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Published online by Cambridge University Press: 12 February 2016
In recent years there has been a growing concern about privacy in many countries. Consequently demands are being made that the law should afford privacy a more adequate protection. This new concern about privacy may seem surprising when we recall that people have always gossipped, that individuals have always sought information about others for various purposes, and that governments have always had an interest in knowing as much as they could about their citizens. The intensity of these recent demands for more legal protection suggests that conditions have changed, and that this change has created new threats for privacy. To deal effectively with these new threats we must first identify and understand them.
It appears that a combination of various factors, all of which are somehow related to technological developments, is responsible for arousing this interest in privacy. First is the development of the mass-media, which removed the traditional limitations on dissemination of information, and created an artifical demand for such information. Second is the development of electronic devices enabling invasions of privacy which were hitherto impossible. Third is the development and use of computerised systems for the storage and compilation of information. The threats to privacy are evident. Information about us can be retrieved from the files, or sought by detectives or journalists aided by sophisticated devices against which there is virtually no protection. This information may be used against us or disseminated in the mass-media and thus become “public knowledge”. Movements and conversations may be recorded.
1 A lively description of the various devices and their uses is given in Westin, A., Privacy and Freedom (New York, 1967).Google Scholar
2 Most of the current work on privacy is centred around questions related to data-systems. See e.g. Karst, , “The Files: Legal Controls over the Accuracy and Accessibility of Stored Personal Data” (1966) 31 L. & Contemp. Prob. 342.CrossRefGoogle Scholar And see also Farhi, C. “Computers-Data Banks and the Individual: Is the Problem Privacy?” (1970) 5 Is. L.R. 542.CrossRefGoogle Scholar
3 Artide 12 of the Universal Declaration of Human Rights 1948; Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.
4 For a comprehensive and recent comparative study see the Report of the International Commission of Jurists, published in 24 (1972) International Social Science Journal 417–604.
5 E.g., U.K.: Report of the Committee on Privacy (chairman: K. Younger), Cmnd. 5012, July 1972. Canada: Privacy and Computers, A Report by a Task Force (1973).
6 See Gavison, R., Privacy and Its Legal Protection, a D.Phil. Thesis (Oxford, 1975) especially Chapter VII.Google Scholar
7 The nature of the various solutions will become clearer below, when a few illustrations are given. It is convenient however, to start by labelling the various solutions in a comprehensive way.
8 A comprehensive treatise concerning the specific wrongs in our law of torts is still lacking, and the law may, perhaps, be given a different interpretation than the one implied here, and inferred from the elements of the tort.
9 Civil Wrongs Ordinance, sec. 34A (1974) S.H. no. 737, p. 94.
10 The Younger Report was published in 1972 (see supra n. 5). The Justice Report, Privacy and the Law, was published in 1970.
11 The Justice Report, 27, para. 108.
12 Ibid. 30–31, paras. 119–24.
13 Ibid. 32–33, para. 127. Cf. the Bill proposed by the Justice Committee (App. J, p. 59), esp. secs. 1 and 3.
14 (1973) H.H. no. 1085, p. 448.
15 See secs. 1, 4, 5 and 16 of the Bill proposed by the Kahn Committee, infra p. 176.Google Scholar
16 This advantage was pointed out in the English discussion by Mr. A. Lyon, a member of the minority in the Younger Report. See his point in The Younger Report (supra n. 5) in para. 23 of his own dissent. The same point has been made by MacCormick, , “A Note Upon Privacy” (1973) 89 L.Q.R. 23.Google Scholar
17 See the words of the Lord Bishop of Hereford in the House of Lords debate concerning the Younger Report, Official Report, vol. 343, col. 135: “Law can have an effect in influencing behaviour in a particular direction over and above its functions in penalising breaches of the law. Its declaratory function would be particularly important in an area like that of privacy…”.
18 (1973) H.H. no. 1085, pp. 452, 453.
19 Davis, , “What Do We Mean by ‘Right to Privacy’?” (1959) 4 S. Dak. L.R. 1, 6.Google Scholar
20 Ibid. at 18.
21 Ibid. at 8–9.
22 Ibid. at 23.
23 Ibid. at 24.
24 For a discussion of the American law of privacy see Prosser, , Torts (4th ed., 1971) 802–18.Google Scholar In a few cases individuals recovered for invasion of their privacy although no loss of privacy was involved. A typical case is Birmingham Broadcasting Co. v. Bell 259 Ala. 656, 68 So. 2d 314 (1953) in which an entertainer recovered for invasion of his privacy when the defendants published, by mistake, that he would participate in a certain programme. The basis of the complaint was loss of earnings and appropriation of his reputation rather than loss of privacy.
25 The majority of the Younger Committee, which rejected the idea of a general right to privacy or even a general remedy measure, itself emphasizes that additional protection of privacy should be granted mainly through extra-legal forces (p. 202, sec. 561). But as there is no discussion in the majority's conclusions of the independent aspect of form, it is only natural that there is no explanation why a combination of a legal declaration of the importance of privacy with the scope of protection the majority thought appropriate was not considered.
26 It should be noted that this objection, like the one advanced by Davis, applies to general-remedy measures only. Declarations of right are left unshaken.
27 On this function of principles see Hare, , “Principles” (1972–1973) 73 Proceedings of the Aristotelian Society, 1, 14.CrossRefGoogle Scholar
28 See e.g. The Civil Wrongs Ordinance (New Version) sec. 35 (1972) 2 L.S.I. (N.V.) 14; and see the Land Law 1970, secs. 16 and 17 (1969) 23 L.S.I. 283.
29 Defamation Law 1965, 19 L.S.I. 254.
30 See also the Younger Report, p. 205, par. 663; and, to the same effect, Mr. Carr's words in opening the discussion of the Younger Report in the House of Commons, Official Report, 13 July 1973, col. 1959. For a discussion of this feature of English law see Marshall, , Constitutional Theory (1971) 125–26.Google Scholar
31 For a detailed discussion see Privacy and its Legal Protection, cit. supra n. 6, where it is argued that a declaration of right approach should not have been adopted in England for this reason.
32 Likhovski, , Israel's Parliament (O.U.P., 1971) 13–14.Google Scholar
33 For the developments leading to this resolution see Ibid. at 16–19. For its adoption see: (1950) 5 Divrei HaKnesset 1721–2, 1743.
34 Barnet v. Barnet (1958) 12 P.D. 565.
35 Land Law, cit. supra n. 28.
36 See the decisions cited in Tedeschi et al., The Law of Torts (General Part) §86 p. 443, n. 1.
37 Rabinovitz v. Mirlin (1957) 11 P.D. 1225.
38 See the explanatory notes, supra, n. 18.
