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O’Cinneide, Colm; Hunter-Henin, Myriam; Fedtke, Jörg --- "Privacy" [2006] ELECD 201; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 50

Section Title: Privacy

Author(s): O’Cinneide, Colm; Hunter-Henin, Myriam; Fedtke, Jörg

Number of pages: 12

Extract:

50 Privacy*
Colm O'Cinneide, Myriam Hunter-Henin
and Jörg Fedtke



1 English common law
Privacy possesses an uncertain status in English common law and legisla-
tive protection for privacy interests remains piecemeal. The cautious prag-
matism of the English common law tradition is particularly marked in this
context. However, the impact of incorporation of the ECHR, and in par-
ticular of Article 8 of the Convention with its protection of a right to per-
sonal privacy, has triggered a kind of `mini-revolution'. Under the influence
of the Strasbourg jurisprudence, new remedies for breach of privacy are
slowly emerging, but not without considerable debate.
In the absence of a written constitution, there was no right to privacy
in English law. In addition, and in interesting contrast to many US juris-
dictions, no cause of action for breach of privacy has been recognized in
the English common law, confirmed by the Court of Appeal in Kaye v.
Robertson [1991] F.S.R. 62 and recently by the House of Lords in R v.
Wainwright [2003] U.K.H.L. 53.
However, a combination of legislative provisions and common law devel-
opments has over time given a degree of indirect protection to privacy inter-
ests. The common law attachment to the rule of law principle has ensured
that the English judiciary have historically adopted a narrow and restrictive
approach to the interpretation and application of police and executive
powers. In cases such as Entick v. Carrington (1765) 19 St Tr ...