Private Law Theory

ABSTRACT
This article examines the UK Supreme Court’s decision in Tate Gallery from the perspective of privacy protection. It asks the question: why did the Supreme Court deal with the case as one of private nuisance when the Court of Appeal determined the real issue to be invasion of privacy? In tracing the case from the High Court to the UK Supreme Court, this article will explain why the case was pleaded as one of private nuisance, rather than privacy, and the consequences of the UK Supreme Court’s decision to resolve the case on the basis of private nuisance. In particular, it will address where Fearn leaves the argument that the UK courts should create a new tort of intrusion upon seclusion, given that other common law jurisdictions such as the United States, Canada and New Zealand already offer specific tortious protection.

Paula Giliker, Protecting Privacy through the Tort of Private Nuisance: Fearn v Tate Gallery in the UK Supreme Court, 5 Journal of Commonwealth Law 1 (2024).