Introduction

The courts in the United States were able to develop a common law tort of invasion of privacy, cast rather unusually in rights-based terms, through a synthesis of pre-existing authorities. The obvious irony for English lawyers was that the authorities principally relied on, at least in the original Warren and Brandeis thesis, were English cases from the nineteenth century. Over the century following the genesis of the law of privacy in the United States, English law stubbornly refused to follow a similar pattern.

There are four predominant approaches to problems of invasions of privacy. First, the adjustment of existing causes of action to cover invasions of privacy. Second, the piecemeal addition of new causes of action, either by reference to the circumstances in which liability is imposed (e.g., harassment or appropriation of personality) or by explicitly labelling them as invasions of privacy. Third, a general remedy declaring that, in principle, every invasion of privacy is actionable, subject to necessary qualifications limiting recovery: this might be non-exhaustive, leaving the terms and scope open-ended or conversely might be exhaustive, defining the terms and circumstances for recovery comprehensively. Fourth, the declaration that every person has a right to privacy in a general and open-ended way, without specifying the circumstances in which privacy can be invaded. The first part of the chapter considers the limitations of the first two methods, while subsequent parts consider the possibilities for adopting the third and fourth approaches within the English common law tradition.