Those who live in glass houses may not have enjoyed a recent verdict. But legal protection for privacy has not been weakened – quite the reverse.
You will probably have read in the newspapers about the flat owners in the all-glass Neo Bankside building next to the Tate Modern suing over the invasion of their privacy, with visitors to the gallery’s 360-degree roof top viewing platform being able to gaze into their flats. You may also have noticed that they lost their case.
From that one might deduce that the law does not protect privacy, and that developers and designers can build with impunity regardless of such considerations. But closer examination of the decision shows the very opposite may now be true.
There are probably more than half a million visitors to the Tate’s viewing platform each year, and a significant number of those, it seems, take a keen interest in the interiors of the flats in Bankside and the lives of their occupants. As the trial judge said, “Some look, some peer, some photograph, some wave.” Although he held that occasions of obscene gestures were probably very rare, he concluded that any homeowner would reasonably regard the degree of scrutiny as intrusive.
The claimants therefore sought an injunction requiring Tate Modern to close the part of the gallery which affords views into their flats, though screening was proposed as an alternative. They brought their claims on two bases:
- under section 6 of the Human Rights Act 1998
- in common law nuisance, to prevent intrusion into their privacy.
Section 6(1) of the HRA 1996 provides that: “It shall be unlawful for a public authority to act in a way which is incompatible with a Convention right.” Section 6(3) extends the definition of public authority to “any person certain of whose functions are functions of a public nature”. The Convention right relied upon was the so-called Article 8 right to privacy, that “[e]veryone has the right to respect for his private and family life, his home and his correspondence.” The claim failed, but notably only on the facts. The Court rejected the argument that the Tate was any kind of ‘hybrid’ public authority because none of its functions were ‘governmental’ in nature.
As for the case of nuisance, the Tate argued that as a matter of law there could be no nuisance by invasion of privacy. They relied upon the absence of any authority directly supporting such claim. They also pointed to that line of cases from Turner v Spooner (1861) which decided an owner has a right to open new windows in his building even if they overlook his neighbour’s premises. However, the judge held that the cases do not go so far as to say that nuisance can never protect privacy. He drew a distinction between ordinary windows and the present problem relating to a structure whose whole purpose was to overlook by providing a view.
Thus, significantly, the Court decided that “if it did not do so before the Human Rights Act, since that Act the law of nuisance ought to be, and is, capable of protecting privacy rights from overlooking in an appropriate case … if it did not do so there would be a gap in the protection of privacy in the home where, for example, a landowner used his or her land to spy on a neighbour in an unreasonable way.”
Again, therefore, the claimants’ claim in nuisance did not fail in principle. In so far as it failed this was firstly because, given the particular locality, the court held there was nothing unreasonable in the use made of their land by the Tate, particularly since they had by trial restricted the opening hours of the offending part of the gallery (the court actually requiring them to submit to an order maintaining those restrictions). Secondly, because the judge decided that had the flats been of ‘normal’ construction there would have been no nuisance – so that ultimately the claimants “had created their own sensitivity and will have to tolerate what the design has created.”
Plainly, deciding whether there is a nuisance is a balancing exercise, factoring in the reasonableness of the use in question and weighing the competing interests of landowners. No doubt the claimants and many others will think the wrong balance was struck in this case. The key takeaway remains, though, that the case decides convincingly that privacy can be protected by an action founded on Convention rights and in nuisance.
Developers and designers take note.
