confidentiality only applies to information to the extent that it is confidential (i.e. entered public domain)
2. The duty of confidence applies neither to useless information, nor to trivia
3. Although the law of confidence exists due to public interest to preserve confidences, there may be a countervailing public interest which favours disclosure (i.e. public safety, public interest, detecting crime)