On January 25, 1990, Gorden Kaye, a well-known English actor, was in an automobile accident in which he sustained substantial head injuries.(1) While recovering from brain surgery in the hospital, journalists gained unauthorized access to his private room and interviewed and photographed him in his debilitated state.(2) Kaye asked for "an interlocutory injunction to prevent publication [of the article and pictures,] alleging malicious falsehood, libel, passing off and trespass to the person."(3) He was granted the injunction,(4) but on appeal, Judge Glidewell replaced the lower court's injunction with one less restrictive. He said:
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.
The facts of the present case are a graphic illustration of the
desirability of Parliament considering whether and in what circumstances
statutory provision can be made to protect the privacy of individuals.(5)
Currently there is no domestic legal recourse in the United Kingdom for a person in Kaye's circumstances,(6) but this state of affairs is soon to change. On November 9, 1998, Parliament passed The Human Rights Act of 1998,(7) which incorporated the European Convention on Human Rights (ECHR)(8) into domestic law.(9)The ECHR guarantees individuals a general right to privacy,(10) as well as the right to freedom of expression.(11) Although originally meant to protect an individual's human rights from violations by the State, the ECHR could be interpreted to protect the individual's rights from violations by nongovernmental entities such as the press.(12) This interpretation would give a person in Kaye's situation a legal remedy.(13)
The untimely death of Princess Diana led to the public condemnation of the press for their alleged role in the accident.(14) This tragedy cemented the public's view that the press had grossly overstepped its bounds for invading a person's privacy for no other reason than its own financial profit.(15) Diana's death and the incorporation of the ECHR into UK domestic law mean that the right to privacy will most likely result in the development of laws governing invasive intrusions on individuals by nongovernmental entities such as the press.(16) It is far from settled, however, what shape this law will take.(17)
The first part of this Comment discusses whether the ECHR rights embodied in the Human Rights Act should have a higher, more protected status than other statutory rights. A brief description of the origins and structure of the ECHR is given, detailing the provisions of the right to privacy and freedom of expression. The paper then examines two models that other countries used to establish their own versions of the rights embodied in the ECHR, and analyzes the impact of each model on the citizens, government, and legal systems of the United Kingdom. This section concludes by observing how future changes to the international ECHR might impact domestic UK law.
The issue of whether a right to privacy exists, especially from invasions by the press, is the subject of the second part of this Comment. The unjustified invasion of a person's right to privacy by the press is a growing and important problem.(18) In fact, some aspects of a privacy right have been recognized and protected by UK law, although different terminology and legal constructs have been used.(19) However, case law, such as Kaye v. Robertson, illustrates that the existing remedies for violation of this right to privacy do not adequately protect the individual from unjustified, invasive journalistic tactics.(20)
Recognizing the need for an adequate remedy, this Comment addresses whether laws implementing this new right to privacy should be established by the British Parliament or courts. After examining the difficulties in defining the broad concept of a right to privacy, the Comment analyzes the present stances of the press, government, and judiciary as well as the arguments for and against the protection of privacy interests in each of these arenas. …