The common law right to privacy in Scotland
21 September 2020
Last week, the Inner House of the Court of Session refused a reclaiming motion in relation to the use of racist, antisemitic and sexist WhatsApp messages in misconduct proceedings against ten police officers. The judgment discusses several interesting issues, such as the police officers’ reasonable expectation of privacy when exchanging such messages, which can be found here.
However, the focus of this article shall be on an aspect of the case which was not cross appealed: the existence of a common law right to privacy in Scotland. Despite not being an issue of contention, the Lord Justice Clerk, Lady Dorrian, took the opportunity to express her views on the matter. These now cast doubt over the existence of such a right – one which Lord Bannatyne, from the Outer House, believed was nascently recognised in case law.
Several misconduct charges were brought against ten police officers (“the reclaimers”) as a result of what Lord Bannatyne described as “blatantly sexist and degrading” messages posted in group chats on WhatsApp. These messages were discovered in July 2016 during an investigation into a serious sexual offence, of which the reclaimers were not persons of interest.
The reclaimers initially raised judicial review proceedings in the Outer House against the Chief Constable of Scotland and a Chief Superintendent of Police (“the respondents”). They sought two court orders. The first was an order finding and declaring that the use of WhatsApp messages to bring misconduct proceedings for non-criminal behaviour was unlawful and/or incompatible with their rights under Article 8 of the European Convention on Human Rights (“ECHR”). The second was an interdict to prevent the respondents from conducting any further misconduct proceedings on the basis of, or involving the use of, the messages in question.
Outer House Decision
The Outer House held, among other things, that a common law right to privacy existed in Scotland. This was said to reflect the rights protected under Article 8 ECHR, except that it would apply to both public and private parties.
While only a few Scottish judgments had previously favoured such a view (see -), no other Scottish court had ruled definitively on the matter. By way of contrast, the English courts had, for more than a decade, acknowledged the existence of such a right through the breach of confidence action and its interpretation in line with Article 8 ECHR.
In some respects, therefore, the Outer House judgment hardly seemed ground-breaking.
Inner House Decision
As the issue appeared seemingly uncontroversial, it is not surprising that there was no cross appeal questioning on the matter. What is somewhat surprising, however, is that Lady Dorrian could not let Lord Bannatyne’s reasoning “pass without comment” .
Firstly, she questioned his conclusion that there is a “nascent recognition” of a right to privacy in the Scottish common law. In particular, she argued that the process by which such a right became “fully established” was not developed by Lord Bannatyne. Indeed, she noted that his belief that the right would be the same as that protected in terms of Article 8 ECHR was “unexplained”. As such, she concluded that the nature, degree and scope of the right, or how it has progressed over time, was not clearly set out in his analysis.
Naturally, this led her to question the existence of such a right in Scots common law. Her analysis focused on the foundation of Lord Bannatyne’s reasoning, the case of Campbell v MGN Ltd. She noted that this case only focused on one particular aspect of invasion of privacy – the wrongful disclosure of private information – as opposed to a general right to privacy . Further, the case simply elaborated on, and explained, the extent to which private information may be protected at common law . It did not, as Lord Bannatyne concluded, establish a fully protected right of privacy (akin to the all-embracing cause of action for invasion of privacy in the US).
That being said, Lady Dorrian did agree with Lord Bannatyne that obligations of confidence would probably be interpreted in the same way in Scotland as they are in England under Articles 8 and 10 ECHR. However, in her view, this did not mean that a widely applicable general right of privacy existed in Scotland .
Finally, Lady Dorrian considered other cases that Lord Bannatyne used to support his conclusions. The first, Henderson v Chief Constable of Fife Police (only available on Westlaw), she argued was related to the issue of liberty and the limits of police authority, not privacy. The second case, , Martin v McGuinness, she said merely reflected on a general right of privacy in obiter, simply as a response to submissions that were made on the point. As such, Lady Dorrian did not see how these strengthened Lord Bannatyne’s conclusions .
In light of the above, Lady Dorrian begged leave to doubt that the right to privacy in Scots law had reached the absolute stage suggested by Lord Bannatyne. Lord Menzies shared such concerns, but as there was no cross-appeal on this point he did not express any views on the subject . Nor did Lord Malcom, who did not consider it “necessary to dwell” on the current state of the law concerning whether such a right existed.
It is important to note that Lady Dorrian’s remarks were not central to her analysis in deciding the outcome of the reclaiming motion. Indeed, as mentioned above, she simply felt like the matter could not pass without comment. Lord Bannatyne’s conclusion on this point has not, therefore, been overruled.
However, Lady Dorrian’s judgment does cast a huge shadow of doubt over the strength of his analysis. Such doubt should be a caution for any future petitioner who wishes to rely on their right to privacy under the Scottish common law.