Edited by András Koltay and Paul Wragg
Chapter 3: Privacy and incrementalism
This chapter concerns the intrusion lacuna in English and Welsh privacy law. The British judiciary appears unable to resolve the gap in the common law in respect of intrusion-type privacy violations. Despite much academic ink being spent arguing for the recognition of an intrusion tort, not enough has been done to uncover the reasons why it persists. This chapter diagnoses one significant reason. This is important since only by understanding the reasons for the intrusion lacuna’s persistence can arguments in favour of resolving it be made persuasively. The reason identified is methodological. The British courts adopt a narrow mode of ‘incrementalism’ when elaborating common law privacy doctrine. This mode precludes the recognition of novel heads of liability, instead shoehorning all development into existing tortious categories (most obviously the ‘tort’ of ‘misuse of private information’). The narrow incremental mode derives from a formalist conception of the rule of law, which prioritizes legal certainty and fetishizes precedent. But this conception itself is ultimately self-defeating; it cannot ensure the certainty it pursues. This fatally undermines the case for rigid adherence to the methodology derived from it. Unlike in England and Wales, an intrusion tort has been recognised in Ontario, Canada. When we contrast the approach of the British courts with that of their Canadian counterparts, it becomes clear that the Canadian courts have preferred a different, wider mode of incrementalism. This wider mode focuses on coherence with underlying legal principles and fidelity to broad ideals of justice, rather than on the need for near absolute precedential consistency. By looking to Canada, we are able to plot the methodological path which English and Welsh law would need to take in order to recognise an intrusion tort: the adoption of a wider mode of incrementalism that, while already at work in other areas of British tort law, is currently shunned in privacy.
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