PRIVACY & THE LAW OF TORT
(a quick glance)
                                                                                                                    by  Eugenio Stucchi
Contents:
The gap
The tools
The remedies
Bibliography
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1. THE GAP
A gap appears to be in the law. According to the Committee on Privacy and Related Matters "We have as yet no general remedy for infringement of the privacy [in England]" , and a glance to the case law is sufficient to say that formally "there is no tort of harassment" or stalking.
If we decide to close the gap we need the appropriate tool, that is the right category under which legitimate our decision. The possible solutions are only two:
1) to reform the law, making a new tool (a new tool for a new purpose), creating by statute a new tort of harassment or stalking;
2) not to reform the law and use the existing categories, stretching them to cover the gap (old already used tools, now useful for other purposes, and of course a hammer cannot be used as a screw driver, but it can successfully be used as a paper-weight, and a screw driver can sometimes be used as a hammer).
It is significant anyway to note that every development of this area of law is going to affect the existing law of privacy, which is a matter of pure policy, and an area that "the Government is reluctant to extend" .


2. THE TOOLS
The option of a new tool, has been widely considered by the Committee on Privacy and Related Matters , both in 1972 and in 1992. In English law the concept of a tort actionable per se, without a quantifiable damage having been proved, is accepted already; the point is, and officially on this ground the idea was rejected, that creating a new tort of stalking actionable without proof of quantifiable harm, has the drawbacks of a very difficult exclusion of trivial interference, and consequently a very problematic assessment of damages; in addition the creation of a new tort of harassment, is viable without conflicting with other existing legal principles. The second option, not to reform the law and to use existing tools, has been followed in the meantime by the courts. The possible tools usable come both from the criminal and the civil law. The criminal law appears to be impotent mainly because of a very heavy burden of proof. In civil law, the ground under which liability can more easily be reconstroued, is that of intentional torts. The problem is that these torts are still waiting for their Donoghue v.Stevenson to be rationalised with, and so the approach with them is that of case by case . The trespass to the person offers a very powerful but not always used tool. A good step towards a general tort of harassment has been anyway made with the case Wilkinson v. Downtown (1897). In this case the plaintiff suffered a shock as a result of a joke in which she was told that her husband had been smashed up in an accident. The problem was that nervous shock, was considered an indirect damage, and so not recoverable in assault, but only in an action on the case, under which on the other hand could not be pleaded intentional harm, actionable only in trespass. The reason for these problems was that the Supreme Court Judicature Act is dated 1873, and so the lawyers of the period of Wilkinson v. Downtown, were still partly in thrall of the old forms of actions. But all these superstitions were put aside, and the only requirement was held to be an act "calculated to cause harm". Quite a powerful tool seemed to be created, as a general gap-filling tort, also used in the following Janvier v.Sweeney (1919), where was found the intention "to terrify the plaintiff" (the defendant, private detectives, tried to obtain some letters from the plaintiff, using the blackmail of denouncing her boyfriend, a German citizen, as a spy), and Burnett v.George. In more recent times, in the case Kendrick v. Kendrick (1990), injunctive relief has been made available to stop a potentially serious degree of psychological harm coming about to injure someone. In this case Gildewell LJ held that if there is a clear evidence that the person assaulted has suffered a real psychological damage (although no physical injury is apparent), such assault can amount to actual bodily harm. But in a subsequent case, Khorasandjan v. Bush (1993), the court preferred the more interesting exercise of using a screw-driver as a hammer, and liability for continuous telephone-stalking, was construed out of nuisance, with the result that actionability got tangled up with the interests people have in land. In this case infact the decision came only after the quite artificial construction of a "special status" (already used for the decision in Motherwell v. Motherwell) enjoyed not only by the owner of the land, but also by the people living with him; L.J. Dillon had to say "... if the owner [of the land] is entitled to sue...then I don’t see why that should not apply to a child living with her parents.". The decision in Khorasandjan v. Bush was also relied on in the case Burris v. Adzani(1995), where a man was imprisoned for walking down a road he was forbidden to use, because he might yeld to the temptation to harass the defendant.

The difference between Wilkinson and followings one side, and these other cases constructed out of nuisance on the other, is that in the formers was required I) actual harm or impairment and II) molestation calculated to induce such impairment, whether in the latters the harm was only potential. But was that enough to justify such an artificial exercise of protecting someone with nuisance for harms that have no actual and reasonable link with land? Harrasment is a behaviour that offends the person of the plaintiff, and the lack of a proofable harm could have been bypassed using fully the possibility of the tort of assault, under wich could have been certainly more easily led behaviours such as those in Khorasandjan or Burris.


3. THE REMEDIES
We can still not say that a new tort of stalking exists, since no formal tort with this name has been created: what we can say is that according to a change in the feelings of the public and of the courts, facts of life previously out of the ground of tort law, are now delt with this branch of law, that seems not to need any reform to cope with these new issues. A double ground of remedies is available: firstly injunctions can be granted , and secondarily even imprisonment for contempt of court where injunctions are not respected (Burris v. Adzani). There’s no lack of remedies or tools to cover the gap: the intentional torts are the more natural ones, and the trespass to the person has the more useful characteristics, no links with interests in land, actionability per se, no proof of damages, predisposition to cover also phycologocal harm, and the mere fear of harm (with its double structure ‘assault-battery’). And assault is the real point to start from, and the most useful tool: it has enormous possibility of extension, still to be developed.
In a very recent case for the first time damages were awarded to the plaintiff for the psychological distress suffered (Fine v. McLardy, 13-Nov.-1996) . If this tendency will be confirmed in subsequent cases a new landscape is likely to appear in front of our eyes.

BIBLIOGRAPHY

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