This electronic thesis or dissertation has been downloaded from the King’s Research Portal at https://kclpure.kcl.ac.uk/portal/ The corporation and privacy protection Ought English law to be further developed to provide fuller protection for the privacy of the corporation? Nwozo, Jacqueline Nonye Awarding institution: King's College London The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without proper acknowledgement. END USER LICENCE AGREEMENT This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International licence. https://creativecommons.org/licenses/by-nc-nd/4.0/ You are free to: Share: to copy, distribute and transmit the work Under the following conditions: Attribution: You must attribute the work in the manner specified by the author (but not in any way that suggests that they endorse you or your use of the work). 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Jacqueline Nonye Nwozo Dickson Poon School of Law KING’S COLLEGE LONDON This dissertation is submitted for the degree of Doctor of Philosophy in Law at the King’s College London September 2014 1 THE CORPORATION AND PRIVACY PROTECTION: OUGHT ENGLISH LAW TO BE FURTHER DEVELOPED TO PROVIDE FULLER PROTECTION FOR THE PRIVACY OF THE CORPORATION? 2 ABSTRACT This thesis investigates whether English law ought to be further developed to provide fuller protection for the privacy of the corporation. As an essential preliminary step, the thesis first explores the concept of privacy in general – privacy interests, definitions of privacy, rationales of privacy; and then proceeds to formulate a concept of privacy for the corporation. The thesis advances to consider the level of protection of the privacy of the corporation in English law, and finds that only a limited level of protection is provided – in broadcasting matters – by the Broadcasting Act 1996. The thesis then proceeds to critically examine whether the extended action for breach of confidence which protects an individual's privacy can and ought to be further developed to provide protection for the corporation’s privacy, and argues that the corporation’s privacy can and ought to be so developed. The thesis also investigates whether, in the alternative, the corporation’s privacy would be more suitably protected if it were developed as a property right under Article 1 of Protocol 1 ECHR, and finds that Article 1 of Protocol 1 would not suitably protect the corporation’s privacy. Instead, the thesis upholds the extended action for breach of confidence as a more natural and suitable home for the protection of the privacy of the corporation in English law. The thesis concludes with recommendations on the structural framework for the proposed protection of the corporation’s privacy under the extended action for breach of confidence. This research is undertaken primarily through doctrinal analysis; it analyses English Courts’ jurisprudence, the European Court of Human Rights jurisprudence, as well as the jurisprudence of the Court of Justice of the European Union where it concerns the administration of Article 8 ECHR. Theoretical arguments are also engaged in when it comes to defining and justifying the protection of the corporation’s privacy. 3 DEDICATION To my loving father, Dr James. C. Nwozo. Thank you for all your kindly support throughout my journey. 4 ACKNOWLEDGEMENTS I wish to express my most profound gratitude to my supervisors, Professor Tanya Aplin and Dr Jan Oster; thank you so much for your immeasurable time, dedicated support and commitment throughout my research. I would also like to further appreciate my first supervisor, Professor Tanya Aplin, for her tireless dedication to my development: guiding me through a book review with the King’s Law Journal, a rapporteur role with the Australian Law Commission, a thesis presentation, and in the near future, the publication of a chapter contribution in a law textbook. What can I say; on this developmental role, and much more, Professor Tanya, I remain most humbled and grateful for your generosity. Also to Dr Jan Oster, thank you so much for your continued interest and comments on the final draft of my research, in spite of having left King’s as at the time of this draft. To the King’s College London PhD Law team, particularly, Dr Cian Murphy and Professor Penny Green, my thanks are also due for your support during my time at King’s College London: from my interview process into King’s, to the warm reception I received on gaining admission, to my orientation process at the beginning of my study, to my research seminar year, my viva; and thereafter, as and when the opportunity arose. To Professor Genevra Richardson CBE, I am most grateful for your very kind support during my upgrade viva process. To Dr Mumford, thank you for your support as well as your comments during my thesis presentation. My thanks also go to the King’s School of Law administrative team, particularly, to Annette Lee and Lindsey McBrayne, for your hands-on assistance with all my enquiries. I also wish to acknowledge, with the most profound humility and fondness, the privilege of having been trained in the world class ivory tower: the King’s College London. It is a milestone I shall never forget; I remain most appreciative. 5 TABLE OF CONTENTS Preface …………………………………………………………………………..10 CHAPTER 1 ……………………………………………………………………16 CONCEPT OF PRIVACY FOR THE CORPORATION Introduction ……………………………………………………………………..16 PART 1 ………………………………………………………………………….18 1.1 The general concept of privacy: definition of privacy ……………………..18 i. Intrusion privacy interest ……………………………………………24 ii. Information privacy interest ………………………………………...26 iii. Researcher’s definition of privacy ……………………………….….27 PART 2……………………………………………………………………….…..30 1.2 Rationales of privacy as a valuable interest …………………………….…..30 A. Privacy and the principle of autonomy …………………….……30 B. Privacy and dignity ……………………………………….……...33 PART 3 ………………………………………………………………….………..37 1.3 A working definition of privacy for the corporation …………….…………..37 i. Definition of the corporation ………………………………….……...38 ii. Privacy interests ……………………………………………….……...43 A. Intrusion privacy interest ………………………………….………43 B. Information privacy interest ……………………………….……...46 iii. Definition of privacy ………………………………………….……...50 iv. Rationales of privacy ………………………………………….….…..53 A. Dignity rationale ………………………………………….…….…53 B. Autonomy rationale ……………………………………….…..…...53 Conclusion …………………………………………………………………..….....60 CHAPTER 2 ………………………………………………………………..…….62 THE LEVEL OF PROTECTION OF THE PRIVACY OF THE CORPORATION IN ENGLISH LAW 6 Introduction ………………………………………………………………………..62 PART 1 …………………………………………………………………………….64 COMMON LAW …………………………………………………………………..64 2.1 The traditional action for breach of confidence ………………………….…...64 A. The nature of protection the traditional action for breach of confidence provides the corporation………………………………………………........70 i. Protection against the misuse of commercial confidential information.71 ii. Protection for the privacy of the corporation? ………………………....75 2.2 Other common law actions ……………………………………………………..91 i. Malicious falsehood …………………………………………………….91 ii. Defamation ……………………………………………………………..94 PART 2 ……………………………………………………………………………..97 STATUTE ………………………………………………………………………….97 2.3 Data Protection Act 1996 ………………………………………………………97 2.4 Protection from Harassment Act 1997 ………………………………………...99 2.5 The Broadcasting Act 1996…………………………………………………...102 i. Case law application of sections 110(1)(b) and 111(1) of the Broadcasting Act 1996 ………………………………………………………………105 Conclusion ………………………………………………………………………..111 CHAPTER 3 ……………………………………………………………………..113 PROTECTING THE PRIVACY OF THE CORPORATION – THE DEVELOPMENT OF THE EXTENDED ACTION FOR BREACH OF CONFIDENCE Introduction ……………………………………………………………………….113 PART 1 ……………………………………………………………………………116 3.1 The extended action for breach of confidence ………………………………..116 i. The incorporation of the ECHR into the domestic law of the United Kingdom and its effect …………………………………….………….116 7 A. The horizontal application of the HRA …………………………..127 B. The tort of the misuse of private information ……………………135 The development of an intrusion tort ………………………………...150 PART 2 3.2 The scope of Article 8 of the European Convention on Human Rights and the development of English law …………………………………………………..160 i. Strasbourg court’s interpretation of the notion and scope of Article 8 ECHR: the development of Strasbourg court’s jurisprudence from the protection of individuals and to the protection of the corporations and its application to English law …………………………………………….161 I. The notion and scope of ‘private life’ …………………………….161 II. The notion and scope of ‘family life’ …………………………….171 III. The notion and scope of ‘home’ …………………………………..175 IV. The notion and scope of ‘correspondence’ ………………………..185 Conclusion ………………………………………………………………………...194