CHAPTER 5: LEGAL CONSTRAINTS
power, it certainly may affect the person and property of every man in this
kingdom and is totally subversive of the liberty of the subject.”9
5.8.
These are celebrated cases, which have not been overruled. But they have not
formed the basis of a common law right of privacy, for two reasons.
5.9.
First, they were not explicitly decided by reference to the concept of privacy. The law
of trespass applied, so the judgments focus on property rather than privacy issues.10
5.10.
Secondly, the courts have rejected attempts to rely on those cases as authority for
the principle that there is a common law right to private communications.
5.11.
(a)
The High Court held in 1979 that the 18th century warrant cases did not provide
a basis for a claim to privacy in respect of phone tapping.11 Indeed it rejected
the idea that there was any common law right to privacy in phone calls. ViceChancellor Megarry concluded that it was for Parliament to legislate to protect
privacy if it wanted to, and that the right to private communications does not
exist in the common law.12 Mr Malone had therefore to go to the ECtHR in
order to establish that he had a right to communicate in private and that the
interferences with that right had not been in accordance with the law.13
(b)
In a recent case before the IPT,14 the Tribunal was not persuaded that these
cases added anything to the analysis.
The perhaps surprising outcome is that the common law, shorn of the influence of the
ECHR, barely recognises the right to privacy or private communications.15
The European Convention on Human Rights
Legal framework
5.12.
9
10
11
12
13
14
15
The Council of Europe is an international organisation established in 1949 and
currently numbering 47 European states as its members. In 1950 the Parliamentary
Wilkes v Wood (1763) Lofft 1, 98 ER 489.
Though when communications were written on paper, concepts of property and privacy were closely
related; and these cases played a part in enabling American judges to derive privacy rights from, in
particular, “the right of the people to be secure in their persons, houses, papers, and effects” in the 4th
amendment to the US Constitution.
Malone v Commissioner of Police (No. 2) [1979] 1 Ch 344, pp. 368-369.
Ibid., pp.372-374.
Malone v UK, (Application no. 8691/79; judgment of 2 August 1984).
Liberty and others v The Secretary of State for Foreign and Commonwealth Affairs and others, Case
Nos. IPT/13/77/CH; 13/92/CH; 13/194/C and 13/204/CH, [2015] UKIPTrib 13_77-H [Liberty IPT Case],
judgments of 5 December 2014 and 6 February 2015.
See Kaye v Robertson [1991] FSR 62, per Glidewell LJ with whom Bingham and Leggatt LJJ agreed:
“It is well known that in English law there is no right to privacy and accordingly no right of action for
breach of a person’s privacy”; Wainwright and another v Home Office, [2003] UKHL 53; [2004] 2 AC
406, per Lord Bingham, para 26: “All three judgments are flat against a judicial power to declare the
existence of a high-level right to privacy and I do not think that they suggest that the courts should do
so”; and R (Catt) v Metropolitan Police Commissioner [2015] UKSC 9, per Lord Sumption, para 2: ”The
[US] concept of a legal right of privacy whether broadly or narrowly defined fell on stony ground in
England. Its reception here has been relatively recent and almost entirely due to the incorporation into
domestic law of the [ECHR].”
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