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Book Review: “Remedies for Breach of Privacy” edited by Jason N E Varuhas and N A Moreham – Emma Foubister
This post was originally featured on Inforrm, the International Forum for Responsible Media blog.
This book is a collection of essays from leading academics, practitioners and judges on questions raised by the emergent law of remedies for breach of privacy. It arose out of the International Workshop on Remedies for Breach of Privacy, held at Melbourne Law School in December 2016, which encouraged new thinking about the common law approach to this topic.
Recent developments in the legal protection of privacy have resulted in an increased demand for preventing violations of claimants’ privacy or obtaining redress after violations have taken place. The core themes of this collection range from injunctions and money remedies, to legal classification and cross-border issues.
Several essays consider the differing legal bases for protection of the right to privacy across common law jurisdictions, from extending the equitable protection of confidences to developing a tort of infringement of privacy. The basis for protection affects the remedies available, and the book includes stimulating discussions about the responses in each jurisdiction. Richard Garnett’s chapter on the cross-border implications of invasions of privacy provides an insightful comparison of the approaches in Australia, Canada, England and New Zealand.
Exploration of the bond between right and remedy is another core theme of the collection. Four of the chapters focus on the availability of damages for breach of privacy in the absence of consequential or factual losses. Jason NE Varuhas argues that such damages should be available and are best conceptualised as “normative” damages for wrongful interference with the privacy interest itself. They compensate for a loss constructed by the law and give effect, at the remedial stage, to the policies that underpin creation of the primary rights. Nicole Moreham also supports the availability of such damages, contending that they should be understood as compensating for the loss of dignity and autonomy inherent in all breaches of privacy.
In contrast, Robert Stevens is sceptical about the justification for affording legal protection to privacy through the imposition of liability and argues that damages should only be available for consequential factual harm because the protection of privacy is not of the same order as other basic rights protected by the common law. Eric Descheemaeker argues that it is incoherent to allow recovery of compensatory damages for both the violation of the right in itself and the intangible consequential harms that flow from the wrong, such as mental distress.
These chapters provide timely contributions to the debate about whether breach of a privacy right in itself constitutes a compensable harm. In the recent case of Lloyd v Google LLC  EWHC 2599 (QB) (see case comment), a claim for damage under the Data Protection Act was said to arise for: (1) infringement of data protection rights; (2) the commission of the wrong itself; and (3) loss of control over personal data. Warby J dismissed each argument on the basis that they did not give rise to a good arguable claim for “damage”. He found that the claim required proof not just of a contravention of the DPA but also of consequent damage. As demonstrated by the contrasting views expressed in the book, the question of the availability of damages for breach of privacy is far from settled, and it remains to be seen how the question may be addressed by the senior courts.
In a chapter on privacy injunctions and the rule of law, Sir Michael Tugendhat discusses the history and development of pre-publication interim non-disclosure orders, including PJS v News Group Newspapers Ltd  UKSC 26. Interestingly, he foreshadows the controversy surrounding Lord Hain’s decision to name Sir Philip Green in the House of Lords as the individual who obtained an interim-injunction against the Daily Telegraph. Lord Hain’s decision has been criticised (see post by Tom Double) as flouting the rule of law, which requires the legislature and the executive to refrain from interfering with the administration of justice. In PJS, a breach of the principle was only avoided by the Speaker of the House of Commons intervening to prevent the claimant being named in Parliament. Sir Michael notes that a Joint Committee on Privacy and Injunctions was set up to assess the need for a rule against breaking court orders in Parliament, but the Committee did not see it as a sufficiently frequent problem. Perhaps following the controversy around Lord Hain and Philip Green, the need for a rule will be revisited.
Overall, this book offers a useful range of insights into the new and developing issues associated with privacy remedies. It is a valuable read for practitioners or anyone with an interest in the practical implications of the development of privacy law. The themes discussed also raise profound questions about fundamental principles, such as freedom of expression and the rule of law, with ramifications extending beyond the field of privacy.
Emma Foubister is a barrister at Matrix Chambers.