I. Introduction
The decision of the Supreme Court of the United Kingdom in Fearn v Board of Trustees of the Tate Gallery[1] is one of the more interesting and controversial decisions of the recent past. Immediately following the release of the judgment, the view of most commentators appeared to be that the judgment was at least one step too far.[2] Subsequently, the waters seem to have calmed somewhat. There are still those who think that the case was a landmark. In the words of James Lee, for example, the majority judgment ‘transformed the tort of private nuisance’[3] and ‘amounts to a major extension of the tort’.[4] But others think the case much less significant. For instance, Donal Nolan suggests that it will seem much less important in 20 years than it does now,[5] and though Ian Field admits to being disoriented by the decision, in the end he thinks the majority judgment is on the whole orthodox.[6]
This article argues that Fearn is an extremely important decision. But this is not because of its development of the doctrines of the law of private nuisance.[7] Fearn is not important in the way that, say, Hunter v Canary Wharf was important.[8] Nevertheless, the case is extremely important – far more important than Hunter v Canary Wharf – because it recognised the existence and relevance to the law of nuisance of a very fundamental aspect of the right to private property.[9] It is true that this aspect of property had not clearly been recognised, at least in the recent history of the law of private nuisance.[10] That is one reason the decision has appeared novel to many observers. But the aspect in question is extremely important and the need to protect it is growing more urgent. In short, Fearn recognises the crucial importance of the private space. As I hope this article will show, this is fundamental to the protection of liberty.
All that said, there is a lacuna in the majority’s judgment in Fearn. This is that, though these matters are hinted at there, they are not well-developed. The extent to which this amounts to a criticism of that judgment is debatable. A judgment should not contain discursive examination of matters not directly before the court. A judgment certainly should not cover the territory that will be traversed in this article. Nevertheless, this lacuna has meant that that the decision in Fearn is prone to being misunderstood and inappropriately evaluated. This article hopes to remedy this.
II. The Facts in Fearn
The plaintiffs owned flats that neighboured the defendant’s art gallery. An extension to the gallery was opened in 2016, which included a viewing platform offering panoramic views of London. The living areas of the plaintiffs’ properties were visible from this platform, meaning that, when the plaintiffs were at home, they were ‘under constant observation’[11] from patrons. It was said that ‘the number of spectators is in the hundreds of thousands each year; and that spectators frequently take photographs of the interiors of the flats and sometimes post them on social media’.[12] Though the trial judge and the Court of Appeal found for the defendant, this was reversed by the Supreme Court.
III. Five Criticisms
The majority’s decision in Fearn has been subject to five main criticisms. It will be useful to outline them now.
A first draws on the judgment of the trial judge. It maintains that the decision of the Supreme Court allowed the plaintiffs unfairly to rely on the peculiarity of the construction of their flats. The plaintiffs were as affected as they were because their flats possessed floor to ceiling windows which allowed those in the defendant’s property almost unrestricted visual access to their living areas. That would not have been the case had the flats been fitted with opaque walls and windows. On this view, then, the plaintiffs were especially sensitive, and it would be wrong to allow that to impose special obligations on the defendant.[13]
The majority of the Supreme Court considered this view but rejected it on the ground that it involved a misinterpretation of the facts. They maintained that, though the flats had an innovative design, the element of that design key to the dispute between the parties – the floor to ceiling windows – was entirely ordinary for modern inner-city developments.[14] On this interpretation, it would wrong to think of the construction as opening up the plaintiff’s living areas to be viewed or as making the plaintiffs especially sensitive to visual intrusion. The flats were just built in the way that modern flats of this kind ordinarily are.
One might well disagree with this finding of fact,[15] but it is important to see what this would and, more importantly, would not imply about the decision in Fearn. As we will see, Fearn is important because it acknowledges the significance and relevance of the private space to the law of private nuisance. We might describe this as the principle recognised in Fearn. This criticism of the decision does not challenge this principle. It maintains merely that the principle was not appropriately applied in that case. Because of this, and because this article is about the principle and not the finding of fact in Fearn, this criticism is not pursued further. Moreover, in the light of Fearn, one might argue that planning authorities should not allow residential buildings to be constructed as the plaintiffs’ flats were, but again that is a separate point. Even if no more flats are built with floor to ceiling windows, the fundamental issue in Fearn will remain. We can, then, put these criticisms aside for the purposes of this article.
A second criticism draws on the decision of the Court of Appeal. It holds that the Supreme Court’s majority judgment involves an unwarranted, or at least an insufficiently argued for, extension to the law of private nuisance. According to this view, past case law, most notably the decision of the High Court of Australia in Victoria Park Racing v Taylor,[16] rejected the idea of nuisance liability for overlooking and that this was effectively overturned in Fearn.
This criticism was probably the most frequently heard in the immediate aftermath of the release of the judgment. Because of this, it is important to note that this idea was rejected by the majority in Fearn, who insisted that their decision amounted to no extension of the law whatsoever and did not impose liability for overlooking.[17]
[T]he claimants made it expressly clear at the trial that they do not object to the fact that they are overlooked from the Blavatnik Building … What they complain about is the particular use made by the Tate of the top floor. They complain that the Tate actively invites members of the public to visit and look out from that location in every direction, including at the claimants’ flats situated only 30 odd metres away; that the Tate permits and invites this activity to continue without interruption for the best part of the day every day of the week; and that this has the predictable consequence that a very significant number of the roughly half a million people who visit the Tate’s viewing gallery each year peer into the claimants’ flats and take photographs of them. To argue that this use of the defendant’s land cannot be a nuisance because 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; or that because the smell of your neighbour’s cooking at mealtimes is something you have to put up with, noxious odours from industrial production cannot be an actionable nuisance.[18]
As I interpret this passage, the argument is compelling and will be supported below. The problem is that it is not only possible but even natural to interpret the passage differently and, on this reading, it supports the criticism under examination.
On that interpretation, the passage says that not all cases of overlooking will be nuisances, but maintains nevertheless that the nuisance in Fearn was for overlooking. On this view, overlooking will be a nuisance if there was enough of it.[19] This is suggested by the presented examples. In the first, the problem is noise. In the first case (household noise), there is no liability but in the second case (brass band) there is. Why? It seems that this is because there is more noise in the second case, both in the sense that the band is louder and because they play all day. Likewise, in the second example where the problem is smell, there is no liability in the first case (cooking smells) but there is in the second (noxious odours). Why? Apparently, it is because the smell in the second case is worse and lasts longer.
In the first half of the paragraph, mention is made of the fact that the defendant invited the overlookers onto the platform and so on, but the point of this discussion seems to be not the identification of the nuisance itself but to explain why the defendant is responsible for it. The defendant itself was not overlooking the plaintiffs’ flats, but the defendant invited huge numbers of people to do so and that is why it is responsible. On this view, the nuisance remains the overlooking by the people the defendant invited onto its viewing platform. Given this interpretation, the claim that Fearn did not extend liability will seem hollow. Moreover, the decision in that case may seem inconsistent with that of the High Court of Australia in Victoria Park Racing v Taylor,[20] despite the denials in Fearn.[21]
Below, I will argue that this interpretation of Fearn is wrong. But people are inclined to read Fearn this way, not only because of the reasoning in the passage just examined, but also because there is something missing from the majority’s judgment. This is an explanation of what the nuisance was. What was the interference with the plaintiffs’ use and enjoyment of land that led to liability? In the absence of this explanation, it is natural to think that, despite the majority’s denial, it had to be overlooking as that is what the majority’s examples seem to indicate. Because this problem also relates to the remaining criticisms, I postpone discussion of it until the following section of this article.
The third criticism of Fearn is that, if a wrong was committed against the plaintiffs in this case, that wrong was a breach of privacy and not a private nuisance. The wrong was not an interference with the plaintiffs’ interest in land but with the plaintiffs’ privacy. Along these lines, it might be suggested that jurisdictions that have recognised a tort of privacy should deal with situations of the kind presented by Fearn through that law and not via the law of nuisance. The situation in England and Wales is different – and requires a suboptimal solution that fudges the issues – because, due to its peculiar historical development, the law in that jurisdiction protects privacy through an action for breach of confidence,[22] which focuses on an inappropriate transfer of information, not relevant in Fearn.[23] In other words, on this view, the majority’s position in Fearn is justified to the extent that it is only because of a problem with English law with which the rest of the common law world is not saddled. We, then, should ignore Fearn.
The majority’s response to this idea was to accept – as we all must accept – that the problem in Fearn was the invasion of the plaintiffs’ privacy; but to maintain that this did not show that liability in private nuisance was inappropriate. The issue is not whether some concern that relates to another area of the law was implicated by the facts in Fearn. The issue was simply whether the facts in Fearn fell under the principles of the law of nuisance. The majority felt that they did.[24]
As a matter of principle, this negative argument has to be right. Many areas of the law protect privacy. If you come onto my land so that you can spy on me through my window, we do not say that your invasion of my privacy means that I cannot sue you for trespass. But this argument will take us only so far. In this example, it is clear that you have violated a right that I have in addition to a right of privacy. You entered my land without my consent. Accordingly, we have no difficulty saying that this was a trespass as well as a breach of privacy and we are comfortable with the notion that I can use the law of trespass to protect my privacy here. The problem is that it is not clear that there has been a breach of the plaintiffs’ rights in Fearn other than a breach of their right to privacy. Again, what is missing is an account of what the nuisance in Fearn was.
A fourth criticism of Fearn is that it inappropriately ignored the public interest. The viewing platform was of great benefit to the public as it afforded wonderful views of London, views that something like half a million people a year enjoyed.[25] The majority’s judgment put this aside,[26] wrongly placing the plaintiffs’ inconvenience higher on the scales of justice than the public interest. Almost invariably added to this criticism was the observation that the plaintiffs were wealthy – though exactly how that was meant to make a moral difference to the case was unclear.[27]
A fifth criticism of the majority judgment in Fearn – much discussed more recently – flows from its reliance on the distinction between ordinary and extraordinary use of land.[28] The plaintiffs succeeded in Fearn because the majority ruled that their use of their flats was ordinary whereas the defendant’s use was not. It is certainly easy to understand the idea. Living in a flat is more ordinary than having a viewing platform. But it is not clear why this matters. The general problem is that the distinction between ordinary and extraordinary use does not explain anything. Why should more ordinary uses trump the less ordinary? Again, what we are missing here is a genuine analysis of what the nuisance was. It is time now to deal with this issue.
IV. What Was the Nuisance in Fearn?
Commentary on Fearn has developed in a curious way. Immediately after the release of the judgment, there was much focus on the nature of the nuisance in the case. There was much talk of overlooking, for example, and much scepticism about liability for such. Since then, however, commentary has tended to shift its focus to more doctrinal issues. That is perhaps natural, and those issues are of course important, but the initial focus should not be lost either. Part of the reason for this is that, if we do not understand the nature of the nuisance in the case, we may misunderstand the doctrine found in the judgment.
So, what was the nuisance in Fearn? Though it would be unfair to suggest that the majority said nothing in answer to this question, they did not say enough.[29] But let us begin by examining what they did say.
Perhaps the central claim was that ‘It follows from the nature of the tort of private nuisance that the harm from which the law protects a claimant is diminution in the utility and amenity value of the claimant’s land’.[30] This is obviously too broad for our purposes. Famously, the defendant’s extension to its hotel in Fontainebleau Hotel Corp v Forty-Five Twenty-Five Inc meant that the swimming pool area of the plaintiff’s hotel could not be used for sunbathing during the key spring vacation period.[31] Clearly, that interfered with the use and amenity value of the plaintiff’s land. Nevertheless, there was no liability. Likewise, the defendant’s extensions in Hunter v Canary Wharf interfered with the use and amenity value of the plaintiff’s land when it affected the plaintiff’s television reception, but there was no liability there either.
More suggestive is the claim that ‘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’.[32] It is easy to understand the good sense in this too, but this could be only the beginning of the explanation we need. Why does being photographed by strangers interfere with the freedom to conduct your life in your own home? Also suggestive is the claim that ‘It is not difficult to imagine how oppressive living in such circumstances would feel for any ordinary person – much like being on display in a zoo’.[33] Again, though, this could be only the beginning of an explanation. What, exactly, would be wrong with being put on display in a zoo? Why is the answer to this not merely that it would breach one’s privacy?[34] And given that the plaintiffs were not put in a zoo, what is the analogy here precisely? We need to answer these questions.
A. Fundamental not Ordinary
As we saw above, the majority adopted the view that, in the law of nuisance, ordinary uses of land trump extraordinary uses.[35] This is a view that has been much criticised. As I have been blamed for it,[36] it may be useful to spend some time examining this criticism.
A first point of criticism is that, it is said, the law focuses not on the specific use to which the plaintiff puts his land but on the capacity of the plaintiff’s land to be used for a wide range of purposes.[37] This seems to me a useful point,[38] but I doubt it has anything like the significance that critics think. The fact is that the plaintiff must complain that the defendant’s activity interferes with her use and enjoyment of her property in some way. I am happy describing this as an interference with the use of property. If one would prefer to call that an interference with the capacity to use, be my guest. I do not see that anything turns on this.[39]
A second point of criticism is made in many different ways, but I think that the fundamental point, as outlined above, is that the distinction between ordinary and non-ordinary use does not really explain anything. Why should ordinary uses be preferred? Linked to this idea is that the distinction between ordinary and non-ordinary use oversimplifies the deliberations that courts need to engage in.[40] My reply to both of these criticisms is the same. I accept them.
Elsewhere, I have suggested that a better way of conceptualising the issue is to think in terms of fundamental versus peripheral, where the former trumps the latter.[41] The idea is that uses of property that are more fundamental to our conception of property trump those that are less fundamental. Exhibit A in the development of this idea is Veale J’s judgment in Halsey v Esso Petroleum.[42] The plaintiff complained, inter alia, about noise which seriously interfered with his enjoyment of his land. Regarding this Veale J said:
This question relates to two distinct matters: the noise of the plant and the noise of the vehicles, the latter complaint including the noise of the vehicles themselves and the attendant noises made by drivers shouting and slamming doors and banging pipes. It is in connection with noise that, in my judgment, the operations of the defendants at night are particularly important. After all, one of the main objects of living in a house or flat is to have a room with a bed in it where one can sleep at night. Night is the time when the ordinary man takes his rest. No real complaint is made by the plaintiff so far as the daytime is concerned; but he complains bitterly of the noise at night.[43]
Naturally, sleeping in one’s home is ordinary, but that is not what makes it especially deserving of protection. What makes it especially deserving of protection is that the activity is ‘one of the main objects of living in a house or flat’. It is fundamental to our understanding of property. Certainly, it is more fundamental than operating an oil depot as the defendant was doing. And so the plaintiff succeeded.
Of course, it is true that the test between fundamental and peripheral uses of land is not self-applying and relies on contestable judgment,[44] but the claim is that the courts have and could continue to produce precedents in this regard that would establish a hierarchy of uses. This, naturally, would be subject to scrutiny and criticism.[45]
In reply, as we have seen, some maintain that this approach is too narrow. Many other matters must also be considered, it is said. Commentators are remarkably confident in asserting this a priori. In fact, describing this approach as a priori is too generous. Surely, to know whether a theory cannot account for the law, you actually have to try to apply the theory to at least hypothetical examples. Commentators, however, just make the assertion that it cannot be done and leave it at that. Their assertation might be right, but we cannot claim to know this just because we do not want it to be true.[46]
Note that this approach provides a reason for liability. As the majority in Fearn pointed out, ‘the law of private nuisance is concerned with maintaining a balance between the conflicting rights of neighbouring landowners – “between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with”’.[47] Holding that ordinary use trumps the less ordinary seems arbitrary. At least it is not self-justifying. But the idea that fundamental uses trump the less fundamental is different. It is not just a test for liability, it explains why the liability is imposed.[48]
B. The Private Space
Veale J’s judgment in Halsey v Esso Petroleum is also useful because it encourages us to think about the moral relevance of the home. There is much that could be said here, of course, but one thing is of particular importance.
This is that the home is a private space. This does not just mean that it is an environment in which one can escape the gaze of others, though it does mean that. Nor does it mean simply that it is a place where one can be alone. For most homeowners,[49] being alone is not what having a home is about.[50] The point, rather, is that home is a place where one gets to be oneself. It is a place where one is free from the pressure to modify one’s behaviour and appearance to fit with the expectations of others.
This is, I think, the deep meaning behind the slogan that ‘An Englishman’s home is his castle’. As the Cambridge Dictionary has it, the saying means that homeowners ‘should control what happens in their own homes, and that no one else should tell them what to do there’.[51] A wonderful illustration of this idea can be found in Charles Dickens’ novel, Great Expectations. One character in the novel, John Wemmick, works as a clerk for the lawyer Mr Jaggers. The job requires Wemmick to adopt a cold, uncaring persona as this reflects the way in which Jaggers runs his business. Wemmick, at work, is strait-laced to the point of absurdity. But this is not, we discover, the real man. In fact, Wemmick is something of an eccentric. He lives in a house in Walworth that is constructed to look like a castle, replete with drawbridge, cannon, and moat. He fires the cannon every evening to the great delight of his elderly father who he loves dearly and acts with warmth, even playful sexuality, towards his girlfriend Miss Skiffins, who he eventually marries. Dickens emphases the distinction between the private and public Wemmick throughout the novel. At one point, for instance, the novel’s hero, Pip, asks Wemmick for advice. Because he is at work, the advice given is sensible but cold – it is the advice that Polonius gives Hamlet.[52] Pip then asks, sensing a ‘loophole’, ‘but would that be your opinion at Walworth?’ ‘“Mr. Pip,” he replied, with gravity, “Walworth is one place, and this office is another. Much as the Aged [his father] is one person, and Mr. Jaggers is another. They must not be confounded together. My Walworth sentiments must be taken at Walworth; none but my official sentiments can be taken in this office.”’[53] Towards the end of the book, Pip makes Wemmick’s private life break into his work life, which exposes Wemmick to the danger of terminating his career, but fortunately things do not come to that pass.[54] In fact, the event leads to what might be the only genuinely human exchange to pass between Wemmick and Jaggers in their lives.
The point made so powerfully by Dickens, and which is so important to the matter under investigation in this article, is the significance of the private space. A home is not merely a place where one can shelter from the elements, prepare food for sustenance, store one’s chattels etc. It is also the primary space in which people get to be themselves, free of the demands of society. This is recognised to be so important that individuals are allowed, for instance, to discriminate in ways that they would never be allowed to do in public spaces. For instance, if I own a shop, I cannot restrict access to that shop on racial grounds. But I can do this in my home.[55] The community is entitled to insist on its norms of social interaction in public spaces – even when those public spaces are privately owned – but the home is private. The norms that govern there are the norms of the homeowners, not the norms of the homeowners’ society.
Of course, one must not take this too far, in either direction as it were. On the one hand, homeowners cannot do just anything in their homes. Naturally, they cannot interfere with the more fundamental rights of others, including their neighbours – a point especially relevant in this context. Nor can a homeowner violate the rights of those who are in the homeowner’s home, especially those who have been invited in.[56] On the other hand, the home is not the only private space. Hotel rooms are another example, though they are not afforded anything like the same level of protection as the home. In fact, though the home should be described as the primary private space and not the only one, there are very few other private spaces. Moreover, the advent of what are called ‘screens’ and ‘“social” media’ has shrunk this even further, bringing the public sphere into the home. In the modern world, due to technology and today’s huge pressure to conform, the protection of the private space is more important than ever. Fearn was a very important development in this regard.
C. The Panopticon
In a series of papers and letters, utilitarian philosopher Jeremy Bentham developed the idea of the panopticon: a design for the construction of a prison.[57] The basic idea was to make each cell entirely open to view by guards who would not be visible to the inmates. This meant that the inmates would constantly be aware of the possibility of being watched. The point of this was to modify inmates’ behaviour by forcing them to act as if they were being watched at all times. They would be compelled to self-regulate in accordance with the norms of the institution. They would, as it were, self-censor their behaviour though the eyes of a partly real but often imaginary other. This was meant to become habitual over time so that the inmate would carry this mode of thought out of the cell when she was released. The goal, in short, was the forced socialisation of criminals through the creation of a kind of social superego that would impose society’s values on the individual.[58]
Though Bentham thought his idea highly progressive and recommended it not only for prisons but also for other institutions such as hospital and schools, many modern thinkers regard it as perhaps the paradigmatic vision of a totalitarian nightmare.[59] It received its most terrifying expression in the idea of Big Brother and the telescreen in George Orwell’s Nineteen Eighty-Four.[60]
Of course, that work is of restricted relevance to this investigation, because behind Big Brother and the telescreens lay a maleficent government. This is a long way from the viewers standing on the observation platform of the Tate gallery, ostensibly just having a good time. But two things need to be said about this.
First, the Tate gets off very lightly in even the majority’s judgment in Fearn. For instance, it is said that ‘The Tate does not encourage visitors to peer into the claimants’ flats. Indeed, in response to complaints from the claimants it posted a sign in the viewing gallery asking visitors to respect the privacy of the Tate’s neighbours and instructed security guards to stop photography of the flats’.[61] No doubt, faced with court action, the defendant was inclined to take these measures – though it must be noted, as the majority said, that the trial judge ‘did not regard these steps as likely to achieve much, describing them as “not quite wholly useless”’.[62] But the majority also noted of the viewers that ‘Some look, some peer, some photograph, some wave. Occasionally binoculars are used’.[63] How did the binoculars get there?
The answer is that they were installed by the artist Max Siedentopf in a rather typical – one might say cliché (consider, for instance, Marcel Duchamp’s Readymades,[64] which were groundbreaking at the time, that time being a centry ago) – modern art attempt to turn London into an artwork. The idea was that the plaintiff’s properties, and the plaintiffs themselves, would be part of this ‘installation’. Contrary, then, to the impression given by the judgments in Fearn, there was a deliberate decision to turn the plaintiffs’ private spaces into public ones, the plaintiffs and their property being used for the gallery’s public purposes.
The second point is that the horror depicted in Nineteen Eighty-Four does not all turn on the maleficence of IngSoc. This is how the significance of the telescreen is introduced.
Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live – did live, from habit that became instinct – in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.[65]
This is particularly terrifying because the watchers protect a terrible regime, but one would need a very poor imagination indeed to fail to see that the situation would remain awful even if the Thought Police were replaced by watchers who were indifferent or even benign.
Moreover, Orwell goes on to tell us that Winston’s particular screen:
was in an unusual position. Instead of being placed, as was normal, in the end wall, where it could command the whole room, it was in the longer wall, opposite the window. To one side of it there was a shallow alcove in which Winston was now sitting, and which, when the flats were built, had probably been intended to hold bookshelves. By sitting in the alcove, and keeping well back, Winston was able to remain outside the range of the telescreen, so far as sight went.[66]
This helps to reveal a crucial point that will be developed more fully below. The intrusion here not only violates Winston’s privacy, it affects his relationship with the property itself. Winston can even approach being himself for brief moments only in the space not viewed by the telescreen. In a very real sense, then, only that space is a candidate for being his home. The rest of the flat is not his private space but is rather a public space which has been allocated to him for his use.[67]
This is also reflected in the fact that when Winston forms a clandestine relationship with Julia and they wish to be alone, they at first agree to meet in the woods. They cannot be themselves in their flats. They will be arrested if they meet there. The only place they can be truly alone – truly alone together in that wonderful phrase – is in the woods.
In an absolutely remarkable portrayal of how debilitating surveillance can be, Orwell has Winston reflect in the moment when they find themselves alone on the singing of a thrush.
Perhaps it had not seen them. It was in the sun, they in the shade. It spread out its wings, fitted them carefully into place again, ducked its head for a moment, as though making a sort of obeisance to the sun, and then began to pour forth a torrent of song. In the afternoon hush the volume of sound was startling. Winston and Julia clung together, fascinated. The music went on and on, minute after minute, with astonishing variations, never once repeating itself, almost as though the bird were deliberately showing off its virtuosity. Sometimes it stopped for a few seconds, spread out and resettled its wings, then swelled its speckled breast and again burst into song. Winston watched it with a sort of vague reverence. For whom, for what, was that bird singing? No mate, no rival was watching it. What made it sit at the edge of the lonely wood and pour its music into nothingness? He wondered whether after all there was a microphone hidden somewhere near. He and Julia had spoken only in low whispers, and it would not pick up what they had said, but it would pick up the thrush. Perhaps at the other end of the instrument some small, beetle-like man was listening intently – listening to that. But by degrees the flood of music drove all speculations out of his mind. It was as though it were a kind of liquid stuff that poured all over him and got mixed up with the sunlight that filtered through the leaves. He stopped thinking and merely felt. The girl’s waist in the bend of his arm was soft and warm. He pulled her round so that they were breast to breast; her body seemed to melt into his.[68]
At first, Winston cannot comprehend the idea of acting without being observed. He cannot understand why the bird would sing if no one could hear it. The bird is just being itself, but that makes no sense to Winston. But, eventually, the bird’s display of itself, being itself, infects Winston. He stops thinking, turning off the Big Brother superego that inhabits his head, and just feels – ie feels his own feelings. This in turn seems to make it possible for him truly to be with Julia: to be alone together with her.
Later, they find what they believe to be a room in a house that is not under surveillance. Winston’s experience of this is described as follows.
Winston stopped reading, chiefly in order to appreciate the fact that he was reading, in comfort and safety. He was alone: no telescreen, no ear at the keyhole, no nervous impulse to glance over his shoulder or cover the page with his hand. The sweet summer air played against his cheek. From somewhere far away there floated the faint shouts of children: in the room itself there was no sound except the insect voice of the clock. He settled deeper into the arm-chair and put his feet up on the fender. It was bliss, it was eternity.[69]
It is not at all difficult, I think, to imagine the plaintiffs in Fearn having had much this kind of feeling when the viewing gallery closed for the evening.
Again, however, against all of this one might respond that the analogy with Nineteen Eighty-Four is inappropriate, as a key feature of that book is the malevolence of the government. Of course, that is a key feature of the book, but I think it must be clear that the horrifying impact of the surveillance described in that book does not all depend on that. Winston, of course, was beset by many problems; but one of them was his inability to find any private space in which he could be himself. That would not change if IngSoc were well meaning. Nor does it change anything important here to point out that the Tate’s viewing platform was in the public interest or that the Tate’s or the viewers’ behaviour was all in good fun. That would only show that the Tate had managed to produce a blending of the evils of Nineteen Eighty-Four and Brave New World.[70] ‘Everyone belongs to everyone else’,[71] Brave New World tells us, and that seems a good summary of the attitude of some who support the Tate to the plaintiffs’ living spaces. It is all in the public interest, we are told.
Having a private space is crucially important psychologically and morally. This is one of the reasons homelessness is a moral abomination, though of course it is not the only one.[72] Being constantly under surveillance is a serious violation of oneself as a moral person. When it is sufficiently pervasive, one will find it impossible to be oneself. One will lose oneself, which is what the panopticon and the telescreen were designed to achieve. Given its pervasiveness, there can be little doubt that the surveillance that occurred in Fearn was of this kind.
D. Interference with Property, not Merely with Privacy
But, one might suggest again, these concerns all relate to privacy and not property. This is wrong. Of course privacy is an issue here, but that does not show that there is not also a violation of the plaintiffs’ interest in their property. It is a fundamental feature of a property right to a home that the home is a private space and not merely a public space to which one has special rights of access. A private space is not merely one to which others can be excluded, it is one in which one can be oneself. The plaintiffs were deprived of this in Fearn. Their living spaces were made into public spaces by the activity of the defendant.
This must have affected their relationship with the relevant parts of their flats. Like Winston and his alcove, they would have felt that the parts of the flat hidden from public view truly belonged to them in a way that the other parts did not. The bathroom, perhaps, was theirs, but the lounge was shared with the viewers at the Tate. If we are going to say that smell and noise can be a nuisance because of the impact they have on plaintiffs’ use and enjoyment of their land, why on earth would we not include this? There could not be an interference with one’s right to use and enjoy one’s land more fundamental, other than the destruction of the home itself.
Note that the position advanced here is not that the right to privacy grounds the law of nuisance, even in part. I am not saying that the law of nuisance responds to violations of the right to privacy. That law is entirely based on the plaintiff’s property rights. The claim made here is that property rights also protect an interest in privacy, so that the protection of the private space is an aspect of the right to property. It is only in this indirect sense that we can say that the law of nuisance protects the right to privacy.
V. Concluding Remarks
It is said that the jurisdiction in which Fearn occurred is one of the most surveilled on the planet.[73] The fact that people have become numb to this is, I think, one of the reasons for the opposition to the decision in that case. It does not seem so big a deal to be watched by viewers on the Tate’s viewing platform if we are all being watched much of the time anyway. But surely this point should make us more, not less, worried about surveillance and more, not less, in favour of the decision in Fearn.
Why is Fearn so important? Because it protects the private space. In doing this, it makes illegal a huge number of deleterious activities that governmental and private agents now have the technological ability to carry out with ease. In this respect, we might summarise this aspect of the case with the slogan: Fearn makes the telescreen illegal. Of course, this cannot prevent exceptions being made that allow for morally unjustified surveillance, but Dicey surely had a point when he said that the best way to protect liberty was not to produce specific legal protections of its aspects, but rather to create a general atmosphere of liberty so that violations of liberties appear as aberrations requiring special justification.[74] Fearn is crucial in this regard, because it makes a norm against surveillance a part of the general law.
In that light, it is important to see that, Fearn aside, it is not per se illegal to surveil private property. Consider, for instance, this advice to people installing CCTV cameras from the Information Commissioner’s Office. ‘People should try to point their CCTV cameras away from their neighbours’ homes and gardens, shared spaces or public streets. But this is not always possible. When people capture images and audio recordings outside of their property boundary, they should consider how intrusive this activity is. They should consider whether they can point their cameras elsewhere or, if possible apply filters or privacy blocks. In these circumstances, data protection law also requires them to follow certain rules – although these are difficult to enforce’.[75] In other words, you can surveil your neighbours’ private spaces, but please be careful what you do with any information you capture. Surely, all of this grovelling for respect for what ought to be the neighbours’ rights is a sign of a system that has seriously lost its way. Fearn is an important corrective to this.
At least the position of the ICO reflects the correct view that surveillance of private spaces such as homes is morally of a different order to surveillance in public, where even these protections are absent or weakened. One important recognition of this especially relevant here was in the Australian case Raciti v Hughes, in which the Court held that the defendant committed a nuisance when he installed a CCTV camera that captured the plaintiff’s rear section.[76] Again, this was not just a violation of privacy but an exertion of control over the plaintiff’s property, the mechanism of which has been analysed above.
It is also significant to note how different Fearn was from Victoria Park Racing v Taylor when these cases are properly understood. In the latter case, the first defendant had erected a platform on his land to view the neighbouring plaintiff’s racecourse. The second defendant broadcast from the platform radio commentary on the plaintiff’s races. As a result, many of the plaintiff’s potential patrons stayed away, causing the plaintiff to suffer loss. By a majority, the High Court of Australia ruled that this was not a nuisance. Though it has been claimed that the decisions in Fearn and Victoria Park are inconsistent, that is clearly wrong. The plaintiff’s property in Victoria Park was not a private space. On the contrary, it was a space into which the plaintiff routinely invited the public. His complaint was that not enough of them were showing up – that the space was too private, if you like. The situations in the cases could not be more different.
The protection of private spaces is of absolutely fundamental importance to our liberty. That protection could come from two directions. It could seek to protect the primary good that public spaces protect. That would focus on privacy. But we could and should also protect those spaces themselves. The right way to do that is via the elucidation and protection of property rights (including the property rights of renters, etc). In this light, Fearn is a decision of fundamental importance. It is one of the most important developments in the history of the law of nuisance.
Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, [2003] AC 1.
See, eg, the discussions at https://www.stevehedley.com/odg/admin/2023.htm. According to Nicholas J McBride, ‘“A Straightforward Case of Nuisance”’: A Note on Fearn v Tate Gallery [2023] UKSC 4’ (University of Cambridge, Legal Studies Research Paper Series, April 2023, No 14/2023) 4: ‘the release of the decision in Fearn triggered more discussion … than any other case in the history of the Group (which must have been running for about 20 years now)’.
James Lee, ‘Different Views of Nuisance’, (2023) 139 Law Quarterly Review 535, 536.
ibid at 541.
Donal Nolan, ‘Private Nuisance After Fearn v Tate Gallery’ (2024) 5 Journal of Commonwealth Law 31.
Ian Field, ‘Variations on a (Bad) Theme: An Australian Perspective on the Fearn Decision’(2024) 5 Journal of Commonwealth Law 187.
These are not insignificant, and I will have something positive to say about them, mainly in the footnotes of this article. However, that is not what is really important about this case.
Hunter v Canary Wharf [1997] AC 655 (HL).
Note that this is to contradict the suggestion made in McBride (n 2) 7-8, that a Kantian approach to liability cannot support the decision in Fearn.
Older case law may tell a different story. See, eg, Cherrington v Abney Mill (1709) 2 Vern 646, 23 ER 1022; Chandler v Thompson (1811) 3 Camp 78, 170 ER 1312.
Fearn (n 1) [48].
ibid.
I have supported this principle in Allan Beever, The Law of Private Nuisance (Hart, Oxford 2013) 33-37.
Fearn (n 1) [79]-[80].
Having been to the site, I have to say that I can well see the force of this view. The apartments do seem to be designed to place their occupants on show. This means, as I explain immediately, I might, if pushed, finally say that the principle enunciated in Fearn was misapplied in that case.
Victoria Park Racing v Taylor (1937) 58 CLR 479 (HCA).
See especially Fearn (n 1) [89], [99], [105], [112].
ibid at [92].
See Lee (n 3) 536.
Or at least it does given a certain interpretation of the Australian case. Below, I will argue that this apparent inconsistency relies on a false reading of both cases.
Fearn (n 1) [99].
eg Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457.
This important idea was first suggested to me by Justice James Edelman. See also Lee (n 3) 537.
Fearn (n 1) [112].
ibid at [92].
ibid at [47].
The claim that, had the plaintiffs been poor, they would not have succeeded is surely wrong, unless one means that they would not have been able to fund the litigation. That is right, and it reveals a very important point, but it is hard to see how that could amount to a criticism of the view taken by the majority. One might also mean that only the wealthy would have been able to afford to purchase these apartments. That is certainly true, but again it is not clear what impact that was meant to have on the litigation.
eg Fearn (n 1) [24]-[33].
See also Lee (n 3) 538, who remarks that all the Court really offers is ‘a range of vituperative epithets’.
Fearn (n 1) [11].
Fontainebleau Hotel Corp v Forty-Five Twenty-Five Inc, 114 So 2d 357 (FL Dist CA 1959).
Fearn (n 1) [112].
ibid [48].
It would also, of course, be a false imprisonment; but that is entirely irrelevant to Fearn.
Fearn (n 1) [24]-[28].
Nolan (n 5) fn 86. See also Lee (n 3) 539. The error is meant to lie in Beever (n 13).
Nolan (n 5) 57.
See also Ernest Weinrib, ‘Ownership, Use, and Exclusivity: The Kantian Approach’, (2018) 31 Ratio Juris 123, 130.
Nolan (n 5) fn 86 also claims that Beever (n 13) advanced the view ‘that the tort of private nuisance protects a seemingly endless series of rights to use property in specific ordinary ways, such as a “right to store chattels”. But in truth, like other nominate torts, it protects (or instantiates) only one right’ and that my error unfortunately influenced Lord Leggatt. But Nolan’s argument rests on a false dichotomy. I own my car. This means that I have a right to drive it, to clean it, to store things in it, to play my favourite music on its sound system and so on. Of course, these rights are aspects of the one right of ownership, but it is wrong to insist that this means that the more specific rights do not exist. They do exist. They exist because they are aspects of the more basic right. Kant thought that there was only one innate right (Immanuel Kant, ‘The Metaphysics of Morals’, (1996) Practical Philosophy 353, 6:237-238), but that does not mean that we cannot speak of a right to bodily integrity, to freedom of movement, and so on. The mistake here is similar to the argument that human beings cannot exist if they are really collections of molecules.
eg Lee (n 3) 539; Nolan (n 5). Cf the more cautious McBride (n 2) 12.
Beever (n 13) ch 3. For the record, I am not recommending this for courts’ use. Common law courts seem allergic to abstract, ‘philosophical’ notions of this kind. They like to pretend to be ‘practical’. I expect that they would prefer ‘ordinary’ to ‘fundamental’ for this reason. My point is that ‘ordinary’ has to be understood to mean ‘fundamental’ if this approach is to work.
Halsey v Esso Petroleum [1961] 1 WLR 683.
ibid 696-697.
Critics’ reaction to this type of ‘admission’ has been curious. For instance, Nolan ((n 5) fn 144) maintains that the view advanced in Beever (n 13) ch 5 as to how the parties’ uses of land are to be determined is too uncertain. It is certainly less than ideally certain, but I have two replies. The first is that the uncertainty Nolan notices is a product, not of my particular approach to the law of nuisance, but of the structure of human cognition. (I have analysed this in Allan Beever, Law’s Reality: A Philosophy of Law (Edward Elgar, 2021) chs 5-6. The uncertainty is ineliminable. It is as much in any theory as it is in mine. Second, the objection seems in any case tendentious, when the suggestion that follows the criticism is that my view be replaced by reference to a ‘long list of considerations’, an approach that is highly discretionary on its face. This is like being criticised for suggesting that one could read by the light of the full moon on the understandable basis that it is rather dim to find that the alternative suggestion then made by the critic is to read in pitch darkness.
See especially Beever, The Law of Private Nuisance (n 13) 25-27.
A related criticism is that the view advanced in ibid wrongly holds that a court must focus on the defendant’s use of her land. See eg R.A. Buckley, [2014] Cambridge Law Journal 174; Nolan (n 5) 70. I agree with this criticism. First, a point of clarification. Buckley and Nolan suggest that the consequence of my original view was that a defendant who was not using his land could not be liable in nuisance. That is wrong. The problem with my original view was that it entails that a defendant not using his land but causing an interference with the use and enjoyment of the plaintiff’s land must necessarily be liable. That seems overly generous to the plaintiff. This problem arose because that view ran two things together. First, to establish liability, the plaintiff must show that her rights have been violated. Second, when the conflict is between the plaintiff’s and the defendant’s use of land, the most fundamental must trump. When these are properly separated, the position does not have the consequence that a defendant who is not using his land must always be liable (or that he cannot be liable). See also, McBride (n 2) 10, who suggestively remarks that ‘The best way of reconciling Fearn with the law preceding it would be to say that after Fearn, the law on private nuisance is primarily concerned with regulating competing land uses, and does so by reference to a “principle of give and take, live and let live” – but that the law on private nuisance extends beyond these kinds of cases to cases where the use value of the claimant’s land is affected by an activity conducted by the defendant not on land but in the air or on the street, and whether that kind of activity amounts to a nuisance is decided by analogy with the competing land use cases’.
Fearn v Board of Trustees of the Tate Gallery (n 1) [18]. Quotation from Sedleigh-Denfield v O’Callaghan [1940] AC 880 (HL), 903.
This is an application of what might be called the principle of priority, as expressed, eg, in Kant (n 39) 6:224: ‘When two such grounds conflict with each other, practical philosophy says, not that the stronger obligation takes precedence (fortior obligatio vincit) but that the stronger ground of obligation prevails (fortior obligandi ratio vincit)’.
In fact, strictly this should not be restricted to home owners but should include renters, etc. I ignore this for convenience here.
For this reason, identifying the wrong as involving an intrusion upon seclusion is really the wrong way to think about matters. The ability to be oneself is what matters. One needs a certain level of seclusion to achieve this, but seclusion is not the good being protected. Incidentally, this also reveals a distinction between this area of the law and privacy.
The Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/englishman-s-home-is-his-castle.
William Shakespeare, Hamlet (OUP, 1914) I, 3, 81-83.
Charles Dickens, Great Expectations (Penguin, 2003) ch 36.
ibid at ch 51.
That does not mean that I can set up signs, etc, advertising this. That would be to take my discrimination from the private to the public sphere.
See especially Depue v Flateau 111 NW 1 (Minn 1907); Horsley v MacLaren [1972] SCR 441.
Many of these have been usefully collected in Jeremy Bemtham, Panopticon versus New South Wales and other Writings on Australia (University College London Press, 2022).
Sigmund Freud, Beyond the Pleasure Principle (C.J.M. Hubback tr, International Psycho-Analytical Press, 1922).
Important works include Shirley Robin Letwin, The Pursuit of Certainty (Cambridge University Press, 1965); Gertrude Himmelfarb, ‘The Haunted House of Jeremy Bentham’ in R. Herr and H.T. Parker (eds), Ideas in History: Essays Presented to Louis Gottschalk by his Former Students (Duke University Press, 1965); David John Manning, The Mind of Jeremy Bentham (Longmans, 1968); Michel Foucault, Discipline and Punish: The Birth of the Prision (A. Sheridan tr, Penguin 1977); Gilles Deluze, ‘Postscript on the Societies of Control’, (1992) 59 L’Autre 3; Thomas Mathiesen, Towards a Surveilant Society (Waterside Press, 2013).
George Orwell, Nineteen Eighty-Four (eBooks@adelaide, 2016).
Fearn v Board of Trustees of the Tate Gallery (n 1) [49].
ibid.
ibid at [5].
The most famous and influential of these – Fountain (of which 16 copies were made) – is on display in the Tate.
Orwell (n 60) ch 1.
ibid.
Of course, in the story, it is also true that the apartment is not Winston’s private property, there being no such thing.
Orwell (n 60) ch 2.
ibid at ch 9.
Aldous Huxley, Brave New World (Vintage, 2007). As my own view is that this is, indeed, at least one of the chief directly self-inflicted dangers to liberty today, it makes me more rather than less worried about the opposition to Fearn. Undermining people’s liberty can be fun, but that hardly justifies it. One of the mottos of the World State in Brave New World is ‘Community, Identity, and Stability’. One might well imagine that being the electoral slogan of a political party coming soon to an election near you.
ibid at ch 3.
It should be noted, however, that the homeless do often seek private spaces.
eg Daniel Boffey, ‘Britain is “Omni-Surveillance” Society, Watchdog Warns’ Guardian (UK) (29 October 2023) <https://www.theguardian.com/uk-news/2023/oct/29/britain-omni-surveillance-society-watchdog-warns>.
This relates to Dicey’s third definition of the rule of law. A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Liberty Fund, 1982) 114.
Information Commissioner’s Office, ‘Domestic CCTV Systems’ <https://ico.org.uk/for-the-public/domestic-cctv-systems/>.
Raciti v Hughes {1995) 7 BPR 14837. See also Suzuki v Munroe [2009] BCSC 1403, (2009) 87 RPR (4th) 68; Wasserman v Hall [2009] BCSC 1317, (2009) 87 RPR (4th) 184.