Jelena Gligorijević, ‘Privacy at the intersection of public law and private law’

The exact nature and desirability of any intersection between private law and public law can generate much debate. In view of the developments in English human rights jurisprudence, the distinction between private law and public law in England is sometimes seen as less definite than in other common law jurisdictions. That does not, however, mean that English public law and private law have completely fused into one another, even in the context of human rights. Therefore, issues about the intersection between private law and public law should not necessarily prevent other jurisdictions from looking to England when developing their own common law.

Debates about this intersection are particularly acute in the law of privacy. England has seen a convergence between public law concepts and reasoning, and private law remedial mechanisms, in the cause of action of misuse of private information. Some scholars consider such a merging of the two spheres of law to be unpalatable, because it risks confusing legal concepts and principles in a way that can muddle judicial reasoning and render it opaque, ultimately undermining the law’s rights-protective capacity.

In fact, such convergence is a benefit of the evolutionary system of common law that addresses normative needs as they arise. In order to demonstrate that common law systems can adequately and legitimately protect informational privacy through a private law action influenced by public law, this paper makes the following three propositions: tort law can accommodate privacy protection, and the English action is appropriately labelled a ‘tort’; the English tort does not depend upon the Human Rights Act 1998 (HRA), allowing other common law jurisdictions to choose to adopt aspects of that tort; and the public law tool of proportionality can determine privacy tort outcomes in a way that ensures credible legal protection of the fundamental right to privacy in the private sphere, without unjustifiably encroaching upon other rights.

Privacy law developments illustrate the indispensability of public law to the evolution, sustained coherence, and good functioning of the common law. Without public law permeating private law, common law might be less capable of effectively and legitimately regulating relations between private individuals. Public law, therefore, can help to maintain a robust and credible system of private law.

€ (Westlaw)

Jelena Gligorijević, ‘Privacy at the intersection of public law and private law’ [2019] Public Law (July) 563.

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