Introduction

Unlike information relating to governmental matters which are expressly protected from unauthorised disclosure under the Official Secrets Act, information pertaining to individuals receives no such blanket legislative protection in Singapore. There is also no common law “torts of privacy” in Singapore.

In the UK, the courts effectively debarred themselves from developing one by continually repeating the mantra that no such right was known to the common law and, in Kaye v Robertson [Kaye v Robertson [1991] FSR 62 CA], went so far as to state that it is for Parliament to act. However, Parliament, for whatever reasons of their own (possibly for fear that there will have to be a “public interest” exception to privacy thus allowing disclosure of embarrassing but not sensitive information), did not respond. That is until 1998 when the UK Parliament enacted the Data Protection Act 1998 and the Human Rights Act 1998. There was an earlier Data Protection Act 1984 but there was no recognition of Data Protection as a privacy matter. In July 1997, the Labour government published a White Paper placing Data Protection firmly on the government’s human rights agenda. In January 1998, the Data Protection Bill was introduced in the House of Lords. Speaking at second reading, Lord Williams of Mostyn (Parliamentary Under Secretary of State at the Home Office) said: “It [Data Protection] shares common ground to that extent with the Human Rights Bill. That Bill will improve the position of citizens of this country by enabling them to rely on the wide range of civil and political rights contained in the European Convention on Human Rights. Those rights include the right to respect for private and family life. The Data Protection Bill also concerns privacy, albeit a specific form of privacy: personal information privacy. The subject matter of the Bill is, therefore, inherently important to our general social welfare.”  Thus the right to privacy was sneakily born in the UK although strictly speaking the Human Rights Act only creates privacy rights enforceable against public authorities. [Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(3)(a) provides that a court is a public authority.]

Many other Western countries have their own privacy legislation. These include Australia (Privacy Act 1988), Canada (Federal Privacy Act and Regulations), New Zealand (Privacy Act 1993), the United States (Privacy Act 1974) and several other European nations.

These laws allow an individual whose privacy rights are infringed to make a legal claim against anyone who publicly discloses private matters about that individual without his consent. The usual remedies available against such infringement would include lodging the necessary complaints to a relevant authority or to consider issuing injunctions to restrain such acts and to claim for compensation for mental distress and other foreseeable damage.

The English Common Law Position

Our starting position is the common law and the Court of Appeal decision of 1990 in Kaye v Robertson. ‘Allo ‘˜Allo star Gordon Kaye had been hospitalised following a car accident in which he sustained serious head injuries. Whilst convalescing in a private room at Charing Cross Hospital, a Sunday Sport photographer and journalist entered his room, took photographs and purported to interview him. An injunction was granted preventing publication and the newspaper appealed to the Court of Appeal.

Their Lordships were appalled. Lord Justice Bingham considered that “Any reasonable and fair-minded person hearing the facts would in my judgment conclude that these defendants had wronged the plaintiff” and expressed his “great sympathy” for Mr Kaye and strong distaste for the newspaper’s conduct. Mr Kaye’s injuries were so severe that prior to transfer to his private room, he had first been on a life support machine, and then in intensive care. For fear that his recovery might be hindered if he had too many visitors, and to lessen the risk of infection, the hospital had placed notices at the entrance to the ward asking visitors to see a member of staff before visiting. A list of persons who might be permitted to see Mr Kaye was agreed with hospital staff. A similar notice to that on the entrance to the ward was pinned on the door of his room. Ignoring the notices, and without being seen or intercepted by hospital staff, the Sunday Sport gained access to his room. Although Mr Kaye apparently agreed to talk to them, and did not object to their photographing various cards and flowers in his room, subsequent medical evidence showed that he was in no fit condition to be interviewed or to give any informed consent to be interviewed. In addition to the photographs of the cards and flowers, the Sport took several of Mr Kaye himself, both in colour and monochrome, which revealed substantial scarring to his head. After some time members of the nursing staff became aware of what was happening, and attempted, without success, to persuade the journalist and photographer to leave. Eventually they were ejected by security staff. Just a quarter of an hour later, Mr Kaye had no recollection whatsoever of the incident.

Because there was no actionable right to privacy known to English law, Mr Kaye attempted to shoehorn his claim in libel, malicious falsehood, trespass to the person and passing off, but not, it is interesting to note, in breach of confidence. The Court of Appeal considered that the test for malicious falsehood was made out, and as a result was able only to grant a toothless injunction which did not prevent publication of the material, but merely restrained the Sunday Sport from suggesting that Mr Kaye had consented to the interview or photographs being taken.

In their judgments, all three members of the Court of Appeal urged Parliament to consider enacting legislation to protect privacy. Lord Justice Bingham said,

“This case… highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens. … If ever a person has a right to be let alone by strangers with no public interest to pursue, it must surely be when he lies in hospital recovering from brain surgery and in no more than partial command of his faculties. It is this invasion of his privacy which underlies the plaintiff’s complaint. Yet it alone, however gross, does not entitle him to relief.”

Lord Justice Leggatt stated that the abuse of the freedom of the press could only be ensured by the enforcement of a right to privacy, which “has so long been disregarded here that it can be recognised now only by the legislature. … [I]t is hoped that the making good of this signal shortcoming in our law will not be long delayed”. Lord Justice Glidewell, giving the lead judgment, said “˜The facts of this case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals”.

But the old case of Prince Albert v. Strange [Prince Albert v. Strange (1849) 1 H & Tw 1, 21-22], which was the inspiration of developments in American law on privacy did recognise the right to an “inviolate personality” in the context of the plaintiff’s right of property. The case arose when Prince Albert, husband of Queen Victoria, wanted the courts to stop his private paintings being exploited for commercial purposes. The Vice-Chancellor in the Prince Albert v. Strange declared that:

“Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known.”

The judgement in the Douglas v Hello! Ltd [Douglas v Hello! Ltd [2005] EWCA Civ 595], concerning the unauthorised scoop publication by a competitor magazine of the Douglas-Zeta Jones wedding photographs, pre-sold to OK magazine, although declined to hold that there was an existing English tort of privacy, as such, but decided in favour of the claimants by the breaches of privacy being treated as breaches the law of confidence. Observers claim that that judgement inched English law towards a tort of privacy.

Subsequent to the Human Rights Act, the issue reared its head again in Campbell v MGN Limited. [Campbell v MGN Limited [2004] UKHL 22.] The information published by the Mirror about Naomi Campbell was divided into five categories:

1. the fact of her drug addiction;
2. the fact that she was receiving treatment;
3. the fact that she was receiving treatment at Narcotics Anonymous (“NA”);
4. the details of her treatment, i.e. how long she had been attending meetings, how often she went, how she was treated, the extent of her commitment and the nature of her entrance on the specific occasion; and
5. the photograph of her leaving a specific meeting with other addicts.

It was common ground between the parties that in the ordinary course information in all of these categories would attract the protection of Art 8 of the European Convention on Human Rights (“European Convention”), but it had been conceded that Miss Campbell’s public lies about her addiction precluded her from claiming protection for the publication of material in categories (1) and (2). Her claim for breach of confidence was therefore brought over the publication of material in categories (3) to (5) only.

In certain respects the information published was inaccurate. The articles stated that she had been attending NA meetings for three months, when in fact it was two years. The frequency of her attendance at meetings was greatly exaggerated and the photograph showed her leaving a meeting, not arriving as was stated in the caption. However, of the three Law Lords who found for Miss Campbell, only one, Lord Hope, dealt with the issue of inaccuracy and only after he had already concluded that the material published in categories (3) to (5) was published in breach of confidence. He observed that “there is a vital difference between inaccuracies that deprive the information of its intrusive quality and inaccuracies that do not. The inaccuracies that were relied on here fall into the later category. … These were errors of a minor nature only, which did not affect the overall significance of the details that were published. I would hold only that they did not detract from the private nature of what was being published”.

The progression of the Campbell case from judgment at first instance to the decisions of the Law Lords is itself illustrative of the fact that confusion and chaos reign in privacy law. Over the whole course of the litigation, five eminent judges found against Naomi Campbell and four in favour. But at the end of it all, was the position any clearer?

The House of Lords held that the law imposes “a duty of confidence” whenever a person receives information which he knows or ought to know is fairly and reasonably to be regarded as confidential or private. The essence of the tort lies in the misuse of private information. [Campbell per Lord Nicholls at para 14, per Lord Hope at para 85. Note that although the House was divided over the outcome of the appeal, Lord Hoffman stated at para 36 that the importance of the case lay in the statements of general principle on the way the law should strike a balance between the right to privacy and the right to freedom of expression, on which it was unanimous, and although the principles were expressed in varying language, he said, “speaking for myself I can see no significant differences”.] The values enshrined in Arts 8 and 10 of the European Convention are now part of the cause of action for breach of confidence and the court should be aided by adopting the structure of Art 8 and the approach of the European Court of Human Rights to it.

[Article 8 reads:
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 10 reads:
FREEDOM OF EXPRESSION
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.]

In essence, the touchstone of the Art 8 right to a private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy. Where information is obviously private, the situation will be one where the person to whom it relates can reasonably expect his privacy to be respected. There is normally no need to go on and ask whether it would be highly offensive and objectionable to the reasonable man of ordinary sensibilities for it to be published but this should be done where there is room for doubt and the court should put itself in the shoes of a reasonable person in the claimant’s position.

The Australian Common Law Position

In Australia, the courts seem to be less restrained in developing a tort of privacy although there has yet to be any clear judicial pronouncements in favour of such a tort. We begin with the High Court of Australia’s judgment in the Lenah Game Meats case. [Australian Broadcasting Corporation v Lenah Game Meat Pty Ltd, (2002) 208 CLR 199] The dispute concerned a commando raid by an animal rights organisation upon an abattoir which was involved in the slaughter of brush-tail possums. The animal activists broke into the premises of the abattoir and installed hidden cameras which recorded the somewhat distressing activities of stunning and killing the possums. The video recording was passed to the Australian Broadcasting Corporation. The abattoir applied to the court for an injunction preventing the ABC from televising the video, lest the graphic portrayal of the plaintiff’s activities should dissuade customers from purchasing its products. The abattoir submitted to the court that the broadcasting of the video would constitute an actionable tort of the invasion of its privacy. If the relevant privacy being invaded had been that of an individual the decisions of the court may have been more favourable to the plaintiff. But being concerned only with the “privacy” of a corporation, the court dismissed that application. However, the court emphasised that its decision should not be construed as meaning that it precluded the existence of an actionable right to privacy. In effect, the court opened the door to the Australian courts to establish a tort of breach of privacy.

This door was further opened in a Queensland District Court’s judgement in Grosse v Purvis [Grosse v Purvis [2003] QDC 151 (16 June 2003)]. It established that it is possible to sue for breach of privacy in common law, that is, that there can be a civil action for damages based on an actionable right of an individual to privacy. Sizeable damages were awarded.

It is a fair guess that Australia is moving fairly decisively, rather than inching its way, toward a tort of privacy. Moreover, there is a need to take account of a related judicial comment in the Grosse v Purvis case, to the effect that there is also a tort of harassment that can potentially be utilised.

The Singapore Solution

In Singapore there are no decisions on the “tort of privacy”. This does not mean that if a case similar to Gordon Kaye’s or Naomi Campbell’s arises in Singapore that there is no remedy. The Singapore courts have in almost similar situations allowed for remedies under the law of defamation.

In Chiam See Tong v Xin Zhang Jiang Restaurant [Chiam See Tong v Xin Zhang Jiang Restaurant Pte Ltd [1995] SGHC 109], the Singapore High Court held that the use of the photograph of Chiam See Tong (a well-known opposition political figure), for commercial purposes was defamatory. The judge stated:

“I considered the three advertisements on the basis set out above and also in the context of the commercial purposes of the defendants and the circumstances in which those advertisements were being circulated. I came to the conclusion that all three advertisements were defamatory of the plaintiff and that to the ordinary English reader, who did not read Chinese, the photographic portrait suggested that the plaintiff had consented to the use of his photograph for publicity either for gain or to sponsor a private restaurant and that he had done so by taking advantage of his position as a Member of Parliament and also for the benefit of promoting himself as an advocate and solicitor. In my view, a substantial proportion of the responsible and right-thinking English but non-Chinese readership would have thought less well of the plaintiff after reading the handbills. “

This decision was followed in the case of Hanis v Integrated Information Pte Ltd [Hanis Saini Hussey v Integrated Information Pte Ltd (Lim Soo Boon t/a Tiffany Promotions, Third Party) [1998] SGHC 219]. Again photographs of a well-known Singapore model was used in advertisements of a social escort agency without her consent. The decision was based on defamation and infringement of copyright. The judge said “The use of the print in the context of the advertisement for the social escort agency is defamatory as is evident from the reaction of those who telephoned the Plaintiff on seeing the advertisement.” Several paragraphs later he held that “In view of the Plaintiff’s high profile modelling career and the wide circulation of the print in connection with the Action for Aids campaign, the advertisement with the pictorial representation identical with the print would be identified with the Plaintiff by a sizeable section of the public if not at least by those in or connected with the modelling industry. I therefore held that the advertisement was defamatory of the Plaintiff.”

It must be accepted that these 2 cases (unlike Kaye’s and Campbell’s cases) do not involve newspapers where the defence of fair comment can arise. What is clear is that the Singapore courts are more willing to use the accepted causes of action (like defamation) to remedy a wrong that otherwise might not be successful without a “tort of privacy”.

Whether Singapore follows the English position or the Australian position on the “tort of privacy” remains to be seen.

If the English position is adopted, then the reasonings in the Campbell Case, interesting though it may be, is unlikely to be adopted by Singapore courts since there is no Singapore equivalent to Art 8 of the European Convention. Although Article 12 [Article 12 states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”] of The United Nations Universal Declaration of Human Rights (“UDHR”) has a statement concerning privacy, the document itself is not a binding document under international law. [Kevin YL Tan’s article “Fifty Years Of The Universal Declaration Of Human Rights: A Singapore Reflection” has only this to say about Article 12: “There is no constitutional guarantee of a right to reputation or privacy in Singapore. The right to reputation is founded in common law and is protected by private action in the torts of libel, slander and defamation.”] Singapore is not a signatory of the 2 binding treaties that related to the UNDHR [The International Covenant on Economic, Social and Cultural Rights 1966 and The International Covenant on Civil and Political Rights 1966].

If the Australian position is adopted, then Singapore will be among the few jurisdictions where the tort will exist independent of legislation. Even Australia has its Privacy Act, 1988 although the Grosse v Purvis decision does not rely on it.

We can only wait and see.