New Dimensions in Privacy Law: The ‘right’ of privacy in England and Strasbourg compared

Introduction It is a theme of great durability in English common law: the judiciary will not – or cannot – develop a general tort of privacy, a refusal recently and most emphatically endorsed by the House of Lords in Wainwright v. Home Office . However, the thesis of this chapter is that the decision of their Lordships in Campbell v. MGN Ltd effectively gives rise to precisely such a tort, albeit with the proviso that there must be some misuse of ‘information’ for a cause of action to lie. While wholly failing to resolve the issue of the horizontal effect of Article 8 in terms of dicta at least, their Lordships made Articles 8 and 10 of the European Convention on Human Rights (ECHR) the centrepiece of the new cause of action they effectively introduced. My argument that a new tort has been introduced in all but name will be based upon two contentions: first, that the second limb of the breach of confidence action – requiring that there must, in addition to being unauthorised use of confidential information be ‘circumstances importing an obligation of confidence’ – has been decisively and unambiguously removed; second that the first limb – that the information must have ‘the quality of confidence’– has been transformed, the notion that the information must be ‘confidential’ having, essentially, morphed into a requirement that it be ‘private’ or ‘personal’ information.