I. Introduction

This article will examine the 2023 UK Supreme Court private nuisance case of Fearn v Board of Trustees of the Tate Gallery[1] (Fearn) from the perspective of privacy protection. The defendants in this case were the Board of Trustees of the Tate Gallery, a large art gallery in South-East London. In 2016, the Tate Gallery opened an extension called the Blavatnik Building which, on its top floor, has a viewing platform which offered 360-degree panoramic views of London. The claimants were owners of flats in a neighbouring building some 34m away. Their flats have a distinctive design feature in that their walls are mainly made of glass. Visitors to the southside of the viewing platform were thus able to see directly into the flats and did so in their thousands. When the claim was brought, about 5½ million people were visiting the gallery each year and, of them, several hundred thousand (between 500,000 and 600,000 on one estimate) had visited the viewing gallery. Some took photographs or (less frequently) viewed the flats with binoculars, posting pictures on social media. On the platform Instagram, there were 124 posts in the period between June 2016 and April 2018, with a potential audience of 38,600. The Tate Gallery did post notices on the south side asking visitors to respect the privacy of the gallery’s neighbours and instructed security guards to stop people taking photographs of the flats and their occupants, but this made little difference. The claimants sought an injunction requiring the defendants to prevent members of the public observing their apartments from designated sections of the platform, including the whole of the southern walkway.

This, to all appearances, is a classic case of invasion of privacy. The complaint, as the UK Supreme Court recognised, is one of constant observation and photography of one’s home.[2] And yet Fearn is a leading case on the tort of private nuisance. It was described as “a straightforward case of nuisance” by Lord Leggatt in the case itself.[3]

This article will discuss why the invasion of privacy in Fearn – which other jurisdictions would term an “intrusion upon seclusion”[4] – has been treated as a case of private nuisance in UK law. As we will see, it is the result of a mixture of pragmatism, a distinctive UK approach to tort law development and a reluctance to permit broad notions of human rights to shape private law. I will argue that Fearn does amend the UK law relating to privacy but that the method employed provides a limited amount of assistance to a specific category of claimants and does not remove the need to review why UK law still does not have dedicated tort protecting against intrusion upon seclusion. Given its recognition of a specific tort of misuse of private information which protects informational privacy, why has the UK Supreme Court been so hesitant to take this further step?

A. The Privacy Issue

Solove has described as privacy as:

… a sweeping concept, encompassing (among other things) freedom of thought, control over one’s body, solitude in one’s home, control over information about oneself, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations.[5]

Monti and Wacks[6] identify as the most fundamental invasions of privacy what US law would call ‘public disclosure of private facts’[7] and ‘intrusion upon an individual’s seclusion, solitude or private affairs’.[8] These terms derive from the four-fold discussion of privacy put forward in 1960 by William Prosser,[9] now found in Restatement (Second), of Torts §§ 652A–652I (1977) (‘the Restatement’). The former is protected in UK law by the tort of misuse of private information (‘MoPI’). MoPI is, however, a recent tort and indeed was only officially recognised as a tort in 2015.[10] Its origins lie in the 2004 case of Campbell v MGN Ltd.[11] In this case, the UK House of Lords accepted that Ms Campbell (a well-known supermodel) would have a reasonable expectation of privacy in relation to details of her treatment for drug addiction which had been published without her consent in a newspaper.[12] While this expectation of privacy could be outweighed by the countervailing interest of the publisher’s right to freedom of expression, the majority held that this was not the case here.[13] It is important to note that Campbell was decided four years after the introduction of the Human Rights Act 1998 (“HRA”).[14] The HRA provides, at section 6, that public authorities (including the courts) should when acting take account of human rights under the European Convention of Human Rights. Although the defendant in Campbell was not a public authority, the court nevertheless sought to develop the existing action for breach of confidence in a way that balanced the right to a private life (Art 8) with that of freedom of expression (Art 10).[15] As Oliphant and Nolan comment, ‘In Campbell v MGN Ltd, the House of Lords … established a different framework for dealing with the private information cases, which was to proceed by direct reference to the rights under Articles 8 and 10, ECHR.’[16]

Lord Nicholls, however, in Campbell recognised that protection was confined to informational privacy, which is only one aspect of an individual’s privacy.[17] It did not extend beyond this. The UK courts have expressly denied the existence of any over-arching, all-embracing cause of action for ‘invasion of privacy’.[18]

To date, therefore, there is no tort of ‘intrusion upon an individual’s seclusion, solitude or private affairs’ in UK law.[19] In this, it differs from the US, and Canada and New Zealand where the US Restatement has been influential. [20] Section 652B of the Restatement provides that intrusion upon seclusion possesses four elements: (1) the defendant without authorisation has intentionally invaded the plaintiff’s private affairs; (2) the invasion must be offensive to a reasonable person; (3) it involves a private matter; and (4) the intrusion must have caused mental anguish or suffering to the plaintiff. There is a noticeable focus on the mental anguish or suffering caused to the person whose privacy has been invaded and this can include anger at being disturbed.

Academics have highlighted that there are common factors that link these two types of invasion, notably protecting autonomy and human dignity.[21] Sharpe JA in Jones v Tsige regarded extension of tort law to protect such invasions as ‘an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.’[22] Fearn was not a MoPI case – the Tate Gallery had not misused any private information.[23] Instead, Fearn presented the Supreme Court with the opportunity to consider whether privacy protection could be extended beyond the specific instance of informational privacy.

As we will see, the judgments in Fearn at first instance, Court of Appeal and Supreme Court levels adopt very different approaches to the case. At first instance, a specialist privacy judge[24] expressly sought to extend the law to protect privacy rights. In contrast, the Court of Appeal adopted a more conventional approach that stipulated that traditional tort law principles would deny a remedy. For the Supreme Court, however, the categories of nuisance are not closed.[25] It found that private nuisance may, in certain circumstances, extend to visual intrusions into land. The journey from High Court to Supreme Court in Fearn is revealing, informing us of the UK courts’ approach to privacy development and the extent to which intrusion upon seclusion will be protected in UK private law.

B. Fearn at First Instance: Reform private nuisance to protect Article 8 rights

The claim at first instance[26] was two-fold: either the Tate Gallery (as a public authority) had, contrary to section 6 HRA, acted in violation of Article 8 ECHR,[27] or that the Tate Gallery had violated the privacy which was protected as an aspect of the amenity of land in private nuisance. The claim under the HRA was rejected on the basis that the Tate Gallery was not a public body. This seems to be correct on the basis of established authority and was not appealed.[28] Despite rejecting the direct HRA claim, Mann J favoured the second argument. In his view, respect for privacy rights in one’s private and family life and home under Article 8 ECHR[29] could be achieved indirectly by relying on the tort of private nuisance.

The mechanism Mann J used has been called ‘indirect horizontal effect’.[30] The argument is that the court, as a public authority, post-HRA should interpret private law (even between private parties) in a manner that is Convention-compliant.[31] Such reasoning was used in Campbell to expand the equitable action of breach of confidence into the tort of misuse of private information.[32] On this basis, it can be argued that private nuisance should be extended to cover privacy infringements in the home due to the court’s obligation under section 6 HRA to interpret the common law in a manner consistent with ECHR rights:

It therefore seems to me that … since [the HRA] 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[.] … That does not mean, of course, that all overlooking becomes a nuisance. Whether anything is an invasion of privacy depends on whether, and to what extent, there is a legitimate expectation of privacy.[33]

As Morgan recognised at the time, this approach was ‘novel and significant’.[34] Previously the courts had been careful to exclude from private nuisance claims that the claimant had a right to a view[35] or not to have her television reception blocked by a large building.[36] However, the argument was made that a more flexible position was needed following the introduction of the HRA. Such reasoning had previously been utilised in 2002 in McKenna v British Aluminium Ltd[37] where the judge found that the claimants (some of whom did not have an interest in land) had an arguable case that the right to sue in private nuisance should be extended in the light of the HRA.

On the facts, however, Mann J held that the claimants did not have a legitimate expectation of privacy. To reach that conclusion he examined whether the landowner’s use of land had been, in all the circumstances and having regard to the locality, unreasonable to the extent of being a nuisance (applying the ‘give and take’ test used in private nuisance). Mann J found the operation of the viewing gallery was not obviously unreasonable in the neighbourhood:

The developers in building the flats … have created or submitted themselves to a sensitivity to privacy which is greater than would the case of a less-glassed design. It would be wrong to allow this self-induced incentive to gaze, and to infringe privacy, and self-induced exposure to the outside world, to create a liability in nuisance[.] … These properties are impressive, and no doubt there are great advantages to be enjoyed in such extensive glassed views, but that in effect comes at a price in terms of privacy. [38]

Mann J also took the somewhat controversial view that the owner-occupants of the flats could have taken reasonable protective measures on the principle of ‘give and take’ in private nuisance, such as lowering their solar blinds during the day or installing net curtains or a privacy film. [39] While it is unusual, as Mann J acknowledged, for a court to expect claimants to take steps to minimise the defendant’s interference, in his view, ‘this is an unusual case’ and privacy raises different issues.[40] In other words, privacy (protected by private nuisance) required an overall balancing of the proper use of the defendant’s land and the legitimate interests of the claimants in a modern urban, tourist-attracting environment.

Mann J was willing, therefore, to create what might be regarded as a sui generis private nuisance claim, even if it was unsuccessful on the facts. However, the position of the UK Supreme Court has changed considerably since the decisions of McKenna in 2002 and Campbell in 2004. As Wright noted in 2014, there has been a backlash to the indirect horizontal effect argument and a denial that there is any obligation for tort law to evolve in accordance with Convention rights.[41] Since a high point in 2003,[42] decisions such as Smith v Chief Constable of Sussex Police[43] in 2008 and Michael v Chief Constable of South Wales[44] in 2015 have firmly rejected the argument that it is necessary to interpret core common law principle in line with Convention rights. The Supreme Court in Michael was dismissive of any suggestion that the courts should ‘gold plate’ Convention rights by providing compensation in tort.[45] The separatist argument now prevails, that is, that claims in tort and under the HRA follow different paths, having different aims and objectives and different remedial frameworks.[46] To merge the two paths would lead, it is argued, to a distortion of core tort law principle.[47] The development of a partial law of privacy through the tort of misuse of private information is now regarded as an exception, which can only be justified on the basis that it dealt with a problem that the common law had long regarded as in need of resolution. The confidence of Mann J, therefore, that in 2019 the common law could be extended to comply with Article 8 conflicted with a clear change of direction by the UK Supreme Court. Commentators understandably expressed concern that this judgment created undesirable uncertainty in the tort of private nuisance.[48]

C. Fearn in the Court of Appeal: Privacy reform is for Parliament

The Court of Appeal,[49] in contrast, took a more traditional approach to the law: mere overlooking does not give rise to a private nuisance. Unlike other amenity loss such as interference from noise, dirt, fumes, noxious smells and vibrations emanating from neighbouring land, the Court believed that it would be difficult to apply the objective test in nuisance to determine whether there has been a material interference with the amenity value of the affected land in the case of overlooking. The Court placed considerable weight on the fact that there are other methods better able to deal with this issue, notably, in its view, planning laws and control. In reaching this decision, the Court was clearly influenced by the majority judgments in Hunter v Canary Wharf Ltd.[50] In that case, Lord Hoffmann had noted that where a development is likely to have an impact upon many people over a large area, ‘the planning system is, I think, a far more appropriate form of control, from the point of view of both the developer and the public, than enlarging the right to bring actions for nuisance at common law.’ [51]

Such reasoning, however, places insufficient weight on the well-known limitations of the planning regime. In Hunter itself, which concerned interference with television reception caused by the construction of the 250m Canary Wharf Tower, Lord Goff conceded that the interference might not have been appreciated until after the building had been built and too late to raise at the planning stage.[52] In any event, the construction of the tower had taken place in a government designated Enterprise Zone with the effect that planning permission was deemed to have been granted for any form of development, removing the need to make any application in the first place. Howarth argues that the planning process must also have failed in Fearn in that it had not picked up the ‘overlooking’ problem and therefore the routine solution of dealing with it by requiring a re-design never happened.[53] Further it is trite law that an interference can be a nuisance even where planning permission had been granted.[54]

Despite such criticism, the Court of Appeal maintained its view that ‘as a matter of policy, planning laws and regulations would be a better medium for controlling inappropriate overlooking than the uncertainty and lack of sophistication of an extension of the common law cause of action for nuisance.’[55] Alternatively, it argued, if the real issue was one of privacy, then claimants should utilise the existing means provided by English law (breach of confidence, the tort of misuse of information, data protection legislation, and harassment legislation) to protect their privacy. Any greater protection should be left to the legislature which is better able to weigh up the competing interests involved. [56]

Such reasoning is consistent with Wainwright v Home Office[57] in which the House of Lords rejected the existence of any general tort of privacy. Lord Hoffmann argued that this was an area of law that required a detailed approach which would only be achieved by legislation rather than, what he called, ‘the broad brush of common law principle’.[58] The argument of the first instance court that the tort of private nuisance should be re-interpreted in the light of Art 8 ECHR was resoundingly rejected by the Court of Appeal. To do so, it argued, would significantly distort private nuisance which, as a property tort,[59] has a different test of standing to Art 8’s broad notion of rights in the home and would require consideration of matters it regarded as irrelevant to the traditional cause of action.[60]

The ‘separatist’ argument was therefore followed. As stated above, this follows logically from UKSC decisions such as Michael and Smith. The expansionist rhetoric of tort cases immediately post-HRA where the courts were willing to interpret core negligence and nuisance principles in the light of the ECHR,[61] has been rejected.[62] While one can still sue a public authority directly under HRA, Convention rights will not generally influence the interpretation of core tort law principle.

D. Fearn in the UK Supreme Court: Private nuisance and privacy are not mutually exclusive

It is unsurprising therefore that the Supreme Court approached the claim in Fearn from the perspective of core common law principle. There was consensus that there was no need for legislation,[63] and that a discussion of the HRA or Article 8 would merely be ‘an unnecessary complication and distraction.’[64] In the view of both the majority and minority, the visual intrusion complained of fell naturally within the scope of the tort of private nuisance itself. While this may be seen to amount to an extension of existing law, ‘there is no conceptual or a priori limit to what can constitute a nuisance.’[65]

Lord Leggatt, giving the majority judgment, and drawing on US and Commonwealth law,[66] described visual intrusion as ‘the interference caused by people constantly looking in’ such that it amounts to an intolerable interference with the householder’s freedom to use and enjoy their property.[67] While the minority differed in the application of the test, the Court agreed that the tort of private nuisance will include a right to be protected against intense visual intrusion.[68] Lord Leggatt was convinced that the situation of the appellants, who were living as ‘much like being on display in a zoo’[69] would satisfy this test. Indeed, he saw such intrusions as, given the popularity of social media, a foreseeable consequence of building such a viewing platform:

[I]n an age when most people carry a smartphone with a high powered camera it is a natural and foreseeable consequence of allowing thousands of visitors a week to look out from a viewing gallery from which they get a clear view of the claimants’ living accommodation that a significant number will take photographs of the interiors of the flats, just as the judge found that they in fact do. [70]

This did not mean, the Supreme Court confirmed, that all overlooking would amount to an actionable nuisance. Occupants must put up with neighbouring properties where their neighbours might, by virtue of proximity, see into their flats. An ordinary use of land, done with proper consideration for the interests of neighbouring occupiers, would not amount to nuisance. It is the constant observation, by visitors invited by the Tate to the platform most of the day every day of the week, that tipped the balance of convenience for the majority. [71] A unanimous UK Supreme Court found that visual intrusion is now, despite Australian dicta apparently to the contrary,[72] an actionable form of private nuisance.

In so doing, the argument of the Court of Appeal that planning law could better regulate such problems was rightly rejected:

[P]lanning laws and the common law of nuisance have different functions. Unlike the common law of nuisance, the planning system does not have as its object preventing or compensating violations of private rights in the use of land. Its purpose is to control the development of land in the public interest.[73]

Relying on core principles of private nuisance also resolved, as noted by Lord Sales, two potential difficulties that the claimants would have faced with a pure privacy claim. Lord Sales noted that the claimants had been very careful in how they put their case. A direct claim for intrusion upon seclusion, even if possible in English law, would most logically have been brought against the individuals intruding into their seclusion rather than against the gallery itself. This would have required bringing multiple claims against unidentified defendants. By contrast, a private nuisance claim criticising the use the Tate Gallery made of its land, provided not only an identifiable defendant but a defendant capable of rectifying the problem by closing down the south part of the viewing gallery. While it could have been argued that the Tate Gallery had facilitated the privacy intrusion by constructing a viewing gallery that would foreseeably lead to visual intrusion, facilitation of a tort is hard to prove in English law. [74] The court looks for procurement or authorisation of the tort, neither of which were realistically arguable on the facts. Private nuisance therefore provided the most straightforward means to achieve the claimants’ goal: to stop the visual intrusion. Further, Lord Sales was skeptical whether any claim based on Article 8 would have succeeded on the facts. As already seen, Mann J believed that the claims would fail under an ‘Art. 8 influenced’ tort of private nuisance. In the view of Lord Sales, the margin of appreciation given to States under Article 8 and the qualified nature of the right that must take into account competing rights such as Article 1 of Protocol 1 (right to protection of property) made it less than obvious a claim under Article 8 ECHR would succeed.[75]

In focusing, therefore, on the property rights held by the claimants in a private nuisance action, the Supreme Court provided a practical response to the visual intrusion that took place in the case. Following Fearn, private nuisance forms part of a select company of torts (and the equitable action for breach of confidence) which are capable of offering some protection of privacy rights, even if this is not the main focus of the tort.[76]

Such analysis explains why Fearn was not argued as a privacy case. Yet, it is important to look beyond the success of the claimants in Fearn and reflect on the consequences of relying on private nuisance to protect against the visual intrusion.

III. The Limitations of a Private Nuisance-based Response to Intrusion upon Seclusion

Fearn supports what we may term the piecemeal approach of English law to privacy. [77] While the development of the specific tort of misuse of private information under the influence of Article 8 ECHR and the HRA might have suggested a willingness by the courts to venture into the territory of their US, Canadian, and New Zealand counterparts in developing other privacy torts, such as intrusion upon seclusion, this was not the position of the UK Supreme Court in 2023. The mechanism used to create the tort of misuse of privacy information (transforming the existing action of breach of confidence into a new tort protecting informational privacy) is now considered the exception, not the rule. The preferred approach to legal development is one now firmly focused on core tort law principle.

This change in approach raises the question of the future influence of Article 8 ECHR on the development of UK private law. While case-law acknowledges that it lies at the heart of the tort of misuse of private information,[78] the separatist/non-distortion view of tort law suggests that, in future, its influence will primarily be in relation to claims under the HRA. On this basis, reference to the case-law of the European Court of Human Rights on Article 8 in torts such as negligence, private nuisance or trespass to land will be regarded as inappropriate in that it distorts the integrity of the common law of tort.

However, the method employed by Fearn to offer claimants a remedy for visual intrusion does have a number of consequences. As we will see below, it limits the scope of protection, raises questions of conceptual clarity and, it will be argued, unduly favours those with rights over land.

A. Limits to who can sue

It is trite law that only those with rights over land may bring an action for private nuisance.[79] Following Fearn, therefore, the daughter of a flat owner who lives with her parents and who is horrified that pictures of her exercising in their living room are trending on social media would have no claim. She would be forced to ask her parents who possess rights over the land to bring a claim instead. In the private nuisance case of McKenna v British Aluminium, Neuberger J found a ‘powerful case for saying that effect has not been properly given to Article 8.1 if a person with no interest in the home, but who has lived in the home for some time and had his enjoyment of the home interfered with, is at the mercy of the person who owns the home, as the only person who can bring proceedings.’[80] The judge’s view is supported by European Court of Human Rights case-law which indicates that an applicant can sue for breach of Article 8 if they can demonstrate the existence of sufficient and continuous links with a specific place.[81] This means that a person need not be the owner of her residence to possess Article 8 rights.[82] However, McKenna has not been followed. As this article has shown, the view that core tort law principle should take account of Convention rights following the HRA is no longer considered valid. On this basis, the authoritative position is that only those with rights over land can bring a visual intrusion claim in private nuisance.

B. Visual intrusion is an ‘injury to land’

The characterisation of private nuisance as a property tort[83] also affects the remedy available to claimants. Private nuisance seeks to compensate for injury to the land.[84] On this basis, as we saw above, only those with rights to land will be able to sue. In quantifying the claimant’s loss, the courts will look to any diminution in the value of the land due to the nuisance. Where there is no such loss in value but the claimant experiences amenity loss, Lord Hoffmann reasoned in Hunter v Canary Wharf that the claim is still one for injury to land: amenity loss diminishes the utility value of the land.[85] The courts freely admit that damages for intangible loss cannot be calculated with mathematical precision. Importantly, Hunter argues that the quantum of damages awarded should not depend on the number of those present on the land.[86] It is injury to the land, not the sensibilities of the occupiers which is being protected.

Yet cases such as Bone v Seale[87] (smells from a pig farm) and Dobson v Thames Water Utilities Ltd[88] (odours and mosquitoes from sewage works) do raise questions as to whether such reasoning is artificial.[89] The ordinary public is likely to find it odd that lawyers characterise horrible odours and plagues of mosquitoes as an injury to the land rather than an injury to the nostrils and skin of the people occupying the land. The artificiality of this argument becomes magnified in the context of visual intrusion. Lord Leggatt remarked in Fearn that it was not difficult to imagine how oppressive it would be to live with constant visual intrusion.[90] Such intrusion into your private life, manifested by people continuously looking, peering and waving at you, taking your photograph and posting images of you on social media, will obviously result in distress, annoyance and anxiety to the occupants. Such feelings are very personal. And yet the claimants’ success is premised on injury to the land. At the very least, this diminishes the law’s recognition of the personal impact of such intrusions on the individual autonomy and dignity of the victims.

C. Uncertainty as to the scope of ‘visual intrusion’

A further question arises as to the meaning of unlawful visual intrusion itself. Fearn was an extreme case. Living in what the majority characterised as a ‘human zoo’ under constant surveillance can be seen to satisfy a test of undue and substantial visual interference with one’s use and enjoyment of land. Yet what will amount to ‘substantial’ interference in other contexts? We know that using your premises in a common and ordinary way and acting with as much consideration for neighbouring occupiers as can reasonably be expected, will not render you liable in nuisance. The mere presence of a building or other structure erected on someone’s land which overlooks neighbouring land does not give rise to liability in nuisance.[91] Equally merely looking at what is happening on neighbouring land is part of living in a community and, says the Supreme Court, the kind of minor annoyance that neighbouring occupiers have to put up with under the rule of give and take, live and let live.[92]

As the following two scenarios will show, the degree of ‘visual intrusion’ needed to trigger private nuisance remains unclear. This leaves in doubt the scope of the protection given in Fearn against visual intrusion.

1. The Keen Photographer

This example is inspired by the trespass case of Lord Bernstein v Skyviews.[93] The case concerned the defendants flying over the plaintiff’s land for the purpose of taking an aerial photograph of his country house which they then offered to sell to him. Griffiths J commented, and Fearn is in agreement, that taking a single photograph would not amount to an actionable nuisance. However:

… if the circumstances were such that a plaintiff was subjected to … constant surveillance of his house from the air, accompanied by the photographing of his every activity, I am far from saying that the court would not regard such a monstrous invasion of his privacy as an actionable nuisance for which they would give relief.[94]

For Griffiths J, then, it would be a ‘monstrous’ invasion of privacy that would trigger relief. This would suggest a visual intrusion at the higher end of the scale would be needed to trigger a response in private nuisance. Visual intrusion due to a course of conduct amounting to harassment would now be covered in the UK by the statutory tort of harassment.[95]

2. The Curious Neighbour

This example tests the above hypothesis further. I have an elderly neighbour who lives in the house opposite. She is retired and likes to sit at her window observing what is happening in our street. During lockdown, I started working primarily from home and I notice that her attention seems focused on me when I am working in my living room. At times, she watches me for hours. This makes me uncomfortable and to focus on my work, I have had to close the blinds and work under artificial light.

Does this give rise to a claim for ‘visual intrusion’? How many hours and what intensity of staring are needed to trigger a legal response?[96] When does curiosity become a special and non-ordinary use of land which fails to offer as much consideration for neighbouring occupiers as can reasonably be expected? The point here is that the answers to my questions are not clear. Much will depend on the facts.

The short answer, therefore, is that we must wait to see how the courts apply Fearn in less serious scenarios. This leaves the law in an undesirable state of uncertainty and reliant on claimants willing to risk bringing a claim to establish the scope of its protection. Will future litigants be willing to incur this risk or will they confine their claims to the more extreme (or ‘monstrous’) end of the scale?

D. Privileging those with rights over land

One final, and perhaps unintentional, consequence of Fearn is that the protection of visual intrusion by private nuisance is more generous to the householder than that found under Article 8 ECHR itself. Article 8 is a qualified right. It is subject to ‘the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’[97] It requires, therefore, a balancing exercise, between the private rights of the claimant and matters of public interest. The public interest, in contrast, plays a limited role in private nuisance, primarily confined to the choice of remedies.[98] It is not seen as a factor to balance against the rights of the claimant. Mann J at first instance, acknowledged that, under an Article 8-influenced interpretation of private nuisance, the claimants, on the facts, would not have a reasonable expectation of privacy.[99] In his view, in operating the viewing gallery as it did, the Tate were not making an unreasonable use of its land, bearing in mind the nature of the use, the locality in which it took place, and that any use of land should be appropriate to modern society and the particular locale. In contrast, as Lord Sales acknowledged, the Supreme Court examined the case from the perspective of a clash of property rights between two sets of private persons.[100] In the view of the majority, a defendant who puts his land to a special use cannot justify the substantial interference which this causes with the ordinary use of neighbouring land by saying that he is asking no more consideration or forbearance from his neighbour than they (or an average person in their position) can expect from him.[101] In other words, the courts will focus on the perspective of the rights holder rather than a broader account of the interests at stake.

This places the claimants at a distinct advantage compared to anyone attempting a claim for breach of privacy rights. A ‘pure’ private nuisance response therefore diminishes the balancing element of the Article 8 test, and privileges claimants with property rights engaged with an ordinary use of their land who are able to establish a substantial visual intrusion into their property rights. Hariharan argues that this creates a difficult and politically questionable imbalance between the privacy protection offered to property holders compared with that of the general public.[102] While the minority would argue for a more nuanced approach based on ‘give and take’, the majority nevertheless see such reasoning as a legitimate interpretation of core principle.

IV. Conclusion

This article has identified three reasons why the Supreme Court chose to decide Fearn on the basis of core principles of private nuisance and why UK law has yet to develop a tort of intrusion upon seclusion, in contrast to other common law jurisdictions such as the US, Canada and New Zealand.

First, while the UK courts have recognised a tort of misuse of private information, influenced by Article 8 ECHR following the introduction of the Human Rights Act 1998, it has not accepted a new and independent tort of intrusion upon seclusion. The weight of UK authority indicates that recognition of a new tort of MoPI was an exceptional event and, viewed in its historical context, should be regarded as the result of early enthusiasm to expand tort law in a convention-compliant way in the wake of the HRA. It is clear that the ‘separatist’/‘non-distortion’ argument is now dominant.[103] Bagshaw in 2013 argued that it is ‘more important for newly developed duties to be harmonious with the goals of the law of torts than for them to replicate concepts used by the Strasbourg court.’[104] The UK courts have followed this advice. The judgment of Mann J, then, is an outlier.

Second, as Lord Sales pointed out, Fearn was not an ideal case to develop the intrusion upon seclusion argument. Any direct claim for intrusion upon seclusion should have been brought against the persons actually intruding. That is, the visitors to the viewing platform with their phones, binoculars and friendly waves. For obvious logistical reasons, this option was a non-starter. These people were not all identified and bringing an action for damages against individuals would not address the real problem: the existence of the viewing gallery itself. In targeting the Tate Gallery therefore, the claimants focused on their use of their land. This connected the presence of the viewing platform with the visual intrusion and suggested an action in private nuisance. The only direct action available for breach of Article 8 under the HRA failed at first instance; the Tate Gallery not being a public authority.

Thirdly, given the above, the only way the Supreme Court could support the claimants’ action, bar pleading for legislation (which is not forthcoming), was to develop the tort of private nuisance incrementally. This was the approach of the Supreme Court. To quote Lord Leggatt:

No new privacy laws are needed to deal with this complaint. The general principles of the common law of nuisance are perfectly adequate to do so. … [T]he common law has already developed tried and tested principles which determine when liability arises for the type of legal wrong of which the claimants complain. [105]

As this article has highlighted, such an approach does, however, have consequences, not least for the development of privacy law in the UK. Post-Fearn, some visual intrusions, which do not fit within the MoPI tort in that they do not involve the publication of private information, are now actionable. However, the limitations of such an action must be noted. Parties will need a right to land and a substantial visual intrusion to their ordinary use of land deriving from a special use of land by the defendant. It remains to be seen how ‘substantial’ the visual intrusion must be in the absence of the extreme facts of Fearn itself. Those able to sue, however, will secure protection in excess of that provided under Article 8, arguably privileging a specific set of claimants fortunate enough to possess rights over land.

Given this piecemeal approach to privacy, one is left with the question of how the UK courts would respond if there was an intrusion upon the seclusion of an individual who was unable to rely on any of these piecemeal forms of action. In the New Zealand case of C v Holland,[106] for example, the plaintiff had moved in with her boyfriend, who co-owned the property with his friend (the defendant). The intrusion occurred on a single occasion when the defendant made video recordings of the claimant in the shower, downloading them to an external hard drive. There was no evidence that he had published or showed them to anyone else. In this case, as a licensee with no right to land, no repetition amounting to harassment and no publication of private information, the claimant would have no possible tortious action against the defendant in English law. Equally, in the Ontario case of Jones v Tsige,[107] the facts would render it difficult to find a claim under the piecemeal approach. Here, Jones had discovered that Tsige (a bank employee) had been surreptitiously looking at her banking records.[108] While Tsige was disciplined as a bank employee, the judge found her deliberate, prolonged and shocking actions required a more effective response. In both cases the court felt the law would be deficient if it did not provide a response to such deliberate and significant intrusion into the privacy of the claimants.[109] On this basis, commission of the tort of intrusion upon seclusion was found. Would a UK court be content not to respond in the same circumstances? Given the unlikelihood of legislation, academics are now starting to seriously contemplate whether there are other ways of developing the law. There is increasing support for the premise that the tort of misuse of private information could be incrementally extended to intrusion upon seclusion.[110] Some support may also be derived from obiter comments from the courts.[111] Given the limited room to manoeuvre indicated by Fearn, this looks like the most realistic option should the facts of Holland or Tsige arise in a UK court.

Lord Reed argued recently that one aspect of the common law is its desire to provide ‘an evolving and pragmatic response to specific problems thrown up by life at specific times and places.’[112] This seems to be what the majority decision in Fearn achieves. However, as has been seen, it provides only a limited piecemeal response to visual intrusion. The crucial question, which remains unanswered in Fearn, is what will happen when there is a blatant intrusion upon seclusion and the piecemeal solutions do not provide a remedy. Entirely unintentionally, it may be that Fearn, by advocating legal development by incremental extensions of existing torts, provides support for those advocating an extension of the tort of misuse of private information to cover intrusion upon seclusion. Under the separatist logic of the court, Fearn indicates that this is by far the best candidate for those seeking a remedy for unwarranted intrusion into the privacy of the private lives of ordinary citizens in UK law.


  1. [2023] UKSC 4, [2024] AC 1.

  2. ibid [102].

  3. ibid [7].

  4. See Jones v Tsige 108 O.R. (3d) 241, 2012 ONCA 32 (CA); C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672; Restatement (Second), of Torts § 652B which all deal with deliberate and significant intrusions into the seclusion of another or his or her private affairs or concerns by creating specific tortious responses. See TDC Bennett, ‘Emerging Privacy Torts in Canada and New Zealand: An English Perspective’ (2014) EIPR 298.

  5. DJ Solove, ‘Conceptualising Privacy’ 90 Cal L Rev 1087, 1088 (2002). On the difficulties of defining privacy, see A Monti and R Wacks, Personal Information and Privacy (Hart 2019) 9-10.

  6. Monti and Wacks (n 5) 10.

  7. Restatement (Second) of Torts § 652D: ‘Liability under public disclosure of private facts occurs when a person gives publicity to a matter that concerns the private life of another, a matter that would be highly offensive to a reasonable person and that is not of legitimate public concern.’

  8. Restatement (Second) of Torts § 652B: ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’

  9. WL Prosser, ‘Privacy’, 48 Cal L Rev 383 (1960). The article of Warren and Brandeis is widely credited as the foundation of the US law on privacy. See SD Warren and L Brandeis, ‘The Right to Privacy’ 4 Harv L Rev 193 (1890) with their famous “right to be let alone”, a phrase adopted from Judge Thomas Cooley’s famous treatise on torts of 1879: TM Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract (Callaghan 1879) 29.

  10. Vidal-Hall v Google Inc [2015] EWCA Civ 311, [2016] QB 1003.

  11. [2004] UKHL 22, [2004] 2 AC 457. See, most recently, Bloomberg LP v ZXC [2022] UKSC 5, [2022] AC 1158.

  12. The article detailed her therapy and included photographs of her in the street as she left a therapy session.

  13. For analysis of the reasoning in Campbell and its impact, see Gavin Phillipson’s chapter on Campbell in P Wragg and P Coe (eds), Landmarks Cases in Privacy Law (Hart 2023).

  14. Which came into force in October 2000.

  15. See T Bennett, ‘Judicial Activism and the Nature of “Misuse of Private Information”’ (2018) 23 Comms 74.

  16. K Oliphant and D Nolan, Lunney & Oliphant’s Tort Law: Text and Materials (7th edn, OUP 2023) 804.

  17. Campbell (n 11) [15].

  18. Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406.

  19. See N Moreham, ‘Beyond information: Physical privacy in English law’ [2014] CLJ 350; J Hartshorne, ‘The need for an intrusion upon seclusion privacy tort within English law’ (2017) 46 CLWR 287.

  20. For Canada, see Jones v Tsige 108 OR (3d) 241, 2012 ONCA 32 [70]: ‘I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation’. For New Zealand, see C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672 [86]: ‘I have reached the view that it is functionally appropriate for the common law to establish a tort equivalent to the North American tort of intrusion upon seclusion.’

  21. See eg H Kalven, ‘Privacy in Tort Law: Were Warren and Brandeis Wrong?’ (1966) 31 Law and Contemporary Problems 326; C Fried, ‘Privacy’ (1968) 77 Yale LJ 475; EJ Bloustein, ‘Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser’ (1964) 39 NYUL Rev 962, who argues (at 982 ) that they belong to the same framework of theory.

  22. (n 4) [65].

  23. Photographs on social media had been posted by individual visitors to the platform and had not been authorised by the Gallery, which had sought to discourage such photos being taken.

  24. Mann J has delivered influential judgments in a number of leading MoPI cases including Richard v BBC [2018] EWHC 1837 (Ch) and Gulati v MGN Ltd [2015] EWHC 1482 (Ch) (affirmed [2015] EWCA Civ 1291). One may speculate whether he was allocated Fearn on the basis of his expertise in privacy matters.

  25. Fearn (n 1) [12].

  26. [2019] EWHC 246 (Ch), [2019] Ch 369.

  27. Section 6(1) states that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. This gives rise to remedies under s.8.

  28. It is consistent with the leading case of Aston Cantlow Parish Council v Wallbank [2003] UKHL 37, [2004] AC 546.

  29. Art 8(1): Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

  30. See G Phillipson, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: a Bang or a Whimper?’ (1999) 62 MLR 824.

  31. Under s. 6(3)(a) a court is classified as a public authority for the sake of s.6.

  32. Campbell (n 11). See also McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73. For a general discussion, see P Giliker, ‘English tort law and the “tort” of breach of confidence’ [2014] Jur Rev 15.

  33. (n 26) [174]-[175]. Mann J suggested, however, that it might be limited to the domestic home ibid [169].

  34. J Morgan, ‘(Net) curtains for modern architecture? Privacy, Nuisance and Human Rights’ [2019] CLJ 273, 274.

  35. Aldred’s Case (1610) 9 Co Rep 57.

  36. Hunter v Canary Wharf [1997] AC 655.

  37. [2002] Env LR 30.

  38. (n 26) [205], [211].

  39. None of these options would in reality have been desirable for the claimants. Installing net curtains in a luxury apartment is unlikely to be seen as a desirable design feature. Even the least onerous of the options (privacy film) would not work in the hours of darkness if lights were on inside. Further, it would affect the external appearance of the building and there might have been planning implications in installing the film at a later stage.

  40. (n 26) [215]: ‘the victim of excessive noise would not be expected to buy earplugs. However, privacy is a bit different. Susceptibilities and tastes differ, and in recognition of the fact that privacy might sometimes require to be enhanced it has become acceptable to expect those wishing to enhance it to protect their own interests.’

  41. J Wright, 'A damp squib? The impact of section 6 HRA on the common law: Horizontal effect and beyond [2014] PL 289. This, she contrasts, with earlier optimism: M Hunt, ‘The “Horizontal Effect” of the Human Rights Act’ [1998] PL 423.

  42. D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558.

  43. [2008] UKHL 50, [2009] 1 AC 225, notably Lord Brown at [136]-[139].

  44. [2015] UKSC 2, [2015] AC 1732 [125].

  45. ibid.

  46. For a clear exposition of this argument, see D Nolan, ‘Negligence and Human Rights Law: The Case for Separate Development’ (2013) 76 MLR 286.

  47. See, for example, Wainwright v Home Office [2003] UKHL 53, [2004] 2 AC 406 [52]: ‘a finding that there was a breach of article 8 will only demonstrate that there was a gap in the English remedies for invasion of privacy …. It does not require that the courts should provide an alternative remedy which distorts the principles of the common law.’

  48. Morgan (n 34) 275; E. Nottingham and K Szopa, ‘“Try some net curtains”: The protection of privacy under the tort of private nuisance’ (2019) 35 PN 174.

  49. [2020] EWCA Civ 104, [2020] Ch 621.

  50. [1997] AC 655.

  51. ibid 710.

  52. ibid 687.

  53. D Howarth, ‘Nuisance, planning and human rights: throwing away the emergency parachute’ [2020] CLJ 394, 395.

  54. Coventry v Lawrence [2014] UKSC 13, [2014] AC 822.

  55. (n 49) [83].

  56. ‘… we consider that it would be preferable to leave it to Parliament to formulate any further laws that are perceived to be necessary to deal with overlooking rather than to extend the law of private nuisance’: (n 49) [85].

  57. Wainwright (n 47).

  58. ibid [33]. See J Morgan, ‘Privacy torts: Out with the old, out with the new’ (2004) 120 LQR 393, 398 who remarks that in reality any prospect of a privacy statute is remote: ‘Wainwright confirms and exemplifies the lamentable incompleteness of privacy protection by the common law’. Boonzaier remarks that the Court of Appeal decision in ‘Fearn may mark a newly low ebb’ for human rights protection in tort law. L Boonzaier, ‘Privacy overlooked?’ (2021) 37 PN 95, 99.

  59. See the famous article of FH Newark, ‘The Boundaries of Nuisance’ (1949) 65 LQR 480.

  60. (n 49) [91]-[95].

  61. See eg D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151, [2004] QB 558. D has now been re-interpreted in Poole BC v GN [2019] UKSC 25, [2020] AC 780, [75] to be consistent with conventional tort law principle. In contrast, McKenna v British Aluminium [2002] Env LR 30 has faded into obscurity and has been ignored in recent decisions on standing in nuisance.

  62. See D Nolan, ‘Nuisance and privacy’ (2021) 137 LQR 1, 3.

  63. Fearn (n 1), [112].

  64. ibid [113] (Lord Leggatt). See also Lord Sales: ‘unnecessary and unhelpful’ [206].

  65. ibid [12] (Lord Leggatt).

  66. See Bank of New Zealand v Greenwood [1984] 1 NZLR 525; Shelburne Inc v Crossan Corp, 95 NJ Eq 188, 122 A 749 (NJ Ch 1923); Foley v Harris, 286 SE 2d 186 (Va 1982).

  67. Fearn (n 1) [16].

  68. ‘An important aspect of the amenity value of real property is the freedom to conduct your life in your own home without being constantly watched and photographed by strangers’ ibid [112].

  69. ibid [48].

  70. ibid [49].

  71. Lord Leggatt remarked that ‘To argue that this use of the defendant’s land cannot be a nuisance because [mere] “overlooking” … cannot be a nuisance is like arguing that, because ordinary household noise caused by neighbours does not constitute a nuisance, inviting a brass band to practise all day every day in my back garden cannot be an actionable nuisance’ ibid [92].

  72. The Australian case of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 was distinguished on the basis that the claim was not for visual intrusion but for loss of business arising from the construction of an observation platform which allowed people to watch the races without paying.

  73. Fearn (n 1) [109].

  74. Facilitation (in the absence of inducement, incitement or procuring) does not give rise to liability in English law. Generics (UK) Ltd v H Lundbeck A/S [2006] EWCA Civ 1261; CBS Songs Ltd v Amstrad Consumer Electronics Ltd [1988] AC 1013, [1988] 2 WLR 1191.

  75. Fearn (n 1) [208].

  76. Other torts include trespass to land (Lord Bernstein v Skyviews [1978] QB 479); malicious falsehood (Kaye v Robertson [1991] FSR 62); defamation (Tolley v JS Fry & Sons Ltd [1931] AC 333). As the court notes, the potential for nuisance to offer protection against visual intrusion had been suggested by Winfield in 1931 (PH Winfield, ‘Privacy’ (1931) 47 LQR 23, 27). Fearn [103], [180]. Winfield did, however, use this analysis to argue in favour of an independent tort of offensive invasion of personal privacy.

  77. Such an approach will also be familiar to any private lawyers conversant with the approach English law takes to the doctrine of good faith in contract law. See e.g. ‘English law has, characteristically, committed itself to no such overriding principle [of good faith] but has developed piecemeal solutions in response to demonstrated problems of unfairness’: Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] 1 QB 433, 439 (Bingham LJ).

  78. McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73. Courts have equally found it helpful in relation to torts which balance freedom of expression against protection of reputation, such as defamation. See, eg Reynolds v Times Newspapers [1999] UKHL 45, [2001] 2 AC 127.

  79. Hunter v Canary Wharf [1997] AC 655.

  80. [2002] Env LR 30 [53].

  81. Gillow v UK No 9063/80 (1986), (1989) 11 EHRR 335; Buckley v UK No 20348/92 (1996) (1997) 23 EHRR 101; Prokopovich v Russia No 58255/00 (2004) (2006) 43 EHRR 10; and Bjedov v Croatia No 42150/09 [2012] ECHR 886.

  82. See e.g. O’Rourke v UK No 39022/97 (2001) DA, 26 June 2001.

  83. D Nolan, ‘“A Tort Against Land”: Private Nuisance as a Property Tort’ in D Nolan and A Robertson (eds), Rights and Private Law (Hart 2011).

  84. See, classically, CHS Fifoot, History and Sources of the Common Law (Stevens & Sons Ltd 1949) 95: ‘The inheritance to which Case succeeded, though enlarged in scope, retained its original character. The plaintiff, if he need no longer be a freeholder, must still complain of an injury to land or its appurtenances.’

  85. Hunter (n 79) 706.

  86. Hunter (n 79) 696 (Lord Lloyd).

  87. [1975] 1 WLR 797. Its suggestion that damages could be assessed by analogy with damages for personal injury was rejected in Hunter.

  88. [2009] EWCA Civ 28, [2009] 3 All ER 319.

  89. See S Tofaris, ‘Damages for sewage smells in nuisance and under the Human Rights Act 1998’ [2009] CLJ 273, 274-275.

  90. Fearn (n 1) [48]. The Oxford English Dictionary defines ‘oppressive’ as ‘Weighing heavily on the mind, spirits, or senses; burdensome; overwhelming; constrictive; depressing.’ ‘Oppressive, adj’ (OED Online, OUP 2024)

    <https://www.oed.com/dictionary/oppressive_adj?tab=meaning_and_use#33202723> accessed1 October 2024.

  91. Fearn (n 1) [90].

  92. ibid.

  93. [1978] QB 479.

  94. ibid 489 (obiter on the facts).

  95. Under the Protection from Harassment Act 1997.

  96. We might also hypothesize the actions of James Stewart in Alfred Hitchcock’s 1954 American murder mystery thriller, Rear Window. Would his surveillance of his neighbour satisfy the visual intrusion test in Fearn?

  97. Art 8(2) ECHR. See D Harris, M O’Boyle, E Bates and CM Buckley, Harris, O’Boyle and Warbrick: Law of the European Convention on Human Rights (5th edn, OUP 2023) 508-510.

  98. Fearn (n 1) [114] (Lord Leggatt). For the argument that it plays a larger role than currently acknowledged by the courts, see M Lee, ‘The public interest in private nuisance: Collectives and communities in tort’ [2015] CLJ 329.

  99. Fearn (n 26) [220].

  100. Fearn (n 1) [208].

  101. (n 1) [35]. See J Lee, ‘Different views of nuisance’ (2023) 139 LQR 535, 536 who regards this as a questionable reformulation of existing principles, favouring the minority view.

  102. J Hariharan, 'The view from the top: Visual intrusion as nuisance in Fearn v Tate Gallery’ (2024) 87 MLR 697.

  103. See eg Michael (n 44) [124].

  104. R Bagshaw, ‘Tort design and human rights thinking’ in D Hoffman, The Impact of the UK Human Rights Act on Private Law (Hart 2013) 110.

  105. Fearn (n 1) [112]-[113].

  106. Holland (n 4).

  107. Tsige (n 4), although Moreham suggests a very generous interpretation of the equitable action for breach of confidence might fit the facts: N Moreham, ‘Beyond information: Physical privacy in English law’ [2014] CLJ 350, 361.

  108. Tsige and Jones did not know each other despite the fact that they both worked for the same bank but Tsige had formed a common-law relationship with Jones’ former husband.

  109. See Tsige (n 4) [69] (Sharpe JA).

  110. See e.g. P Wragg, ‘Recognising a privacy-invasion tort: The conceptual unity of informational and intrusion claims’ [2019] C.L.J. 409 who argues that no new action is needed to realise an intrusion tort, but rather existing MoPI principles can be applied to a fact-pattern where the intrusion element dominates. He concludes that the time has come for MoPI to dispense with the limiting factor that it is information based (427). Moreham (n 107) equally has argued that the time has come to adopt a generous interpretation of both breach of confidence and misuse of private information to cover physical privacy: 369-375. Both argue that in both physical and informational privacy cases the fundamental objection is the same: the defendant is obtaining unwanted access to a person by interfering with his or her reasonable expectation of privacy.

  111. See e.g. Gulati v MGN [2015] EWHC 1482 (Ch), [2016] FSR 12 [143] per Mann J; Tchenguiz v Imerman [2010] EWCA Civ 908, [2011] 2 WLR 592 per Lord Neuberger (retention of information).

  112. Lord Reed, ‘Time Present and Time Past: Legal Development and Legal Tradition in the Common Law’ (The Neill Law Lecture, University of Oxford, 25 February 2022) 21 <www.supremecourt.uk/docs/time-present-and-time-past-lord-reed-lecture.pdf> accessed 1 October 2024.