The Divergent Paths of Commonwealth Privacy Torts

Modern English privacy law has diverged from that of other Commonwealth countries. This article responds to arguments that these countries should seek to align their privacy torts with English law. It catalogues five significant ways in which English privacy law has fashioned a robust right of action, and shows how the comparatively more restrained privacy torts emerging in Canada, New Zealand, and Australia have more in common with each other than they do with the “new methodology” adopted in England. These observations inform a normative question: should Commonwealth jurisdictions embrace English privacy jurisprudence? Harmonization is tempting because of a general underdevelopment of privacy torts in Commonwealth jurisdictions, which have not had the same opportunities to hone principles through decided cases that England has experienced. Yet, that disparity is itself revealing. We suggest that the English approach is a product of England’s legal and social climate, as the more restrained approaches of other Commonwealth jurisdictions are an expression of theirs. The developments in Britain’s former dominions nonetheless reflect a principled way to reconcile privacy and countervailing free expression interests in the context of those jurisdictions.