Developments in the Law Surrounding an Action for Breach of Confidence
In this essay I will argue that the developments in the law
surrounding an action for breach of confidence have not drawn an
equitable and acceptable balance between the privacy of, and free
expression about, public figures due to the evolutionary nature of
common law. Furthermore, due to the unwillingness of the judiciary to
address an independent tort of privacy it may well be time for the
Government to legislate. I will address this by considering the
development of the laws of breach of confidence prior to the
introduction of the Human Rights Act in 2000, and by looking at how
they have addressed the balance between free expression and a right to
privacy in its aftermath.
Protection of Privacy through Breach of Confidence.
The existence of a right to privacy in English law has been a source
of judicial and academic debate for the past two centuries. The law of
breach of confidence has traditionally been cited as the foremost
guardian of any right to privacy. In Prince Albert v. Strange,
breach of confidence was applied successfully with Sir Knight Bruce
V.-C. referring to a "sordid spying into privacy of domestic life".
It was this case that formed the centrepiece of Warren and Brandeis'
affirmation of a right to privacy, which led to the development of the
law in America, yet in England there was still a preference to deal
with potential privacy cases through existing rights of action.
The law of breach of confidence was widened over the course of the 20th
Century to the point where Lord Keith stated in Attorney-General v.
Guardian Newspapers that: "Breach of confidence involves no more
than an invasion of personal privacy. Thus in Duchess of Argyll v.
Duke of Argyll  Ch. 302 an injunction was granted against the
revelation of marital confidences. The right to personal privacy is
clearly one which the law should in this field seek to protect."
The court delivered three extensions of breach of confidence to
consider alongside the basic elements originally suggested in Coco v.
A.N.Clark (Engineers). By 1990, breach of confidence had evolved
sufficiently to encompass certain parts of privacy. The following year
however, Glidewell L.J. blew the issue wide open with his judgement in
Kaye v. Robertson.
Kaye v. Robertson - Privacy Flaws Exposed
"It is well-known that in English law there is no right to privacy,
and accordingly there is no right of action for breach of a person's
This case demonstrated clearly that English law at the time was ill
equipped to deal with all cases of privacy, despite previous
optimistic rulings. As Bingham L.J. precisely expressed, this was a
scenario where there was no public interest in the publication of the