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This page intentionally left blank
 NEW DIMENSIONS IN PRIVACY LAW

This broad-ranging examination of privacy law considers the challenges

faced by the law in changing technological, commercial and social envi-
ronments. It encompasses three overlapping areas of analysis: privacy pro-
tection under the general law; legislative measures for data protection
in digital communications networks; and the influence of transnational
agreements and other pressures toward harmonised privacy standards.
Leading, internationally recognised authors discuss developments across
these three areas in the United Kingdom, Europe, the United States, APEC
(the forum for Asia-Pacific Economic Cooperation), Australia and New
Zealand. Chapters draw on doctrinal and historical analysis of case law,
theoretical approaches to both freedom of speech and privacy, and the
interaction of law and communications technologies, in order to examine
present and future challenges to law’s engagement with privacy.

Andrew T. Kenyon is the Director of the Centre for Media and Com-
munications Law at the University of Melbourne, and Associate Professor
in the Faculty of Law. He researches in comparative media law, across topics
in defamation, privacy, journalism, media regulation and copyright. These
interests come together in his role as editor of the refereed international
journal, the Media & Arts Law Review.

Megan Richardson is the Deputy Director of the Centre for Media

and Communications Law at the University of Melbourne, and Associate
Professor in the Faculty of Law. Her research spans the fields of intellectual
property and privacy.
NEW DIMENSIONS IN
PRIVACY LAW
INTERNATIONAL AND
COMPARATIVE PERSPECTIVES

Edited by
ANDREW T. KENYON
AND
MEGAN RICHARDSON

Centre for Media and Communications Law

Faculty of Law
University of Melbourne
cambridge university press
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge cb2 2ru, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521860741

© Cambridge University Press 2006

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.

First published in print format 2006

isbn-13 978-0-511-25654-7 eBook (EBL)

isbn-10 0-511-25654-X eBook (EBL)

isbn-13 978-0-521-86074-1 hardback

isbn-10 0-521-86074-1 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
 CONTENTS

List of contributors page vii

Preface ix

1 New dimensions in privacy: Communications technologies,

media practices and law 1
andrew t. kenyon and megan richardson
2 Privacy and freedom of speech 11
eric barendt
3 Revisiting the American action for public disclosure of
private facts 32
brian c. murchison
4 The internet and private life in Europe: Risks
and aspirations 60
yves poullet and j. marc dinant
5 APEC’s privacy framework sets a new low standard for the
Asia-Pacific 91
graham greenleaf
6 Copyright, privacy and digital rights management
(DRM) 121
david lindsay and sam ricketson
7 Why there will never be an English common law
privacy tort 154
raymond wacks

v
vi contents

8 The ‘right’ of privacy in England and Strasbourg

compared 184
gavin phillipson
9 Privacy and constitutions 229
kenneth j. keith
10 Celebrity privacy and benefits of simple history 250
megan richardson and lesley hitchens

Bibliography 270
Index 286
Index of laws and directives 290
Index of case references 293
 CONTRIBUTORS

Eric Barendt, Goodman Professor of Media Law, Faculty of Laws,

University College London, United Kingdom.
J. Marc Dinant, Computer Scientist, Senior Lecturer at the Univer-
sity of Namur, Belgium; Expert to the Article 29 Working Party of the
European Commission.
Graham Greenleaf, Professor, Faculty of Law, University of New
South Wales, Australia; Co-Director, Australasian Legal Information
Institute.
Lesley Hitchens, Senior Lecturer, Faculty of Law, University of New
South Wales, Australia.
Kenneth J. Keith, Member of the International Court of Justice;
Judge of the Supreme Court of New Zealand; Professor Emeritus, Victoria
University of Wellington, New Zealand.
Andrew T. Kenyon, Director, Centre for Media and Communications
Law, and Associate Professor, Faculty of Law, University of Melbourne,
Australia.
David Lindsay, Senior Lecturer, Faculty of Law, Monash University,
Australia.
Brian C. Murchison, Charles S. Rowe Professor of Law, Washington
and Lee University School of Law, Virginia, United States.
Gavin Phillipson, School of Law, King’s College London, United
Kingdom.
Yves Poullet, Dean, Faculty of Law and Director of the Centre de
Recherche Informatique et Droit, University of Namur, Belgium.
Megan Richardson, Associate Professor, Faculty of Law, University
of Melbourne, Australia.
vii
viii contributors

Sam Ricketson, Professor, Faculty of Law, University of Melbourne,

Australia; Barrister, Victoria, Australia.
Raymond Wacks, Emeritus Professor of Law and Legal Theory, Uni-
versity of Hong Kong.
 PREFACE

It has been a tremendous pleasure to work with leading academic and

judicial figures from five countries in producing this collection which
addresses issues in UK, European, US, Australian, New Zealand and Asian
privacy law. This project began with an Australian Research Council dis-
covery grant on privacy and the internet, awarded to Sam Ricketson,
Megan Richardson and Lesley Hitchens, and then took on a life of its
own. A series of public seminars on ‘Privacy: New Issues and Policies’
was presented under the auspices of the CMCL – Centre for Media and
Communications Law – at the University of Melbourne during 2003 and
2004. We are grateful to the Law School and the sponsors of the CMCL for
their support of the events, and to the administrative staff at the CMCL
who make such seminars run so smoothly.
After the seminar series, we commissioned further chapters to increase
the collection’s breadth and depth, as well as developing all the chapters
with their authors. Thanks to Cambridge University Press for their enthu-
siastic support for this publication as well as to two anonymous referees
who gave some most helpful insights and suggestions on our original
proposal. We also appreciate the contributions of Martin Vranken, in
translating the chapter by Yves Poullet and Marc Dinant, and of Kate
MacNeill and Jason Bosland at the CMCL for their assistance during the
editing phase. Above all, thanks to the authors for their thoughtful chap-
ters and careful revisions, and for their thorough engagement with the
project throughout.

Andrew Kenyon and Megan Richardson

Melbourne, January 2006

ix
 1

New dimensions in privacy: Communications

technologies, media practices and law
andrew t. kenyon and megan richardson

While the idea of ‘privacy’ is venerable,1 modern obsessions with privacy

are largely rooted in the twentieth century, particularly the years following
the Second World War. The precise reasons may vary and change over time.
As any European civilian lawyer will confirm, the European Convention
on Human Rights,2 with its important provision for security of private life
alongside its protection of freedom of expression,3 was a direct response to
the many and varied intrusions on personal integrity that occurred during
the war years. In Europe it still represents a bulwark against organised
authority, and significantly not only one limited to the authority of the
state.
An American lawyer would almost certainly refer to the paradigmatic
work of Warren and Brandeis,4 which preceded the twentieth century
by only a few years, and its later revision by Prosser.5 However, such a
lawyer might well add that the human rights movement of the 1960s and
1970s really established the modern conception of rights as basic to a
democratic polity in the United States – even if it was free speech rather
than privacy that emerged as dominant. The rights had to contend for
success in America’s so-called ‘marketplace of ideas’,6 and the competition
1
Authorities cited for the word ‘Privacy’ in the Oxford English Dictionary Online (Oxford:
Oxford University Press, 1989–2005) date back to the early seventeenth century and before.
2
Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952).
3
Ibid. Article 8 and Article 10 respectively.
4
Samuel D. Warren and Louis D. Brandeis, ‘The Right to Privacy’ (1890) 4 Harvard Law
Review 193. Indeed not only American lawyers commonly cite this – and it is referred to
in the OED, above n.1, as authority for ‘privacy’ as ‘The state or condition of being alone,
undisturbed, or free from public attention, as a matter of choice or right’.
5
William L. Prosser, ‘Privacy’ (1960) 48 California Law Review 383.
6
In the words of Holmes J (dissenting) in Abrams v. United States, 250 US 616 at 630 (1919)
‘that the best test of truth is the power of the thought to get itself accepted in the competition
of the market, and that truth is the only ground upon which their wishes safely can be carried
out . . . is the theory of our Constitution’.

1
2 andrew t. kenyon and megan richardson

was prefigured by the First Amendment’s explicit reference to freedom

of expression as a basic American value and the interpretation of that
constitutional wording by courts, particularly since the 1960s.7 Here at
least there is some basis for difference with the rest of the world.8
English lawyers might observe that privacy has been part of the fab-
ric of English law since at least the case of Entick v. Carrington,9 but
sometimes find it difficult to explain emerging concerns about privacy
except as a European phenomenon swept to England under the impetus
of the European Convention. Such an analysis, however, underplays the
technological and commercial developments that have led to new pres-
sures for privacy protection. And it arguably neglects ongoing domestic
debates about media practices, which are longstanding and have often
been linked to the roles of self-regulatory bodies like the Press Complaints
Commission.10 While the European influence is real and of undoubted
significance, there is also a certain prosaic utilitarianism to contempo-
rary English legal discussions about privacy, which suggests a distinction
from the dignitarian rights-based approaches of continental Europe. If
England can be seen as the first home of utilitarianism, it can also be
acknowledged that while utilitarians might use the language of rights
their ultimate concerns are with social welfare: the ‘greatest happiness for
the greatest number’, as put by Jeremy Bentham and John Stuart Mill.11

7
See, e.g., New York Times v. Sullivan, 376 US 254 (1964); Time Inc. v. Hill, 385 US 374
(1967); Melville B. Nimmer, ‘The Right to Speak From Times to Time: First Amendment
Theory Applied to Libel and Misapplied to Privacy’ (1968) 56 California Law Review 935.
8
See, e.g., Frederick Schauer, ‘The Exceptional First Amendment’ in Michael Ignatieff (ed.),
American Exceptionalism and Human Rights (Princeton: Princeton University Press, 2005)
p. 29.
9
Entick v. Carrington (1765) 19 St Tr 1029.
10
See, e.g., United Kingdom, Home Office, Report of the Committee on Privacy and
Related Matters, Cm 1102 (London: HMSO, 1990) (commonly known as the ‘Calcutt
Report’); Raphael Cohen-Almagor, Speech, Media and Ethics: The Limits of Free Expression
(Basingstoke, UK: Palgrave, 2001) chap. 7 ‘The Work of the Press Councils . . .’ and par-
ticularly pp. 124–32 for a review of the UK history, preceding and following the Calcutt
Report, and the influence of concerns about press intrusion in UK debates; David Sher-
borne and Sapna Jethani, ‘The Privacy Codes’ in Michael Tugendhat and Iain Christie
(eds.), The Law of Privacy and the Media (Oxford: Oxford University Press, 2002) chap.
13 and First Cumulative Updating Supplement (2004); and Russell L. Weaver, Andrew T.
Kenyon, David F. Partlett and Clive P. Walker, The Right to Speak Ill: Defamation, Reputa-
tion and Free Speech (Durham, NC: Carolina Academic Press, 2006) pp. 124–7 and p. 273
for details about the pattern of complaints to the Press Complaints Commission in recent
years.
11
Although Mill at least attempted to acknowledge rights as entailing ‘vastly more important,
and therefore more absolute and imperative’ social utilitites: ‘Utilitarianism’ in John Stuart
 new dimensions in privacy law 3

Those in former English colonies such as Australia and New Zealand

seem more conflicted in attitudes to privacy. Our debates about privacy
and free speech appear as pale companions to English battles between
celebrities seeking to control personal revelations (with one eye to pre-
serving a marketable reputation) and the media whose business includes
celebrity revelation.12 There may be less concern than in our European
counterparts with founding rights on notions of personal integrity;
although we may readily say that privacy is about dignity as much as utility,
there is a sense that we do not hold to this when it comes to providing spe-
cial legal support.13 And although we may reference freedom of speech we
are more cynical than American lawyers about claims as to its fundamen-
tal political importance in the development of an autonomous subject.
Concerns about public security offer another reason to limit privacy, as
do the market imperatives of commerce: in Australia the force of argu-
ments from security or markets may be even stronger than arguments
from free speech. But here Australia does not stand apart from much
of the world, except perhaps in the degree of emphasis. There are other
countries too, for instance in Asia, where in a conflict with commerce or
security privacy may not count for much. In any event, recent interna-
tional trends appear to be going against privacy in relation to issues of
safety: until recently it might have been said in many western societies that
protection of public security could rarely justify severe encroachments
on privacy – notwithstanding concerns about uses of data surveillance

Mill, Utilitarianism, On Liberty and Essay on Bentham, ed. and intro. Mary Warnock
(London: Collins, 1962) p. 321. This position can be critiqued as incoherent, but it does
provide a pragmatic mechanism for accommodating the language of rights within what is
still an essentially utilitarian framework. See further Megan Richardson, ‘Whither Breach
of Confidence: A Right of Privacy for Australia?’ (2002) 26 Melbourne University Law
Review 381 at 391–3 especially.
12
Perhaps it is the UK that is unusual. In 2005, The Economist reported that ‘Britons buy
almost half as many celebrity magazines as Americans do, despite having a population
that is only one-fifth the size’ and ‘[n]ew figures from the Audit Bureau of Circulation
show that the ten best-selling celebrity publications and ten most popular tabloids have
a combined circulation of 23m’: ‘Making and Marketing Celebrities: The Fame Machine’
(2005) 376 (8442) The Economist 49 (3 September).
13
This is particularly clear in the minimal implementation given in Australia to the data
protection standards required under the European Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the Protection of Individuals with
regard to the Processing of Personal Data and on the Free Movement of such Data, 1995, OJ,
L 281, 23 November 1995 (which requires countries outside the EU to provide adequate
protection to personal information in order for data to move freely to them from EU
states): see Privacy Act 1988 (Cth) (especially 2000 amendments).
4 andrew t. kenyon and megan richardson

technologies14 – but this position faces multiple challenges from current

political and public perceptions.
This collection encompasses three overlapping areas of analysis: issues
about privacy protection under the general law, legislative measures affect-
ing privacy that are aimed at data protection within digital communi-
cations networks, and the influences of transnational agreements and
other pressures toward harmonised standards. The issues of general law
can be related to transforming communications technologies and media
practices. The issues of legislative measures, at least those aimed at data
protection within digital communications networks, are connected with
the transactions of individuals, as citizens and consumers, with state and
commercial actors. And the pressures for harmonisation of laws are related
in part to the changing authorities of nation states and the emergence of
new legal organisations and communities of influence, particularly linked
with international trade and the internet.15 The various authors in this
book explore these issues, offering insights that have general as well as
comparative interest.
That freedom of speech and privacy are not always in conflict is the
message of Eric Barendt in chapter 2. Barendt reviews and revises the ‘stan-
dard theme’ that privacy and speech conflict such that one must prevail
over the other; and observes that speech includes private as well as public
expression. Thus where the protection of private speech is in issue, the
dilemma faced in legal cases, sometimes explicit but more often implicit,
is not so much privacy versus free speech as which kind of speech should
be privileged. The analysis suggests that the values associated with privacy
and expression may not be as distinct as commonly supposed. On the one
hand, privacy is not just the right ‘to be let alone’ – the classic Warren
and Brandeis view16 – but includes private interchanges and shared expe-
riences within non-public communities. On the other hand, expression
is not simply about what goes on in public arenas; freedom of expres-
sion includes choices as to mode, timing, location, audience – whether
public or private – and even the choice not to speak at all if expression is
understood as a freedom connected to liberty and autonomy. These points
about privacy’s social dimensions are picked up in the third chapter by
our American contributor, Brian Murchison, who argues that selective
14
See, e.g., Cees J. Hamelink, The Ethics of Cyberspace (London, Sage, 2000).
15
See, e.g., John Braithwaite and Peter Drahos, Global Business Regulation (Cambridge;
Cambridge University Press, 2000); Kathy Bowrey, Law and Internet Cultures (Cambridge:
Cambridge University Press, 2005).
16
Warren and Brandeis, ‘The Right to Privacy’, above n. 4 at 205.
 new dimensions in privacy law 5

sharing of private personal matters is a means to forge close relationships

based on trust, drawing in particular on the work of Richard Rorty –
and his use of Sigmund Freud, Ralph Waldo Emerson, John Dewey and
others17 – and on the work of Charles Taylor.18 The chapter suggests the
importance of maintaining that freedom should not be underestimated
in a society that places high value on free speech, and examines a number
of recent cases in which American courts seem sympathetic to such ideas,
notwithstanding the breadth taken by the courts in construing a ‘matter of
legitimate public concern’.19 While Murchison’s focus is largely on media
publicity, envisaging the self as a ‘web of relations’20 has implications for
later chapters including those focused on digital communications, data
protection and Digital Rights Management (DRM) systems. In addition,
non-US readers may be struck by the presence of the jury as an element
in analysing US privacy protection under its general law. This jury role
is necessary given US federal and state constitutional provisions,21 but
is surely a notable difference which should influence how evaluations of
privacy protection seek to draw comparatively on US experiences.22
Clearly, ‘public’ as well as ‘private’ may have many meanings. Public
expression does not necessarily entail instantaneous communication to
the entire world any more than private expression necessarily entails an
audience of only one. In the past what was called ‘public expression’
was typically directed to a particular audience (albeit bigger or different
from the audience that the privacy subject would have chosen) and pub-
lication was often of a rather transitory nature, at least in terms of the
audience’s practical ability to access the material. In such cases, privacy
interests may not have seemed all that much imperilled if unwanted publi-
cation occurred without the possibility of legal recourse. But the concern is
greater for networked publications, crossing physical national boundaries
17
See, e.g., Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge
University Press, 1989); Richard Rorty, Philosphy and Social Hope (London: Penguin,
1999).
18
Charles Taylor, The Ethics of Authenticity (Cambridge, Mass.: Harvard University Press,
1992).
19
See Restatement (Second) of Torts (St Paul, Minn.: American Law Institute, 1977) s. 625D.
20
Rorty, Philosophy and Social Hope, above n. 17 at 53.
21
The US federal Constitution’s Seventh Amendment provides for a right to jury trial for all
claims above $20; most state Constitutions provide similar rights. See Colgrove v. Battin,
413 US 149 (1973).
22
The presence of juries in both defamation and privacy litigation in the US is a
contrast to the situation in, e.g., England where the jury role extends only to defamation;
see, e.g., Andrew T. Kenyon, Defamation: Comparative Law and Practice (London: UCL
Press, 2006).
6 andrew t. kenyon and megan richardson

and generally being stored and accessible in various forms over long peri-
ods. Potential risks raised by the internet, and various attempts to address
them at the European level, are canvassed in chapter 4 by Yves Poullet and
Marc Dinant. In a close analysis of the network’s open character as well
as its opaque qualities – such as, the lack of transparency to users that can
exist with targeted advertising, differential pricing, limited access to par-
ticular sites, and search engines – they seek to clarify and resolve debates
about the internet’s implications for privacy. Investigating legislative and
market-based approaches that may be suitable for the situation where
information flows and surveillance are facilitated together, they would go
further than current provisions in framing a charter of privacy principles
aimed at increasing the control which data subjects can exercise over their
own circumstances. As Terry Flew notes, the network poses ‘a paradoxical
scenario’ in that consumers are seen as gaining ‘voice’ in the market, but
only through ‘willingly divulg[ing] information about their preferences
as consumers’.23 There is another aspect to this chapter – it shows how pri-
vacy standards within national jurisdictions may be strongly affected by
regional standards, in this case within the EU. Similarly, regional privacy
issues are canvassed in chapter 5 for the Asia-Pacific region. Graham
Greenleaf examines the APEC Privacy Framework24 – the most signif-
icant recent transnational instrument on privacy – within the context
of existing European and US approaches to privacy protection. Usefully
reviewing the history of the Framework’s development, he sets out how
its privacy principles adopt a low standard of protection, whether in com-
parison to existing international instruments or regional national laws,
and raises serious issues for the implementation of the Framework. Like
Poullet and Dinant’s proposals, the analysis is tempered by realism about
the constraints legislators feel when privacy intersects with other interests,
especially in relation to commerce, public security and, in some ways at
least, freedom of speech.
Interests in intellectual property provide another source of potential
constraint, which is the focus of chapter 6 by David Lindsay and Sam
Ricketson. They outline the matters at stake in the conjunction of DRM
systems and privacy – an issue that can be expected to pose significant
future policy questions. Superficially, of course, privacy and intellectual
property have a great deal in common. Both almost invariably concern
information. Both involve preserving a degree of individual control and
23
Terry Flew, New Media: An Introduction (2nd edn, South Melbourne: Oxford University
Press, 2005).
24
Asia-Pacific Economic Cooperation, APEC Privacy Framework, November 2004; available
from http://www.apec.org/.
 new dimensions in privacy law 7

ability to exclude in the face of a public desire for access. Both may be
explained and justified in utilitarian as well as dignitarian policy terms.
And, as the authors suggest, these policy terms reflect different under-
standings of the relation between law and the market. Lindsay and Rick-
etson outline ways in which both economic analysis and consideration
of non-market-based values will be important in framing regulatory
approaches to DRM systems – with a keen understanding of the pos-
sibilities for those approaches to draw on technology as well as on law.
Many of the recent developments in privacy law have concerned not
legislation, or not simply legislation, but law as developed in cases during
the last half decade – particularly in England, New Zealand and the Euro-
pean Court of Human Rights. The final chapters in this book consider the
vexed question of how courts should go about protecting privacy when
the legislature has not provided clear guidance. The issue is not simply
whether a privacy tort or torts would be preferable to reliance on more
traditional doctrines – a development suggested, for example, by Sedley
LJ in Douglas v. Hello! Ltd.25 As Murchison’s analysis shows, privacy torts
are common in US courts, but questions still exist as to whether sufficient
recognition is given to privacy interests to address contemporary social
values. Rather debates about privacy and the general law encompass the
question of whether courts in common law jurisdictions go far enough
in reflecting privacy values in their legal decisions. The contributions
offer some unique insights. In chapter 7, Raymond Wacks contends that
generally conservative English courts are not very interested in imple-
menting what they see as European-style privacy norms and, if anything,
have used doctrines such as breach of confidence as a panacea for the
inadequate protection of privacy. In a somewhat different interpretation,
Gavin Phillipson in chapter 8 suggests that English courts have effectively
adapted breach of confidence into a de facto privacy tort offering a greater
scope for privacy protection than before, but adds that they face difficul-
ties now as the level of privacy protection demanded by the European
Court of Human Rights appears to have expanded markedly in recent
jurisprudence.26 Might it almost be getting to the stage that, as lawyer
and journalist Joshua Rozenberg has predicted, ‘anyone photographed at
a public event ha[s] the right to veto an unflattering shot’?27 In chapter 9
our New Zealand contributor, Sir Kenneth Keith, suggests that, irrespec-
tive of whether a tort of privacy is adopted (and New Zealand courts
25
Douglas v. Hello! Ltd [2001] QB 967 at para. 126.
26
See Von Hannover v. Germany (2005) 40 EHRR 1.
27
Joshua Rozenberg, Privacy and the Press (revised edn, Oxford: Oxford University Press,
2005), p. xvi.
8 andrew t. kenyon and megan richardson

have indeed moved in this direction),28 courts need to be wary about

offering broad support for privacy where the legislature has not elected
to do so, especially given this is an area where there has now been con-
siderable legislation. In the concluding chapter, Megan Richardson and
Lesley Hitchens take as their starting point the historical role of courts
in developing traditional doctrines to serve new situations and circum-
stances, and examine the treatment of breach of confidence and related
doctrines in the nineteenth-century celebrity privacy case of Prince Albert
v. Strange.29 The conclusion drawn is that not only are there surprising fac-
tual parallels to be drawn between this case and modern celebrity privacy
cases but the reasoning in the nineteenth-century judgments shows an
awareness that, notwithstanding the potential exchange value associated
with a celebrity’s image, the choice instead to maintain a degree of privacy
can be defended in utilitarian terms as integral to individual flourishing
and social development, ideas brought out further in the writings of John
Stuart Mill.30
The chapters in this book take different approaches to their subjects –
for example Murchison analyses recent US cases and substantial literature
from outside law to consider possible doctrinal change to US privacy torts;
Wacks and Barendt draw on their own developed philosophical positions
on privacy and free speech; Richardson and Hitchens’ focus is essentially
historical; Poullet and Dinant, Greenleaf, and Lindsay and Ricketson pay
close attention to the interaction of technology and law; Keith provides
a useful judicial perspective; while Phillipson provides a close doctrinal
analysis of contemporary English and European legal judgments. Within
this variety of interests and of methods, some themes recur across the
broad issues of protecting privacy under case law, legislating for data
protection in digital networks, and the roles of transnational agreements
and influences of pressures for harmonised standards: for example, that
private and public are relative concepts; that technology can radically
change the landscape on which laws are made; that in this area questions

28
The history of the tort approach in New Zealand, and its most recent enunciation by the
Court of Appeal in Hosking v. Runting [2005] 1 NZLR 1, is set out in John Burrows and
Ursula Cheer, Media Law in New Zealand (5th edn, South Melbourne: Oxford University
Press, 2005) pp. 245ff. See also Megan Richardson, ‘Privacy and Precedent: The Court of
Appeal’s Decision in Hosking v Runting’ (2005) 11 New Zealand Business Law Quarterly
82.
29
Prince Albert v. Strange (1849) 2 De G & SM 652; 64 ER 293 and (1849) 1 H & TW 1; 47
ER 1302.
30
See, e.g., ‘On Liberty’, in John Stuart Mill, Utilitarianism, On Liberty and Essay on Bentham,
above n. 11 at pp. 126–250.
 new dimensions in privacy law 9

of law and theory appear to be inextricably linked; and perhaps that the
scope for national differences may be reducing. Of course, none of these
recurring themes should be thought of as supporting commonplace, if
somewhat misleading, arguments about digital communications driving
revolutions in social, political and economic practices and sidelining the
role of the state.31 The changes are more nuanced, and the times are less
revolutionary, as this volume seeks to suggest in its exploration of new
dimensions in privacy law.
In doing so, the book lays a base for future privacy research. No doubt
there will be more legislative developments and judicial decisions to be
discussed (including an anticipated appeal to the House of Lords in the
Hello! case). Beyond these, more consideration might be made of media
production practices and the role, if any, that privacy law plays within the
decisions of journalists, editors and producers and their legal advisers.32
There might also be more substantial efforts to engage with contempo-
rary issues of production, circulation and consumption of celebrity iden-
tity, and the interpenetrations of media and celebrity industries in the
production of celebrity content.33 The contested social roles of popular
media content deserve examination. Some contemporary and historical
instances suggest mediated ‘gossip’ about formerly private matters has
reshaped public spheres in more inclusive forms that suggest notable
political potential in such media content.34 But some such practices are
decried as merely being ‘tabloidisation’ – at times inflected by non-explicit
judgments of taste or class35 – and linked to questions about the ethics

31
See further, e.g., Christopher May, The Information Society: A Sceptical View (Cambridge:
Polity, 2002).
32
Existing research into defamation law and the media could provide useful models for such
research endeavours; see, e.g., Weaver et al., above n. 10; Chris Dent and Andrew T. Kenyon,
‘Defamation Law’s Chilling Effect: A Comparative Content Analysis of Australian and US
Newspapers’ (2004) 9 Media & Arts Law Review 89; and Kenyon, Defamation, above n. 22,
chap. 1 for an overview of other empirical research in the field.
33
Useful starting points from varied theoretical perspectives could include Graeme Turner,
Understanding Celebrity (London: Sage, 2004); John B. Thompson, Political Scandal: Power
and Visibility in the Media Age (Cambridge: Polity Press, 2000); Graeme Turner, Frances
Bonner and P. David Marshall, Fame Games: The Production of Celebrity in Australia
(Melbourne: Cambridge University Press, 2000); Catherine Lumby, Gotcha: Life in a
Tabloid World (St Leonards, NSW: Allen & Unwin, 1999).
34
See, e.g., Alan McKee, The Public Sphere: An Introduction (Cambridge: Cambridge Uni-
versity Press, 2005) pp. 32–42 and passim.
35
For a review of arguments about tabloidisation, drawing on primarily UK and Australian
examples, see Graeme Turner, Ending the Affair: The Decline of Television Current Affairs
in Australia (Sydney: University of NSW Press, 2005) chap. 3. Some of the material that
10 andrew t. kenyon and megan richardson

of media practices.36 However, here we are moving beyond the particular

project of this book. It is enough that the collective contributions repre-
sent an important transition towards a sophisticated, multidimensional
treatment of contemporary privacy issues. More could also be said about
each of the chapters, but even a longer introduction could not hope to
do justice to their richness and complexities. For a fuller appreciation we
commend them to your reading.

Turner uses can be updated by reference to the UK regulator Ofcom’s investigation of

public service broadcasting; see, e.g., United Kingdom, Ofcom, Ofcom Review of Public
Service Television Broadcasting: Phase 2 – Meeting the Digital Challenge (London: Ofcom,
2004) and more recent documents in the review available from www.ofcom.org.uk.
36
See, further, Catherine Lumby and Elspeth Probyn (eds.), Remote Control: New Media,
New Ethics (Cambridge: Cambridge University Press, 2003).
 2

Privacy and freedom of speech

eric barendt

Introduction
There is a vast amount of literature both on privacy and on freedom of
speech and of the press as discrete constitutional and legal rights. More-
over, the relationship between them has been explored in a number of
books and law review articles.1 But now the advent of novel electronic
technologies for communication gives a fresh impetus to the discussion
and invites reconsideration of a familiar theme. Simply stated, this theme
is that privacy rights and interests inevitably conflict with the right to
freedom of speech (or expression). A standard argument is that the right
to control the dissemination of personal information may be trumped by
the interest of the public in knowing private, even intimate, facts about
politicians, public officials, or celebrities, because the public has a right to
know the truth about such people. On the other hand, it can be contended
that freedom of speech does not even cover private gossip, since gossip is
not worthy of protection under any clause guaranteeing the right to free
speech. And even if freedom of speech does cover the disclosure of private
or personal information, it does not protect it from legal action in every
case; the two rights or interests have to be balanced and weighed in the
context of the particular facts. The point is that there is always a clash of
rights, which must be resolved either in favour of the privacy right or of
the right to freedom of speech.
In this chapter I want to make a limited challenge to this traditional
perspective concerning the relationship of these two fundamental rights.
I will argue that in some situations the two rights do not conflict. Rather,
the protection of privacy is often essential to freedom of speech, at least

1
E.g., see Raymond Wacks, Privacy and Press Freedom (London: Blackstone Press, 1995);
Eric Barendt, ‘Privacy and the Press’ in Eric M. Barendt (ed.), Yearbook of Media and
Entertainment Law 1995 (Oxford: Clarendon Press, 1995) pp. 23–41; Basil S. Markesinis
(ed.), Protecting Privacy (Oxford: Oxford University Press, 1999).

11
12 eric barendt

insofar as that freedom is understood to refer to the freedom of per-

sonal communication between two individuals or among a small group
of people. This point is particularly pertinent in the context of electronic
communications by the internet, although it is certainly not confined to
them. There are other contexts in which privacy and freedom of speech
go hand in hand, rather than conflict. But of course there are cases of
conflict, and I say something about those cases before turning to others,
where it will be suggested that we need to look at the relationship of the
two rights differently.
A few introductory remarks should be made before we examine these
two categories of case. Privacy is an elusive concept, so elusive in fact that
it has generally proved impossible for Australian and English lawyers to
discover its exact whereabouts in the common law. The Human Rights
Act 1998 came into force in the United Kingdom in October 2000. It
incorporates into UK law the right to respect for private life guaranteed
by Article 8 of the European Convention on Human Rights (ECHR), as
well as the freedom of expression guaranteed by Article 10.2 Many lawyers
thought an inevitable result of incorporation would be that English law
would at last recognise the right to privacy, overcoming the reluctance of
the common law.3 The Court of Appeal has, however, refused to take that
step, notably in A v. B plc,4 when a Premier League footballer unsuccess-
fully attempted to stop a Sunday newspaper disclosing details of his two
casual extra-marital affairs. Lord Woolf CJ preferred to resolve the case on
the well-established principles of breach of confidence, and held that the
public had an interest in reading about the private life of a figure who for
many readers was a ‘role model’. Further, in Wainwright v. Home Office,5
which concerned the strip-searching of the claimant and her son before
visiting another son in prison, the House of Lords rejected the argument
that English common law now recognised a tort of privacy. In the leading
speech Lord Hoffmann considered it would be unwise for the courts to
formulate a ‘high-level right to privacy’; in his view there was a distinction
between the value of privacy, which might influence the development of
the law, and privacy as a legal principle or actionable right.6
2
Opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 June 1952).
3
Strong judicial support for this view was expressed by Sedley LJ in the first ‘privacy’ case to
come to the courts after the Human Rights Act came into force in October 2002: Douglas
v. Hello! Ltd [2001] QB 967 at para. 126.
4
[2003] QB 195.
5
[2004] 2 AC 406. The facts arose before the Human Rights Act came into force, so reliance
could not be placed on the Convention right to privacy.
6
Wainwright v. Home Office [2004] 2 AC 406 at paras. 18–31.
 privacy and freedom of speech 13

The most important recent decision is that of the House of Lords in

Campbell v. MGN Ltd.7 Naomi Campbell brought proceedings when the
Daily Mirror had published a number of articles revealing that she was
receiving treatment at Narcotics Anonymous (NA) for drug addiction;
they disclosed details of the treatment and were accompanied by pictures
of the supermodel leaving a meeting of NA. By a bare majority, the House
of Lords upheld the claim that the publications infringed her privacy,
but both Lord Hope and Baroness Hale, in the leading speeches for the
majority, emphasised that the privacy interest was protected by an action
for breach of confidence.8 In short, the courts in England are reluctant
to recognise a general right to privacy, but are willing to protect privacy
interests through well-established causes of action, notably for breach
of confidence, but also in appropriate circumstances by proceedings for
trespass, nuisance and libel.
The High Court of Australia declined to take the opportunity given
it in the Lenah Game Meats case to formulate a privacy right for the
common law in that country.9 In the circumstances its reluctance was
not surprising. The case concerned an application by a meat processing
company to keep its slaughter methods confidential; it is difficult to think
of a less appropriate context in which to put a fundamental human right
on a legal footing.10 One reason for hesitation on the part of courts in
both Australia and England is that existing remedies effectively protect
privacy, at least in media cases. Consequently, it is unnecessary to overturn
precedent denying the existence of the right. Privacy in England is also
protected by the Data Protection Act 1998 and other specific regulations
concerning telecommunications.11 Complaints can be made to the Press
Complaints Commission or to Ofcom (the Office of Communications).
There are equivalent legal remedies in Australia.12
7
[2004] 2 AC 457.
8
Campbell v. MGN Ltd [2004] 2 AC 457 at para. 82 (Lord Hope) and at paras. 132–3
(Baroness Hale).
9
Australian Broadcasting Corporation v. Lenah Game Meats (2001) 208 CLR 199.
10
See the judgment of Kirby J, Australian Broadcasting Corporation v. Lenah Game Meats
(2001) 208 CLR 199 at paras. 190–1.
11
The Privacy and Electronic Communications (EC Directive) Regulations 2003, SI
2003/2426, which implement from 11 December 2003 the requirements of the EC Direc-
tive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning
the Processing of Personal Data and the Protection of Privacy in the Electronic Commu-
nications Sector, 2002, OJ, L 201, 31 July 2002, discussed below.
12
See David Lindsay, ‘Freedom of Expression, Privacy and the Media in Australia’ in
Madeleine Colvin (ed.), Developing Key Privacy Rights (Oxford: Hart, 2002) p. 157 at
pp. 182–7.
14 eric barendt

Other jurisdictions have been less hesitant. Privacy rights have been
given explicit statutory protection in some Canadian provinces, and in
the vast majority of states in the United States. These rights have a con-
stitutional dimension in both the United States and Canada, although in
the former it is easily trumped by the First Amendment rights to free-
dom of speech and of the press.13 The New Zealand Court of Appeal has
now recognised a common law privacy right, where giving publicity to
private or personal information would be considered highly offensive to
a reasonable person.14 Privacy rights are also protected in many civil law
jurisdictions, notably in France and Germany, and are recognised by inter-
national human rights conventions, such as the International Covenant
on Civil and Political Rights,15 as well as by Article 8 of the ECHR. It there-
fore makes sense to refer to privacy rights or interests, even though two
important common law jurisdictions still decline to recognise a discrete
privacy action and prefer to protect privacy interests in other ways.
But what exactly is the right or interest at stake? The problems in
defining the scope of ‘privacy’ are enormous. I make no attempt to resolve
them in this chapter. But two related points should be emphasised. First,
there is the familiar point that privacy may be infringed in a number of
different ways. The most famous taxonomy of privacy invasion is that
of William Prosser. In a classic article he identified four different torts:
intrusion upon the claimant’s seclusion, the public disclosure of true,
embarrassing facts about her, publicity presenting her in a false light, and
appropriation of the name or likeness (or other attribute) of a claimant
for the defendant’s advantage.16 The public disclosure and false light torts
almost always involve a conflict between privacy and the interests of the
media, in particular their right to freedom of the press. Similar conflicts
occur when the media intrude on a celebrity’s personal space, for example,
to take intimate photographs of her with a view to publication or besieging
her home or that of her friends and neighbours, the practice known as
‘door-stepping’. The intrusion tort may also be committed by the police,
intelligence services, or private detective agencies, in which cases there is
no conflict between privacy and freedom of speech. Moreover, intrusion
by such agencies may not only invade privacy, but may, as will be explained

13
David A. Anderson, ‘The Failure of American Privacy Law’ in Markesinis, Protecting Pri-
vacy, above n.1, p. 139.
14
Hosking v. Runting [2005] 1 NZLR 1; see further, Gavin Phillipson in chap. 4 of this volume.
15
Opened for signature 19 December 1966, 999 UNTS 171, 6 ILM 368 (entered into force
23 March 1976), Art. 17.
16
William L. Prosser, ‘Privacy’ (1960) 48 California Law Review 383.
 privacy and freedom of speech 15

later, inhibit the exercise of free speech rights. The fourth type of privacy
infringement identified by Prosser really involves what are now known
generally as ‘publicity rights’, where a celebrity complains that her right
to market her face or voice, or some other personal attribute, has been
misappropriated to her financial loss. The appropriator, say, an advertising
agency, may be able to claim freedom of commercial speech. But the
celebrity is not really complaining that her privacy has been infringed
in these circumstances,17 so I do not propose to say anything about this
category of case.
But Prosser’s taxonomy should not be regarded as exhaustive. Within
the context of communications law, privacy may be infringed in ways
which do not fit comfortably within his classification. For example, tele-
phone callers and subscribers may prefer not to expose themselves to
identification when making a call in order to prevent their number being
used for commercial purposes. Or the recipient of a telephone call – for
example a doctor whose calls are transferred from her surgery to her home
at weekends – may want to keep a connected line number private. These
are privacy claims, for one aspect of privacy is the freedom to choose
anonymity. Another is the freedom not to be pestered by unsolicited tele-
phone calls or emails (spams), which has been described as ‘attentional
privacy’.18 That right could perhaps be accommodated within the first cat-
egory of privacy invasion identified by Prosser: intrusion on the claimant’s
seclusion. But unlike Prosser’s tort, it need not involve any invasion of her
physical space, bugging or interception of her communications.
The second point about the scope of privacy rights concerns their rela-
tionship to freedom of speech and of the media. The public disclosure and
false light cases do raise a clash or conflict between privacy and freedom of
speech or of the press; the essence of the claim is that information about
the claimant has been wrongly revealed or that false stories have been
circulated about her. There is a clash between individual privacy and the
public’s right to know. But other types of privacy claim do not create this
conflict. For example, consider two straightforward examples. An unau-
thorised police raid may lead to the seizure of pornographic materials.
Employers may monitor the use of computers for sending obscene or
hate messages. In both these circumstances, there has been an intrusion
17
See Robert C. Post, ‘Rereading Warren and Brandeis: Privacy, Property, and Appropriation’
(1991) 41 Case Western Law Review 647.
18
David Friedman, ‘Privacy and Technology’ in Ellen Paul, Fred Miller and Jeffery Paul
(eds.), The Right to Privacy (Cambridge: Cambridge University Press, 2000) pp. 186–212
at p. 187.
16 eric barendt

on personal privacy; but in these cases, the intrusion, it can be argued,

also interferes with the exercise of the right to free speech, because, in
the absence of some personal privacy, individuals will be unable freely to
read the material or send messages of their own choice. Further, viola-
tions of attentional privacy are remedied in order to enable subscribers
to use communications systems free from the nuisance created by cold
telephone calling and email and fax spams. I will discuss these particular
instances in more detail in the third section of this chapter. At this junc-
ture, it is important merely to make the point that some privacy claims
support freedom of speech, rather than conflict with it.

Balancing privacy and freedom of speech

in public disclosure cases
This section discusses cases where there is generally a conflict between
privacy and free speech or press rights.19 I will concentrate on the public
disclosure tort, since false light cases pose relatively few difficulties. In false
light cases the publication disseminates what are conceded to be untrue
claims about the claimant by, for example, attributing to her remarks
she never made or giving fictional (but non-defamatory) accounts of her
behaviour. There is surely little public interest in their publication, par-
ticularly if they are more or less invented fabrications about aspects of the
claimant’s private life.20 But restrictions on the public disclosure of true,
but embarrassing information, are much more problematic, particularly
when the claimant is a politician. Take the typical case of the publication
by the tabloid press of the revelation that a leading politician is, or has
been, having an extra-marital affair, cheats when she plays golf,21 or is

19
Data protection laws are not discussed in detail, although they give individuals valuable
rights to regulate the processing of personal information and apply to the media as to other
data controllers. The first data protection principle in the UK Data Protection Act 1998,
Schedule 1, is that personal data must be processed fairly and lawfully, regard being paid
to the method by which they are obtained; in a media case, one factor would be whether
there has been intrusion on privacy or a breach of confidence. In Campbell v. MGN Ltd
[2003] QB 633, the Court of Appeal held that a journalist is entitled to exemption under
the Data Protection Act 1998, s. 32 from most of the requirements of the legislation if he
reasonably believes that publication is in the public interest.
20
See the leading decision of the German Constitutional Court in Soraya, 34 BVerfGE 269
(1973), where it was held that readers had no right to be informed about the former wife
of the Shah of Persia through fabricated interviews.
21
Apparently, President Clinton cheated at golf. See the references in Frederick Schauer, ‘Can
Public Figures have Private Lives?’ in Paul et al. (eds.), The Right to Privacy, above n.18,
pp. 293–309 at p. 300.
 privacy and freedom of speech 17

very ill. If she brings an action to protect her privacy, either her right to
privacy, or the public’s right to know and the press freedom to inform it
must be sacrificed.
In this situation the law may attempt to avoid a conflict between privacy
and free speech rights. Courts may deny that the latter cover the disclosure
of sensitive or intimate personal information, as freedom of expression
protects only serious political discussion objectively relevant to the assess-
ment of political candidates or to someone’s suitability for high judicial
office. That argument is difficult to sustain as a matter of principle. If
freedom of speech is prized because it allows everyone to participate in
uninhibited public discourse, there is at least a presumption that people
are free to discuss any attribute of an individual which the discussants con-
sider to be pertinent to her holding office. A majority of people may take
the view (which I share) that an individual’s sexual orientation or affairs
normally have nothing to do with her ability to hold public office; on
this perspective, a discussion of these aspects of a politician’s private life
falls outside freedom of speech. But commitment to freedom of speech
means that the majority cannot determine for the minority what mat-
ters are relevant to consider before voting at an election or engaging in
other political activity.22 Some people do consider it relevant to know
all about someone’s sexual life, or propensity to cheat at games, before
casting their vote. There is no good free speech argument for denying that
the press and other media have a right to give them that information,
any more than there is for distinguishing between valuable and worth-
less ideas when determining which communications are entitled to free
speech protection.
But equally, if privacy is to be taken seriously, it should cover a political
candidate’s right to keep some aspects of her most intimate personal life
away from public disclosure and consequent discussion. Otherwise her
right to privacy would be altogether lost. It is surely a fiction to argue
that politicians and other public figures waive or surrender their privacy
rights when they go into public life; there is no evidence that they do
this voluntarily. Indeed, it is likely that some people choose not to enter
public life, or leave it prematurely, because they do not want to run the
high risk that their private lives will be torn apart by incessant media
coverage. That risk weighed with Hunt J in a New South Wales libel case,
when he held that it was not in the public interest to publish allegations
that a former test cricketer had an extra-marital affair, since that had

22
Ibid. pp. 297–306.
18 eric barendt

no bearing on his public life.23 Moreover, we pay a heavy price if pri-

vacy does give way entirely to free speech in circumstances such as these.
The public may incur a loss, as may the individual who decides that she
cannot withstand scrutiny of her private life and must withdraw from
politics. Had the same climate in which today’s media compete to dis-
close ever more salacious details of the private lives of public figures also
existed in the past, it would be hard, for example, to believe that David
Lloyd George would have served as British Prime Minister in the First
World War when he was carrying on an affair with his secretary, or that
John Kennedy would ever have been elected as President of the United
States.
The inescapable conclusion, therefore, is that both free speech and pri-
vacy rights are implicated when the press or broadcasting media reveal
aspects about a politician’s or celebrity’s personal life. The rights must be
balanced within the context of the particular facts; otherwise the courts
would in effect sacrifice privacy or freedom of speech altogether in order
to safeguard the other right. Balancing is a familiar process in jurisdic-
tions where both rights are recognised, whether this is required under the
constitution or is governed solely by statute and case law. In Germany, for
example, the civil courts are required to assess carefully a range of relevant
factors when they weigh privacy (or reputation) rights against freedom
of expression.24 Among these factors are the means used to acquire the
information or take the photograph, whether the claimant had a reason-
able expectation of privacy at the particular time and place, and whether
the publication also involved the family and children of the politician or
public figure. It is also of course relevant whether the disclosure formed
part of a contribution to a discussion of politics or other matter of public
concern, or amounted merely to gossip.
These principles were applied by the German Constitutional Court
in its landmark ruling in the recent case involving Princess Caroline of
Monaco.25 It held the civil courts had failed to take account of the involve-
ment of the Princess’s family, when they refused to stop publication by
Bunte, a celebrity magazine, of photographs of the Princess with her chil-
dren. But the Constitutional Court rejected the argument that entertain-
ment and celebrity stories were not covered by the free speech and press
23
Chappell v. TCN Channel 9 (1998) 14 NSWLR 153 at 172.
24
The balancing principles were established in the early Lüth case, 7 BVerfGE 198 (1958), dis-
cussed in Eric Barendt, Freedom of Speech (2nd edn, Oxford: Oxford University Press, 2005)
p. 159.
25
101 BVerfGE 361 (1999).
 privacy and freedom of speech 19

clause of the German Basic Law.26 So the publication of photographs of

the Princess shopping, riding, or tripping while at a beach club was per-
mitted. Like the Court of Appeal in England,27 the Constitutional Court
accepted that celebrities can become role models and that there is a legit-
imate public interest in knowing details of their lives. A celebrity did not
have a veto on the publication of photographs showing her in public,
though she could stop them if they were taken while she was in a place
where she had a legitimate expectation of privacy, for example, her home
or the secluded part of a garden restaurant.
In a seminal ruling the European Court of Human Rights has now held
that the German decisions infringed Princess Caroline’s right to respect for
her private life.28 The crucial point for the court was that the tabloids had
published the photos to satisfy public curiosity about a celebrity who held
no public office and who did not exercise any official functions;29 it also
emphasised that the dissemination of personal photographs, in contrast to
ideas, may intrude significantly into private life.30 The German courts had
attached too much weight to the position of the Princess as a prominent
figure in contemporary society, and to the fact that the photographs were
taken while she was in public places. In effect, the European Court held
that the privacy of a public figure was infringed when her photograph
was published without consent, unless it was used to illustrate a story of
public importance or the person held a political or other public office.
The decisions in the Princess Caroline cases nicely illustrate how courts
may come to divergent assessments of the facts when privacy is balanced
against freedom of speech and the press. The assessment of the appropri-
ate weight to be attached to each factor will also vary from one culture
to another; moreover, it will change over time. Inevitably, there will be
disagreements, such as that between Kirby J and Callinan J in the High
Court of Australia in Lenah Game Meats whether it would have been right
on privacy grounds not to reveal the physical impairment from which
President Franklin Roosevelt suffered.31 Probably the general view now is
that it is legitimate for the media to publish details of a politician’s health,
26
Ibid. 389–91.
27
See A v. B plc [2003] QB 195 at para. 43 (footballers are role models for young people, and
undesirable conduct on their part sets a bad example. So there is a public interest in the
revelation of stories about a footballer’s casual extra-marital affairs).
28
Von Hannover v. Germany (2005) 40 EHRR 1.
29 30
Ibid. paras. 63–4. Ibid. para. 59.
31
Australian Broadcasting Corporation v. Lenah Game Meats (2001) 208 CLR 199 at para.
219 (Kirby J thought this restraint misconceived) and at para. 344 (Callinan J thought it
right).
20 eric barendt

at least when there is reason to believe that this may affect her ability to
discharge her duties; that was not the view in the US in the 1930s, nor
was it in Britain in the early 1950s, when Churchill’s increasing feeble-
ness was kept hidden from the general public. Similar changes are now
occurring with respect to discussion of a politician’s sexual orientation or
sexual conduct, though it is still not accepted, at least in England, that the
media can ‘out’ someone as gay or lesbian without that person’s consent.
While, therefore, an individual’s health and sexual life-style are covered by
the privacy right, the scope of protection against publications concerning
these aspects of personal life will vary considerably from case to case, and
different jurisdictions may reach divergent conclusions.
On the other side of the scales, it is surely reasonable to question whether
free speech and free press rights are entitled to the same weight against
claims brought by celebrities as they are against claims by politicians
in respect of similar disclosures. The English and US courts in privacy
(and defamation) actions generally treat different types of speech as of
equal value, irrespective whether the particular speech concerns a matter
of obvious political and social importance or only reveals the escapades
of footballers, pop stars, and other celebrities. Judges are understandably
chary of drawing distinctions between types of speech – political or enter-
tainment – either because they fear being considered elitist, or because
it is a fundamental principle of free speech jurisprudence that all types
of speech are equally valuable. There are of course dangers in drawing
lines or discriminating between more and less worthy speech. But such
distinctions have to be drawn, unless the privacy right is to be altogether
eviscerated. It makes sense to say that free political speech is of prime
importance and that, therefore, the media are entitled to report that a
minister is having an extra-marital affair and so trump her privacy right.
It makes much less sense to make this claim, when the claimant is a foot-
baller or film star. Celebrities are not elected, nor do they exercise political
power or claim moral leadership; the public does not have the same legit-
imate interest in knowing the truth about their character, as it does in
knowing the truth about the private life of a member of parliament, a
bishop, or perhaps a prominent businessman or newspaper editor. The
European Court of Human Rights was right to reject the argument that the
public is entitled to see photographs of someone like Princess Caroline,
merely because they find her life interesting. The ‘role model’ argument,
accepted by the Court of Appeal in A v. B plc,32 is flawed. The adoption

32
[2003] QB 195.
 privacy and freedom of speech 21

of, say, a footballer, film star, or Princess as a ‘role model’, whatever that
means, does not give the public a right to know everything about these
‘celebrities’, so compelling them to sacrifice their privacy on the altar of
idle curiosity.
Balancing between freedom of speech and privacy may be inevitable.
But its disadvantages should be admitted. First, assessment of the weight
of the relevant factors in particular cases is not an exact science. The
results of litigation will be unpredictable; individuals anxious to protect
their privacy and the media unsure whether a publication will attract a
privacy action are entitled to some degree of certainty. One reason why
the European Court found the approach of the German courts in the
Princess Caroline case inadequate was their adoption of the conception of
a ‘figure of contemporary society par excellence’ who must tolerate greater
invasions of privacy than other individuals; in the European Court’s view,
it was too imprecise to enable someone in the position of Princess Caroline
to know how to plan her life. Some legal precision can be attained by
setting out the relevant factors in legislation, rather than leaving them to
be determined by judges on the basis of the common law.33
Secondly, there is the question whether there is a presumption in favour
of one right or the other: is it for a privacy claimant to show that the
protection of her privacy right is so necessary that it trumps a presumption
in favour of free speech, or is it for the press to show that there is a real
public interest in the disclosure to outweigh what would otherwise be
a plain privacy infringement? It is doubtful whether there is any short
answer to this conundrum. Conceivably something might depend on
how the relevant law and constitutional provisions are drafted and how
the case arises. If the media in a European jurisdiction complain that
a privacy law has violated their rights under Article 10 of the ECHR
(the freedom of expression guarantee), the restriction imposed by the
privacy rules must be justified as necessary to limit the exercise of the
right to freedom of expression.34 Equally, an individual may complain, as
in the Princess Caroline litigation, that the state has failed to protect her
right under Article 8 of the Convention to have her private life respected;

33
The House of Commons Culture, Media and Sport Committee has recently recommended
for this reason that it would be better to introduce a privacy right by legislation, than leave
its development to the common law: UK House of Commons Culture, Media and Sport
Committee, Privacy and Media Intrusion, Fifth Report of Session 2002–03, HC 458-I at
paras. 99–111. The Data Protection Act 1998 (UK) affords a good precedent for detailed
legislation in this area.
34
ECHR, Art. 10(2).
22 eric barendt

then it would appear to be incumbent on the press to show why a limit

on her privacy rights was justified in order to protect its freedom to
disclose information and the right of the public to receive it. But it would
not make sense to adopt a different approach according to which party
was making the challenge. In the recent Campbell case speeches in the
House of Lords indicated that neither right was entitled to priority or
primacy over the other. Baroness Hale of Richmond was particularly clear
on this point; in principle, the rights were of ‘equal importance’.35 The
comparative weight or importance of the ‘actual rights being claimed in
the individual case’ must be assessed, and then the justifications for, and
proportionality of, the restrictions placed on them should be examined.36
The German Constitutional Court adopts a similar approach. In contrast,
the decision of the European Court in Princess Caroline perhaps indicates
a preference for what is sometimes referred to in the United States as
‘definitional’ or ‘rule balancing’, under which the courts formulate a clear
principle on the basis of which libel and privacy versus free speech cases
are determined.37 The rule in the Princess Caroline case is something like
this: irrespective of the particular circumstances, an applicant’s privacy is
violated when the media publish photographs of her without her consent,
unless the applicant is the holder of a public office or dissemination of the
photographs is an aspect of a publication of public interest. The advantage
of a rule such as this is its relative clarity and predictability, but it has the
disadvantage that it may not do justice to the facts of the case.
One final point should be made briefly before we examine the types of
case where privacy claims may support freedom of speech. Public disclo-
sure (and false light) cases in practice raise a conflict between privacy and
the rights of the press and other media, rather than between the former
and the right of an individual to exercise her free speech rights. The media
are of course entitled to the protection of the right to freedom of expres-
sion, largely because they provide citizens with information and provide
a forum for public discussion. Courts often assume, in privacy as in other
contexts, that there is no difference between free speech and free press
rights; if an individual is free to tell a story, then so is the press. In the
English footballer case, Lord Woolf CJ referred generally to freedom of the
press and the importance of a free press. He also said that if the girls with
whom the footballer had had casual affairs were free to tell their friends,
35 36
Campbell v. MGN Ltd [2004] 2 AC 457 at para. 140. Ibid. para. 141.
37
The classic example of rule balancing is the formulation by the US Supreme Court in New
York Times v. Sullivan, 376 US 254 (1964) of the rule under which public officials can only
succeed in a libel action, if they prove actual malice.
 privacy and freedom of speech 23

then they were also entitled to tell the press, with the implication that the
newspapers were then entitled to exercise their press rights.38 This argu-
ment is plausible, but certainly not incontrovertible. From the perspective
of privacy, disclosure to, and by, the press is much more damaging than
conversation between family and friends. Media gossip is quite different
in its impact from village gossip. Further, it is not clear that the press
should enjoy as wide a right to speak as do individuals. Newspapers and
broadcasters are not individuals, and do not have human rights. Their
potential for moral and spiritual development is not at issue if their pub-
lishing freedom is restricted, though of course their profits or even their
survival might be put at risk if the restraints are particularly onerous.39
I do not suggest that the argument for a free press and media is not a
strong one, or that it is not entitled to great weight in privacy as in other
civil and criminal proceedings. But press freedom is parasitic to some
extent on the underlying free speech rights and interests of readers and
listeners, and the role which the press and other media play in informing
them.40 It is not the same as a free speech argument, and that should be
borne in mind when we consider how much weight should be attached
to the freedom when it conflicts with the right to privacy which certainly
is a fundamental human right.

Privacy in support of free speech

In this part of the chapter, I consider a number of situations in which a
privacy claim or right seems to support freedom of speech, rather than
conflict with it. The claimant may argue that her privacy right has been
infringed, with the consequence that her own freedom to communicate
has been inhibited, or alternatively that the privacy claim strengthens a
challenge made primarily on free speech grounds. Equally, courts may
prefer to resolve a case on either free speech or on privacy grounds. For
example, the European Human Rights Court treats challenges to restric-
tions on the freedom of prisoners to communicate by post as falling under
38
A v. B plc [2003] QB 195 at para. 43 (iii) and (iv).
39
Ibid. para. 11 (xii), Lord Woolf CJ suggested that courts should not ignore the fact that
unless newspapers were free to publish material of interest to the public, they might not
survive. This is a novel view of the public interest argument. In contrast, the European
Court in the Princess Caroline case referred to the ‘commercial interest of magazines’ in
publishing the photos: Von Hannover v. Germany (2005) 40 EHRR 1 at [77].
40
For a fuller statement of this argument, see Judith Lichtenberg, ‘Foundations and Limits
of Freedom of the Press’ in Judith Lichtenberg (ed.), Democracy and the Mass Media
(Cambridge: Cambridge University Press, 1990) p. 102.
24 eric barendt

Article 8 of the ECHR (the guarantee of the right to respect for private
and family life, the home and correspondence) rather than under the
Article 10 guarantee of the right to freedom of expression. But these
niceties surely do not matter much. The point is that in some circum-
stances privacy and freedom of speech or communication go hand in
hand, rather than clash with each other. I will discuss these situations
under a number of headings; the list is not intended to be exhaustive and
there may be some overlap between these categories of case.

Confidentiality of communications
The confidentiality of communications is certainly an aspect of the right
to privacy. There is an infringement of the right whenever the security
services or the police use a bugging device to eavesdrop on a conversation,
tap a telephone, read email communications or monitor the use of the
internet. The interference may of course be justified under a law such
as the UK Regulation of Investigatory Powers Act 2000, but it is for the
authorities to show that a valid warrant has been issued or other conditions
for interception satisfied. But at the same time the interference also inhibits
the freedom of speech of the parties to the telephone call or the email
communication, although it is rare for this point to be taken. It is more
likely to be made where an employer monitors employees’ use of the
telephone or the internet; supervision of this kind is often considered an
unreasonable restraint on freedom of communication, unless there are
good grounds to suspect that a particular employee has abused it.
The point arose in Bartnicki v. Vopper,41 a recent US Supreme Court
decision on the clash between privacy and freedom of the press. Vopper,
a radio journalist, broadcast on his talk show a recording of an inter-
cepted mobile telephone conversation between two union officials in
which they discussed their negotiations with a local school board.
Vopper had obtained the tape from the head of a local taxpayers’ organisa-
tion which opposed the union’s demands. It was clear that the interception
and disclosure of the phone conversation violated a federal statute, the
US Electronic Communications Privacy Act of 1986 (as well as analo-
gous state laws). It amounted to a criminal offence, with civil as well as
criminal penalties. The question for the court was whether application of
the federal law to the broadcast violated Vopper’s free speech and press
rights. The majority held that it did, emphasising that the journalist had

41
532 US 514 (2001).
 privacy and freedom of speech 25

played no part in the illegal interception and that the broadcast revealed a
conversation of public concern – the attitude of the union officials to the
negotiations with the school board. Balancing free speech and privacy,
Stevens J for the six–three majority said that privacy concerns must give
way when weighed against the interest in publishing matters of public
concern. But Rehnquist CJ in dissent argued that the majority decision
‘diminishes, rather than enhances, the purposes of the First Amendment:
chilling the speech of the millions of Americans who rely upon electronic
technology to communicate each day’.42 The federal statute was not only
concerned to protect privacy, but to further the free speech rights of the
parties to telephone conversations. Moreover, the union negotiators did
not intend to contribute to public debate, but were engaged, so far as they
were concerned, in a purely private conversation, albeit about a matter of
public concern.
This case is important, because it shows that it is too simple to treat
breach of confidence cases as necessarily raising a straight conflict between
free speech on the one hand, and privacy (or confidentiality) on the other.
The issues may well be more complex than that. To allow the media to
publish an intercepted conversation, or other material such as a personal
diary, might lead overall to a loss of free speech. Of course, that loss
is conjectural, while the interference with Vopper’s First Amendment
rights would have been real, had the case been decided the other way.
Nonetheless, it is surely legitimate to take into account in assessing the
strength of a privacy (or confidentiality) claim that any infringement
of that right may also damage the exercise of individuals’ free speech
rights.
Similar issues arise in a different context. Journalists claim that they
are entitled to a privilege to keep the identity of their sources confiden-
tial, in order to encourage the sources to speak freely and so enable the
press to report stories of real public interest.43 The privilege protects the
anonymity or privacy of the source, and also her freedom to talk openly
to the press, and its freedom to pass on the story to the general public.
Privacy and freedom of expression go hand in hand, as they do when an
action for breach of confidence is brought to restrain private conversa-
tions between, say, spouses or partners. On the other hand, there may be
a conflict between the privacy and free speech rights of the source on the
42
Bartnicki v. Vopper, 532 US 514 at 554 (2001).
43
The privilege is recognised by English law in s. 10 of the Contempt of Court Act 1981. It
is also recognised by the European Court of Human Rights as an integral aspect of the
freedom of expression: Goodwin v. UK (1996) 22 EHRR 123.
26 eric barendt

one hand and freedom of the press on the other. This is brought out by
the case of Cohen v. Cowles Media Co.44 A newspaper decided to break
its promise of confidentiality to a source, because the editor considered
that disclosing the identity of the source, a consultant employed by the
Republicans, would strengthen the story he had given the paper about the
shop-lifting conviction of the Democrat candidate for state Lieutenant
Governor. The US Supreme Court held that the press did not have a First
Amendment immunity to the source’s action for breach of the confiden-
tiality promise. The source’s right to talk to the press on conditions of
anonymity was not trumped by its own First Amendment rights.

Possession of pornographic material

A second group of cases where privacy and free speech rights seem to
go hand in hand concern the right to possess and read pornography,
particularly at home, where it is clear that the possessor does not intend
to publish the material or distribute it to children. Two cases illustrate
this position. In Stanley v. Georgia45 the US Supreme Court reversed a
conviction for possessing obscene matter, three reels of pornographic film
found in the defendant’s home. Marshall J based the court’s opinion on
both the fundamental First Amendment right to receive information and
ideas and the right to be free from unwarranted intrusions on privacy. The
two were merged, when he emphasised that the defendant was claiming the
right to read or view what he pleased in the privacy of his own home. More
recently, the Supreme Court of Canada has examined the compatibility
of the offence of mere possession of child pornography (without intent to
distribute the material) with the Charter right to freedom of expression.46
The constitutionality of the offence was also challenged on the ground that
it violated the right to liberty, guaranteed by section 7 of the Charter, in
which privacy is implied. McLachlin J for the court did not think the latter
argument required separate consideration from that given the freedom
of expression challenge. However, in her view the privacy claim enhanced
the freedom of expression argument. Material held privately occasioned
less harm than published material, and privacy in this context was closely
linked to the freedom of conscience and belief which underlie freedom of
expression.47

44 45
501 US 663 (1991). 394 US 557 (1969).
46 47
R v. Sharpe [2001] 1 SCR 45. Ibid. 72.
 privacy and freedom of speech 27

Prisoners’ correspondence
As already mentioned, claims by prisoners that the interception or stop-
ping of their correspondence or telephone calls to legal advisers, relatives,
and friends violate their Convention rights are almost always considered
under Article 8 of the ECHR rather than under Article 10 guarantee-
ing freedom of expression.48 It would be wrong to infer that freedom of
expression is not implicated; it is rather that, in the European Human
Rights Court’s view, Article 8 with its explicit mention of the right to
respect for correspondence is the lex specialis, to which primary consid-
eration should be given. There is no need to consider other provisions
of the Convention. If, however, a prisoner complains that he has been
denied the right to read newspapers or to watch television, the case will
be considered under Article 10.49 (In a number of cases, the court has held
that any claim to an access right to information under the Convention
should be based on Article 8, rather than on Article 10;50 in this context,
the scope of freedom of information is cut down by its linkage to the right
to respect for private and family life, so that there are only access rights
to get hold of personal, rather than general policy, information.)

Anonymity and restriction on caller and connected line identification

In many circumstances a right to anonymity may be provided by statute,
or asserted at common law, in order to protect personal privacy. Many of
these circumstances arise in the context of litigation, of which perhaps the
best known examples are the anonymity accorded complainants of rape
and other sexual offences (though not adults accused of these or of other
offences) and children involved in legal proceedings, either as defendant
or as a witness. In these circumstances, privacy or anonymity conflicts
with the freedom of the media to report full details of legal proceedings.
In other circumstances, however, a right to anonymity may be upheld
as necessary to allow freedom of individual speech and communication.
Bans on the distribution of anonymous handbills and election campaign
literature have been held unconstitutional in the US for infringing free-
dom of speech;51 these bans also infringe privacy. Equally, a right on the

48
Silver v. UK (1983) 5 EHRR 347; McCallum v. UK (1991) 13 EHRR 597.
49
See Herczegfalvy v. Austria (1992) 15 EHRR 437.
50
Leander v. Sweden (1987) 9 EHRR 433; Gaskin v. UK (1988) 12 EHRR 36.
51
Talley v. California, 362 US 60 (1960); McIntyre v. Ohio Election Commission, 514 US 334
(1995).
28 eric barendt

part of adults to waive anonymity may also be upheld as an aspect of both

privacy or personality rights on the one hand and free speech on the other.
That is shown in a German case, where the Constitutional Court ruled
that the complainant, a woman of 41, was entitled to use her own name
and, therefore, by implication to name her father, when she made public
allegations that he had sexually abused her as a child.52 The court held that
the order of the state appeal court requiring her not to make these allega-
tions using his name or in her own name infringed her right to freedom
of expression. To use her own name would give greater authenticity to her
statements, and encourage other women to come forward. But equally, a
restriction on the use of one’s own name infringed an attribute of one’s
identity and personality. There was an infringement of both Article 2
(the right to free development of the personality) and Article 5 (right to
freedom of expression) of the Basic Law.
The phenomenon of Caller ID (Caller Identification) for telephone, and
now email communications, provides an important context for consider-
ation of anonymity and freedom of speech.53 Caller ID provides benefits
for any called person who is able by this means to trace nuisance callers,
but it is particularly valuable for delivery services who can ignore hoax
customers, and of course for telemarketers who can build up lists of cus-
tomers. On the other hand, it may inhibit the privacy and the exercise of
free speech of some callers, say, police informants, battered women, and
others using help-lines and support services. A European Union Directive
on the protection of privacy in the electronic communication sector takes
account of the interests of callers who wish to protect their anonymity
and those of the recipients of telephone communications who may want
to reject incoming calls when the caller has prevented Caller ID.54 A caller
must be given the possibility free of charge to prevent identification on
a per call basis, while a subscriber must have the opportunity to do this
for all calls on her line. Caller anonymity may be overridden when a sub-
scriber wants to trace malicious or nuisance calls, or to enable emergency
services such as the ambulance and fire services to respond to calls.55
Subscribers have a similar right not to be listed in telephone directories,

52
97 BVerfGE 391 (1998).
53
For a short discussion of this topic in an American context, see Judith Wagner DeCew, In
Pursuit of Privacy (Ithaca, New York: Cornell University Press, 1997) pp. 153–62.
54
Directive 2002/58/EC of 12 July 2002, above n. 11, Art. 8. It replaces an earlier Directive of
1997 which was confined in scope to telecommunications. (For implementation of these
provisions in UK law, see SI 2003/1246, regs. 10–19.)
55
Ibid. Art. 10.
 privacy and freedom of speech 29

or to withhold personal data, such as their sex or details of their address.56

The rules requiring communications systems to allow callers to prevent
Caller ID are surely sensible privacy protection rules. They can also be
defended in terms of encouraging use of the system and so promoting the
exercise of free speech, for some people would undoubtedly be deterred
from making calls if their identity were revealed to the recipient. Telecoms
companies, and business interests in the United States, have resisted the
introduction of these rules, but not, it seems, on the ground of any free
speech or other constitutional principle.57

Protection against spams and cold calling

The EU Directive, and UK regulations implementing it,58 also protect
users of communications systems against spams and cold calling. The use
of automated calling machines, fax machines or email for direct marketing
may only be allowed in respect of subscribers who have given their prior
consent, though for cold telephone calling member states have the choice
whether to require subscribers to opt in or enable them to opt out – in
either case free of charge.59 (The United Kingdom has chosen an opt-
out arrangement.)60 These regulations protect the attentional privacy of
telephone and email users, although arguably they restrict the freedom of
cold callers and the senders of spams to engage in commercial speech.
The issue has arisen in litigation in the United States. Following
protests from their subscribers, America On Line (AOL) and Compuserve
took steps to stop Cyber Promotions sending unsolicited email messages
(spams), unless the subscriber ticked a Box labelled, ‘I want junk email’.
In two cases, federal district courts have rejected the argument that Cyber
Promotions had a First Amendment right to send spams to AOL and Com-
puserve subscribers.61 The argument turned on familiar principles of US
free speech jurisprudence. Mail servers are not a public forum for speech,

56
Ibid. Art. 12. Rights not to be included in a directory, or to check and correct personal
data are to be free of charge.
57 58
See DeCew, In Pursuit of Privacy, above n. 53, pp. 157–8. SI 2003/2426, regs. 19–24.
59
Directive 2002/58/EC of 12 July 2002, above n. 11, Art. 13. There is a limited exception
to the opt-in requirement for automated calling machines etc., where a supplier obtains
from a customer her electronic contact details in the context of a sale. He can use these
details for direct marketing ‘of its own similar products or services’, though the customer
has a right to object to the use of these details.
60
SI 2003/2426, reg. 21.
61
Cyber Promotions v. AOL, 948 F Supp 436 (ED Pa., 1996); Compuserve Inc v. Cyber Promo-
tions, 962 F Supp 1015 (SD Ohio, 1997).
30 eric barendt

to be equated with streets and public parks. Internet service providers

are private actors, so they are fully entitled to determine who has access
to their communication systems. They are entitled to protect their own
property rights against the access claims of the email spammers. The real
beneficiaries of the litigation were the users of the electronic mail systems
who had pressured AOL and Compuserve to act. Moreover, in both cases
the court took the point that the viability of these communications sys-
tems might be put in danger if the claims of the spammers were upheld.
Limiting the spammers’ freedom would in the long term encourage use of
electronic communications for the exercise of free speech. In other words,
this is another situation where the privacy interests of the subscribers go
hand in hand with the overall promotion of free speech. Adopting similar
principles, a Circuit Court of Appeals has recently rejected a First Amend-
ment challenge brought by telemarketers to federal rules proscribing cold
commercial calls to telephone subscribers who had registered that they
did not wish to receive such calls.62 The privacy and, it may be argued,
the free speech interests of telephone subscribers were given more weight
than the commercial free speech rights of the telemarketers.

Conclusion
Privacy and freedom of speech do not always clash. Indeed, there are many
circumstances in which a claimant may assert both rights. This should not
be a matter of surprise. We have become accustomed to thinking that these
rights inevitably conflict. But we take this view, only because that is what
happens in the typical context in which we consider their relationship:
a claim by a public figure that her privacy has been infringed by press
reporting of some scandal or gossip. In an age when communication has
been dominated by the press and broadcasting media, we have lost sight of
the free speech interests and rights of individuals, or at least paid them less
attention. The cases of conflict, as I have said, almost invariably involve a
clash between individual privacy and press or media freedom.
However, when we look at free speech as the right of individuals to
express their ideas and to share views and information with others, then
we should adopt a different perspective. One value of privacy, and a rea-
son why it is recognised as a constitutional or legal right, is that it gives
individuals the space to develop their own identity by themselves, and

62
Mainstream Marketing v. Federal Trade Commission, 358 F 3d 1233 (10th Cir. 2004). On 5
October 2004, the Supreme Court declined to consider the case.
 privacy and freedom of speech 31

in communication and cooperation with friends and lovers, free from

observation and interference by Big Brother or even by a liberal demo-
cratic state.63 Some privacy is essential to enable us to read, contemplate
and formulate thoughts, and some confidentiality and security is sim-
ilarly necessary to exchange ideas with friends and colleagues. That at
any rate was the experience in the eighteenth century, when property
rights – we would now identify the rights as personal privacy interests –
were used to safeguard radicals against the arbitrary confiscation of their
manuscripts and papers.64 It is also important to note that privacy has
a social dimension. It is not concerned only to protect individuals act-
ing entirely in isolation from each other; rather, ‘[r]espect for private life
must also comprise to a certain degree the right to establish and develop
relationships with other human beings.’65
The internet and email communications make it possible for individ-
uals to communicate their ideas with each other without geographical
limit, and without use of the mass media. That is why this development
is potentially, some would say already, the most important media devel-
opment since the advent of the printing press. Whether in the context of
political speech, electronic communications will supplant, or only sup-
plement, the traditional newspaper and broadcasting media has yet to be
determined. But they will without doubt play an increasingly substantial
role in spreading new political causes and enabling groups to organise and
expand. In this context we should re-evaluate the relationship of personal
privacy and freedom of speech. While privacy rights and the interests of
the mass media may often conflict, the same is not always true of privacy
and the speech rights of individuals. Instead, some privacy protection is
necessary for them to exercise their speech rights free from anxiety and
inhibition.
63
For essays emphasising this aspect of privacy, see in particular James Rachels, ‘Why Privacy
is Important’ (1975) 4 Philosophy and Public Affairs 323 and Jeffrey H. Reiman, ‘Privacy,
Intimacy, and Personhood’ (1976) 6 Philosophy and Public Affairs 26.
64
Wilkes v. Wood (1763) 19 State Trials 1193; Entick v. Carrington (1765) 19 State Trials 1030.
65
The European Court of Human Rights in Niemietz v. Germany (1993) 16 EHRR 97 at
para. 29.
 3

Revisiting the American action for public

disclosure of private facts
brian c. murchison

The 1981 American film Absence of Malice, although lopsided against the
press in its account of journalism gone bad, contains one indelible scene.
In a Miami neighbourhood’s early morning hours, a tense young woman
sits on a front porch, waiting for the newspaper boy. Soon enough, he
pedals up the street and tosses papers on all the identical yards, finally
reaching hers. She anxiously pulls the paper from its plastic bag and
clumsily unfolds it. The story is on page one. We don’t see what it says,
but we know. It reports that she, a Catholic secretary in a parochial school,
had an abortion the previous year, and that on the day of the abortion,
she was accompanied by a man who is suspected of killing a union leader
on the same day. Her story is news; she could be the suspect’s alibi. She
slowly refolds the paper and forces it back in its container. She then runs
in despair to all the other yards, gathering each paper: her world must not
learn about the abortion. Of course, her efforts are futile.
The irony of the scene is compelling. Although American constitutional
law strongly protects individuals from the state’s usurpation of highly
intimate decisions – relating to such things as contraception, abortion,
and sexual conduct1 – the common law is famously tentative in shielding
individuals from privacy invasions by the press, even about the same
matters.2 To be sure, the Restatement (Second) of Torts provides that when

I wish to thank Dean David Partlett and Professors Blake Morant and Megan Richardson
for their helpful comments; Christopher Vrettos for invaluable research assistance; and the
Frances Lewis Law Center for supporting the project.
1
For a review of the contraception and abortion cases, see Ellen Alderman and Caroline
Kennedy, The Right to Privacy (New York: Alfred A. Knopf, 1995) pp. 55–66. At the end
of its 2003 term, the Supreme Court struck down on due process grounds a state law
criminalising homosexual sodomy, Lawrence v. Texas, 539 US 558 (2003).
2
See generally Diane L. Zimmerman, ‘Requiem for a Heavyweight: A Farewell to Warren
and Brandeis’s Privacy Tort’ (1983) 68 Cornell Law Review 291.

32
 revisiting the american public disclosure action 33

one party publicises private facts about another, and disclosure would
be highly offensive to a reasonable person and is unrelated to a matter
of legitimate public concern, the subject of the disclosure has a cause
of action for damages.3 However, in such suits for ‘public disclosure of
private facts’, plaintiffs often fail to establish that the disclosure lacked
relevance to a matter of ‘public concern’.4 If the young woman in Absence
of Malice had sued for public disclosure, she likely would have lost, perhaps
not even reaching a jury.5
Consider a recent example. In Shulman v. Group W Productions Inc.,6
a car ran off a highway and overturned. The plaintiffs, a mother and son,
were trapped inside. A rescue team arrived, including a nurse who wore
a wireless microphone provided by a television producer. The producer’s
cameraman was also at the site. Unknown to the victims, the nurse and
cameraman recorded their condition after the crash, their removal from
the car, the mother’s expressions of ‘disorientation and despair’,7 and her
agony inside a rescue helicopter. Months later, a television station aired
a programme on emergency medicine, including footage obtained that
night, and the mother watched in disbelief from her hospital bed. In her
action for public disclosure of private facts, she protested the ‘gruesome’
footage and testified that ‘it’s not for the public to see this trauma that
I was going through’.8 The television station defended on the ground
that footage of the mother’s appearance and speech during the rescue
operation were ‘substantially relevant’ to a matter of public concern.9
The California Supreme Court agreed, finding a public matter in the
accident itself and ‘the rescue and medical treatment of accident victims’.
3
Restatement (Second) of Torts (St Paul, Minn.: American Law Institute, 1977) s. 625D.
Building on a classic article, Samuel D. Warren and Louis D. Brandeis, ‘The Right to Privacy’
(1890) 4 Harvard Law Review 193, William Prosser identified ‘a complex of four’ causes of
action relating to invasion of privacy, see W. Page Keeton (ed.), Prosser and Keeton on Torts
(5th edn, St Paul, Minn.: West, 1984) p. 851. The public disclosure tort has been called the
‘quintessential cause of action for invasion of privacy’: Rodney A. Smolla, ‘Accounting for
the Slow Growth of American Privacy Law’ (2002) 27 Nova Law Review 289 at 296.
4
Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems (3rd edn, New York:
Practising Law Institute, 1999), paras. 12–42 and 12–54 (noting difficulty of establishing
lack of ‘newsworthiness’).
5
The character’s situation in the film is complicated by the fact that she herself gave the
information about the abortion to a reporter, albeit without grasping that she was (in the
reporter’s words) ‘talking to a newspaper’ and therefore speaking ‘on the record’. How-
ever, even if the reporter independently had discovered the private fact, a suit for ‘public
disclosure’ would fail if a reasonable editor could conclude that the fact was substantially
relevant to a newsworthy topic: Gilbert v. Medical Economics Co., 665 F 2d 305 at 309 (10th
Cir. 1981).
6 7 8 9
955 P 2d 469 (Cal. 1998). Ibid. 488. Ibid. 476. Ibid. 488.
34 brian c. murchison

Because the specific footage of the mother showed the challenge faced by
emergency workers, it was ‘substantially relevant’ to the general topic and
had ‘legitimate descriptive and narrative impact’.10
The plaintiffs in Shulman join a long list of others who have lost public
disclosure claims: a one-time child prodigy, famous in youth but reclusive
as an adult, whose odyssey became the subject of a ‘merciless . . . dissection’
by James Thurber in the New Yorker magazine;11 a man who deflected an
attempt on the life of an American President in 1975, and then became
the subject of unwanted news accounts identifying him as homosexual;12
a young adult who was sterilised against her will in a county home for
troubled youths and then found her sterilisation reported in a newspaper’s
account of the home’s practices;13 a rape-murder victim’s father, who
sued after a television station found the victim’s name in court papers and
broadcast it over the air;14 a rape victim whose family received anonymous
threatening phone calls, possibly from her attacker, after a newspaper
published her name;15 an adoptive mother and her daughter, who sued
a newspaper for printing details of the child’s history and the conflict
caused by the birth mother’s sudden reappearance.16 In each case, courts
held that the disclosures were privileged.
Plaintiffs who fared better in the courts included a college student body
president who sued a newspaper for disclosing that she was a transsexual,17
a mother who sued a newspaper for publishing words she spoke over her
dead son’s body in a private hospital room,18 and a celebrity couple who
challenged the internet distribution of a videotape depicting their sexual
activities.19

10
Ibid. 488–9.
11
Sidis v. F-R Publishing Corporation, 113 F 2d 806 at 807 (2nd Cir.), cert. denied, 311 US 711
(1940). See Rosenbloom v. Metromedia Inc., 403 US 29 at 80 (1971) (Marshall J dissenting,
noting that although the former prodigy ‘had a passion for obscurity’, disclosure of his
‘somewhat peculiar behavior . . . was found to involve a matter of public concern’).
12
Sipple v. Chronicle Publishing Co., 201 Cal. Rptr 665 (1984).
13
Howard v. Des Moines Register & Tribune Co., 283 NW 2d 289 (Iowa 1979).
14
Cox Broadcasting Corp. v. Cohn, 420 US 469 (1975).
15 16
The Florida Star v. BJF, 491 US 524 (1989). Hall v. Post, 372 SE 2d 711 (NC 1988).
17
Diaz v. Oakland Tribune Inc., 188 Cal. Rptr 762 (App. 1983) (rejecting press argument that
student leader’s gender was newsworthy as a matter of law).
18
Green v. Chicago Tribune Co., 675 NE 2d 249 at 256 (App. Ct Ill. 1996) (holding that a jury
could find that the public ‘has no concern with the statements a grieving mother makes
to her dead son’).
19
Michaels v. Internet Entertainment Group Inc., 5 F Supp. 2d 823 at 842 (CD Cal. 1998)
(holding that plaintiffs demonstrated a likelihood of success in meeting the burden of
showing that contents of tape were not newsworthy). In a related case, the court held that
 revisiting the american public disclosure action 35

Although some commentators have proclaimed the death of the public

disclosure tort,20 the action has stubbornly survived, as if determined to
outlast the courts’ apparent confusion about the interest at stake and the
proper means of addressing that interest without subverting hallowed
rights of expression.21 This chapter’s thesis is that the public disclosure
tort cannot be understood apart from the Supreme Court’s development
of another tort – the common-law action for libel – in the years just before
the court’s first public disclosure case. At the heart of libel jurisprudence
was a concern for the dignity of citizens and publishers in speaking out
on public issues. Protecting the value of equal democratic participation,
the court energetically developed an elaborate matrix of libel doctrine.
However, as the privacy tort came before the court in the mid-1970s, its
own core proved comparatively elusive, and the court lacked theoretical
fuel for doctrinal development. After comparing the court’s extensive
cultivation of one doctrinal field with its spare treatment of another, the
chapter proposes a basis for a revitalised, if still narrow, public disclosure
tort, drawing in particular on the court’s recent decision in Bartnicki
v. Vopper,22 and the insights of several contemporary thinkers on the
indispensable role of privacy in the development of self.

What’s wrong with the public disclosure tort?

Commentators offer various explanations of the public disclosure tort’s
doctrinal thinness and uncertain reach. One account cites American cul-
ture’s pervasive acquiescence in privacy invasion. A second emphasises the

a tabloid television programme’s story on the videotape, including brief excerpts from the
tape itself, was newsworthy as a matter of law: Michaels v. Internet Entertainment Group
Inc., 27 Med L Rep 1097 at 1104–5 (CD Cal. 1998).
20
E.g., Zimmerman, ‘Requiem for a Heavyweight’, above n. 2, 365 (arguing that the public
disclosure tort addresses a problem ‘incapable of resolution in the courts’ and therefore
should be given ‘a well-deserved rest’). However, the opinions of five justices in Bartnicki
v. Vopper, 532 US 514 (2001), appear to ‘endorse the principal ingredients’ of the public
disclosure tort: Rodney A. Smolla, ‘Information as Contraband: The First Amendment
and Liability for Trafficking in Speech’ (2002) 96 Northwestern University Law Review 1099
at 1150.
21
New York Times columnist Anthony Lewis suggests that ‘it is not inconsistent with the great
function of the press in keeping power accountable to have some concern for the feelings
of those who have not sought power, for [the ex-prodigy profiled in the New Yorker] or
[the crash victim recorded by the rescue nurse], for example’: Anthony Lewis, ‘Privacy
and Civilization’ (2002) 27 Nova Law Review 225 at 238. Lewis concludes that the privacy
of private individuals ‘is an essential component of a civilized life’, at 242.
22
532 US 514 (2001).
36 brian c. murchison

reluctance of the narrower United States legal culture to accept responsi-

bility for fashioning doctrine for the protection of privacy. A third expla-
nation underscores the supposedly elusive nature of the privacy interest
itself.
An example of the first account is David A. Anderson’s suggestion
that American citizens are two-faced about privacy: they claim to respect
it ‘but in fact [they] devour the private secrets of hundreds of people
everyday’.23 Anderson concedes that the culture values privacy, but he
maintains that Americans simultaneously ‘hunger to know – to know
the shocking details of scandal, to see the drama of terror or grief or
humiliation, to understand the strangeness of our neighbors. The law
merely reflects our ambivalence.’24 He notes that journalism schools stress
that ‘news is about people’, and that the media’s inclination to personify
both breaking news and long-term social analysis is accepted by a populace
whose ‘curiosity’ about private facts is insatiable.25 Rodney A. Smolla
similarly traces the weakness of legal privacy to Americans’ penchant for
gossip.26 Given the culture’s disregard of privacy, Smolla is unsurprised
that invasion of privacy has small stature in tort law.
These arguments from sociology are intriguing but not altogether per-
suasive. American ‘hunger’ for details of scandal and public drama does
not necessarily indicate approval of, or even ambivalence about, the sorts
of revelations that prompt most public disclosure suits. Those revelations
usually appear in local news or feature stories about individuals who have
not consented to coverage and whose circumstances strongly suggest that
media exposure will cause them harm. It is not at all self-evident that
the curiosity of even American television audiences extends to the hidden
plights of involuntary news figures such as car crash survivors, adoptive
children, or rape victims. As for the argument that a culture of gossip
signals a general disrespect for privacy, it is worth noting that everyday
gossip is a far cry from the ‘publicity’ addressed by the public disclosure
tort.27 Moreover, since the impact of gossip is usually quite different from
that of media publicity, participation in gossip is at best slim evidence of
acquiescence in media dissemination of private facts. Gossipers chatter
with others about a third party; the insult to the third party is usually
23
David A. Anderson, ‘The Failure of American Privacy Law’ in Basil S. Markesinis (ed.),
Protecting Privacy (Oxford: Oxford University Press, 1999) p. 141.
24 25 26
Ibid. Ibid. p. 142. Smolla, ‘American Privacy Law’, above n. 3, 305.
27
See Restatement (Second) of Torts s. 652D (distinguishing speech to ‘a single person or
even . . . a small group of persons’ from ‘publicity’ required by the tort, and defining
publicity as that which makes a matter ‘public, by communicating it to the public at large,
or to so many persons that the matter must be regarded as substantially certain to become
one of public knowledge’).
 revisiting the american public disclosure action 37

indirect.28 In contrast, when a news outlet transmits a person’s intimate

facts to the public, the audience may well include the person in ques-
tion. As the plaintiff in Shulman surely discovered as she watched her
own suffering on television, the impact of a media outlet’s invasion of
privacy is direct. For these reasons, it is difficult to attribute the weakness
of the privacy tort to widespread cultural acceptance of, or participation
in, similarly invasive behaviour or speech.
Another explanation for the weakness of the tort relates to the country’s
legal culture. Anderson posits that judges are ‘extremely reluctant
to decide what is private’ because they think that society is too diverse to
produce common norms of privacy. He adds that judges are ‘unwilling to
decide what matters are of legitimate public concern’ because they have
no desire to second-guess editors and risk violating liberties of speech
and press.29 Similarly, Smolla cites the legal culture’s ‘ingrained skepti-
cism’ about penalising truthful publications, even if the published facts
were private, and the judiciary’s reluctance to overrule editorial choices.30
This account has more power than the first but still falls short. If the
legal culture is reluctant to impose damages on accurate yet invasive
publications, it has had the opportunity to declare a categorical privi-
lege for truthful publications since at least 1975.31 However, the Supreme
Court has deliberately declined to take that course, and only a handful of
states have rejected the public disclosure tort.32 As for the intractability of
issues relating to ‘matters of public concern’, such issues arise in libel cases
fairly frequently without inhibiting judges. Similar questions concerning
whether a plaintiff has voluntarily injected him or herself into a ‘public
controversy’ are not considered beyond judicial capacity.33 In deference

28
See Sissela Bok, Secrets: On the Ethics of Concealment and Revelation (New York: Pantheon,
1982) p. 91 (defining gossip as ‘informal personal communication about other people
who are absent or treated as absent’).
29
Anderson, ‘The Failure of American Privacy Law’, above n. 23, 148–51.
30
Smolla, ‘American Privacy Law’, above n. 3, 304.
31
See Cox Broadcasting Corp. v. Cohn, 420 US 469 at 491 (1975) (recounting press argument
for broad holding on truthful publications).
32
Jonathan B. Mintz, ‘The Remains of Privacy’s Disclosure Tort: An Exploration of the
Private Domain’ (1996) 55 Maryland Law Review 425 at 432–3 n. 37 (citing West Virginia,
New York, Minnesota, Nebraska, and North Carolina as jurisdictions that do not recognise
the tort).
33
See, e.g., Dun & Bradstreet Inc. v. Greenmoss Builders Inc., 472 US 749 at 761–3 (1985)
(discussing whether a credit report involved a ‘matter of public concern’); Waldbaum v.
Fairchild Publications Inc., 627 F 2d 1287 at 1296 (DC Cir. 1980) (discussing whether a
libel plaintiff had injected himself into a pre-existing ‘public controversy’, thereby meeting
one of the requirements of a limited-purpose public figure); Lohrenz v. Donnelly, 350 F 3d
1272 (DC Cir. 2003) (finding that female combat pilot is a limited-purpose public figure).
38 brian c. murchison

to the First Amendment, judges may choose to favour speech interests

in privacy cases,34 but their readiness to decide a variety of similar issues
in libel suits shows that legal resources are not lacking for the field of
privacy.35
A third, more convincing analysis is that the privacy tort falters because
the Supreme Court has failed to articulate a clear concept of privacy in this
context, leaving lower courts in considerable doubt about the value of vig-
ilant protection.36 Courts clearly exhibit surer grasp of the countervailing
interest – democratic society’s dependence on open communication on
public matters, even intimate matters touching on public issues – than of a
plaintiff ’s need to withhold private facts from the public eye. Judicial pro-
nouncements on privacy in the media context range from the unhelpfully
broad, such as Justice Potter Stewart’s declaration that ‘the protection
of private personality’ is ‘a basic of our constitutional system’,37 to the
impossibly narrow, such as Judge Richard Posner’s emphasis on the pri-
vacy of basic bodily functions.38 Within these extremes, a few courts have
been willing to intimate that privacy’s basis is negative liberty,39 or pos-
itive liberty,40 but none has voiced anything resembling Justice Anthony
Kennedy’s account of the components of self-determination in the con-
stitutional cases.41

34
See, e.g., Hall v. Post, 372 SE 2d 711 at 721 (NC 1988) (Frye J concurring) (noting that
‘the legitimate concerns to the public must be defined in the most liberal and far-reaching
terms in order to avoid any chilling effect on the constitutional right of the media to
publish information on public interest’).
35
See Smolla, ‘American Privacy Law’, above n. 3, 300 (arguing that ‘basic legal standards
which have evolved’ with respect to the category of ‘public controversy’ in libel law ‘are
coherent and functional’).
36
For an interesting survey of the multiple interpretations of privacy in American legal
thought, see Jonathan Kahn, ‘Privacy as a Legal Principle of Identity Maintenance’ (2003)
33 Seton Hall Law Review 371.
37
Rosenblatt v. Baer, 383 US 75 at 92 (1966) (Stewart J concurring).
38
Haynes v. Alfred A. Knopf, Inc., 8 F 3d 1222 at 1229 (7th Cir. 1993).
39
E.g., Hall v. Post, 355 SE 2d 819 at 824–6 (NC App. 1987) (characterising plaintiff ’s interest
as the ‘right to have others not know’, and ‘the individual’s right to be free from unwarranted
exposure’), reversed on other grounds, 372 SE 2d 711 (NC 1988) (declining to recognise
public disclosure tort in North Carolina).
40
E.g., Beaumont v. Brown, 257 NW 2d 522 at 527 (Mich. 1977) (noting that ‘[i]n this ever
advancing society all are concerned that the individual’s integrity and independence are
not obliterated by the dissemination of unnecessary information about his private life’).
41
E.g., Lawrence v. Texas, 539 US 558 at 562 (2003) (stating that ‘[l]iberty presumes an
autonomy of self that includes freedom of thought, belief, expression, and certain intimate
conduct’, and that respect for ‘the dignity of free persons’ counsels against state attempts
‘to define the meaning of [a voluntary personal] relationship or to set its boundaries absent
injury to a person or abuse of an institution the law protects’). Lawrence also cited a famous
Another random document with
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 Contending tempests on his naked head,
And thus reward the toils which to these summits led.
We left a card in a bottle at the top, where none had been this
year before us. Descending a steep snow edge to come to visiting
terms with the Nadelhorn—a peak of steep but easy rocks with some
gendarmerie—my leading guide loosened a big stone at the top,
which narrowly missed me and dropped on the man below, hitting
on the steel of his axe, but he held firm, and this was the only
escape I was aware of. We came down into a snow storm and thick
mist, but got safely home after fifteen hours’ climbing, then a light
dinner with a glass of champagne, and so to bed.
From Fée I walked with a strong man who wanted to stretch his
legs to climb the Laquinhorn. It is a long way there and back, but
not a great climb; we returned by the chapels, after a roasting day
in the sun. My companion had bargained with me over night that he
was to be allowed to stop and feed every four hours. He did so, and
ate up everything, even the cheese; the guides then hurried us
home lest they themselves should be eaten too! Alas! there will be
no more such pleasant walks. Eyre was killed on the Sparrenhorn,
1895. Later on, again I went to Zermatt, slept at the Trift Inn, and
climbed the Rothhorn. I greatly wished to go down from the summit
to Zinal and back by the Trift Pass next day, but my guides would
not permit the descent to the Constantia Hut, and no doubt they
were right. How do these men, Xaver Imseng and Alois
Kalbermatten, win my regard? Xaver has an angel face, and Alois a
form like Hercules. It is not only their courage, skill, and devotion to
duty, but their sympathy with my delights or difficulties—this is the
great charm.
One night only at Zermatt and then up at 4.30 to catch the six
o’clock train from Zermatt to Visp in the Rhone Valley. This is the
new line which many climbers believe will disturb the happy hunting-
grounds. The journey was very pleasant; being allowed to stand
outside, and the train moving slowly, I enjoyed the scenery and
chatted with one of the few men who this year climbed the
Matterhorn.
 Four hours’ walk above Brieg in a blazing sun on one of the
hottest days known, ended in a storm of rain which wet me through;
it delayed me in a forest where I had the luck to see a fine fox at
close quarters; we watched each other quietly for some minutes. I
found my wife and friends at Rieder Furka and walked with them up
and down a baby mountain called the Riederhorn; then later, with an
active fellow made the ascent and back to the hotel in twenty-two
minutes, just to dry my clothes.
The hotel is well placed above the Great Aletsch Glacier, upon
which delightful expeditions are made, especially to the Märjelen
See, a wonderful ice-bound lake with icebergs in it, which has before
now threatened Brieg with a flood from the sudden bursting of its
waters upon the valley far below.
Home again by Geneva, I visited the Cantonal Hospital there,
which is well built and planned; but in the summer the building is
empty and clean, the patients being in open-air barracks, timber-
built with canvas sides. Would that our English climate would allow
of the like. On the other side of the city, at the Rothschild’s Eye
Hospital, there seemed every comfort, but few patients to be
treated.
The sight of England again always cheers us, with homely
peaceful scenes; well may we say in travelling through the Kentish
hop fields:
“Let Frenchmen boast their straggling vine,
Which gives them draughts of meagre wine,
It cannot match this plant of mine
When autumn skies are blue.”

NOTE
The Birrenhorn by the south face. This good climb, which has probably not
before been done by travellers, is said to be a hunter’s way.—Alpine Journal, Nov.
1895, p. 600.
 To climb the Birrenhorn (2,511 metres) by the south face, go from
Kandersteg up the nearest and steepest grass slopes which lie to the
E.N.E. of the Victoria Hotel, to a couloir which is found by following
the highest shingle. Here it is well to rope in order to ascend the
couloir to a chimney. Climb through this to a shelf above, and
turning slightly to the W. continue straight up until a narrow
horizontal shelf is reached running to the W.S.W. as far as some little
pine trees; thence ascend by going up the face more to the E., until
after a stiff scramble up twelve feet of difficult rock (which may be
avoided by a circuit) a cleft is found in which lies an enormous
grass-covered fallen block. Beneath this you crawl through a
“Fenster,” and soon reach a narrow grass saddle with views into the
two valleys (Kander and Oeschinen). The final climb is then before
you. Cross the grass saddle, ascend the rocks or grass slopes
beneath which the shepherd’s path is seen. The rock arête above the
highest grass has a cairn and pole on the summit, reached in four
and a half hours from Kandersteg. In descending the path towards
the Oeschinen See, the way down to the valley is difficult to find,
especially if there be any mist. The three-fingered rock (Drei
Eidgenossen) will be seen opposite the couloir, which is the last but
one before reaching a great grass promontory. After a considerable
descent a traverse is made to the right, where two iron stanchions
guard an awkward place.
 The Climbing Foot
It has often been noticed in mountaineering that a guide can go
face forward and whole-footed up a slope, while the amateur
following, and coming to the steep part, cannot plant his whole foot
upon the slope, but has to go on his toes or else turn sideways.
The difficulty with the young climber seems to be to get his heel
down, and he learns to look out for little humps or embedded stones
on which he may place his heel.
Then if his calf muscles permit his foot to be correctly planted
down, this interferes with his upward step, giving him discomfort at
the back of the leg, experience very slowly enabling him to walk with
the pelvic roll characteristic of the guide’s uphill gait.
It is worth noting here that rowing men in using sliding seats
cannot always keep the heel down on to the stretcher at the
beginning of their stroke.
It seems possible, and many climbers must have considered it so,
that the angle made by the foot with the leg may be more acute in
the guide who has climbed from childhood, and that in the case of
the guide’s feet there may be some structural difference, both
hereditary and acquired, actually permitting more freedom of
movement at the ankle-joint, which neither muscular action nor
power of balance could ever give to the amateur.
The guides wear their thick leather boots loosely laced at the top
during an upward climb; so that it is difficult to judge of the play of
the ankle: but last year I was fortunate in falling in with Captain
Abney, who kindly photographed for me the naked feet of my guides
in the act of climbing a rock, and in other positions for purposes of
comparison.
 So leaving out of the question all lateral movements at the ankle-
joint as difficult and complicated to estimate, we will briefly consider
the question of the ordinary angle that the foot makes with the leg
so far as it is less than a right angle, and whether the trained guide
has any advantage over the amateur in this respect.

FOOT OF AN INFANT FIVE WEEKS OLD, SHOWING THE INSTEP TOUCHING THE
SHIN ON SLIGHT PRESSURE OF THE FINGER.
The adaptation of the foot for progression on all fours. The baby is wrapped in a
napkin and black velvet, and held by a nurse.
To begin with the foot of an infant, we notice that the foot, like
the hand, is all adapted for climbing. Dr. Louis Robinson has shown
that the infant’s hand-grip is so strong, that the whole weight of its
body can be borne by the prehensile power of the hand. The miner
in Bret Harte’s The Luck of Roaring Camp realized this strength of
grip when he said after an experience with a cradled infant, “He
wrastled with my finger, the d——d little cuss!”
The following photographs show how the child’s foot can be made
by a touch of the forefinger to approximate the instep to the leg
until there is actual contact. The toes curl round to take a great grip
of the object pressing against the sole, and generally speaking there
is the most wonderful adaptation both for climbing and for
progression on all fours.
The infant chosen for the first photograph was rather an unusually
thin baby, but it had a fair amount of vitality, and illustrates better
than a chubby child the points which it is necessary to bring out. If,
with tracing paper placed over the picture, a pencil line be drawn
along the bearing surface of the sole of the foot, and another along
the leg to meet the former line below the heel, the angle made by
these two lines will measure about twenty degrees.

FOOT OF AN INFANT FIVE WEEKS OLD TOUCHED WITH THE FINGER TO SHOW
THE ANGLE OF THE FOOT WITH THE LEG AND THE PREHENSILE TOES.
The baby is wrapped up in a napkin and black velvet, and held by a nurse.
Some may claim that this wonderful function in the infantile foot is
a remnant of its former arboreal existence. “Hush-a-bye baby on the
tree top” is evidence on this point also according to other most
learned people. This remarkable function of the infantile ankle-joint
is probably an evidence of our origin, and if we have really
descended from apes we should rather be proud of our present
position than ashamed of our ancestry. We may well suppose that in
the pre-natal state, the child was continually occupied in climbing
the walls of its narrow prison, like an infantile Sisyphus, and the
flexibility of the ankle-joint was an advantage for the maternal
structures.

FOOT OF AN INFANT FIVE WEEKS OLD. THE INSTEP IS MADE TO TOUCH THE
SHIN BY SLIGHT PRESSURE OF THE FINGER.
The foot is adapted for climbing and progression on all fours. The baby is wrapped
in a napkin and black velvet, and held by a nurse.
In the very tiny infant then of a few weeks old, nothing stops the
foot from making the most acute angle with the leg except contact.
The child a year or so old has lost some of this freedom, and begins
to be adapted for the upright position; later on will begin to “feel its
feet,” as the nurses say, and soon to rear itself upon its hind-limbs.
The infant’s foot is plantigrade, and gradually during growth
becomes adapted for the erect posture, and loses freedom of
movement as it gains in strength.
 FOOT OF AN INFANT NEARLY A YEAR OLD.
On pressure with the finger the angle of the foot with the leg is less acute and
more adapted for the erect posture.
In the adult, in order to measure the angle required, it is
necessary to get the long axis of the leg and the long axis of the
foot, and then take the angle both when the foot is pressed upon
and also when no pressure is permitted. To obtain this angle
shadows may be tried; photographs are good, from which diagrams
may be made with tracing paper and pencil; also mechanical plans,
such as placing the back of the leg on a plane surface (as a table)
allowing for the calf by a block behind the ankle, and then pressing a
thin board against the sole of the foot, measuring with a suitable
instrument the angle the board makes with the table at moments of
extreme position, both with pressure and without. With the sole of
the foot on the floor, and the heel well down when the leg is carried
forward to the extreme position, the angle that the leg makes with
the floor will indicate sufficiently, much as is shown in the picture of
sitting down using only one limb. Whatever method is used the
result is only approximate, but they will all agree, and are sufficient
for our purpose. The measurements made when the feet are
pressed gives alike in the Swiss guides and in the adult amateur an
angle of about 60 degrees; without pressure the angle is nearer 70
degrees, and I measured two rowing men who could get no more
acute angle than 70 degrees under any conditions. Always
remembering that there is a fairly considerable “personal equation,”
we may conclude that if there be any difference between guides and
amateurs it will not be enough at any rate to explain more than a
trifling part of the superiority of the guides in walking up a slope.
The height of the boot heel may be taken to be the same in all
mountain boots, but the guides tend to wear heels rather high.

FOOT OF AN INFANT NEARLY A YEAR OLD.

Already the angle of the foot with the leg is less acute and more adapted for the
erect posture. The child is wrapped up by a nurse in a black velvet covering.
At Zermatt, on a sunny afternoon, Alois Kalbermatten and Peter
Perren were good enough to allow me to pose them with their bare
feet on a well-known rock, appropriately named the Shoehorn, while
Captain Abney made admirable photographs, from which the
reproductions accompanying this chapter were selected.
 The guides laughed like schoolboys over the business, or over my
solemnity at a scientific experiment. The photographs show very well
the climbing position of the foot, and, if a comparison be made of an
amateur’s foot, it does not appear that the angle made by the foot
with the leg is more acute in the case of the guide. Even with
Röntgen’s rays I do not think that any structural difference in the
bones of the foot would be discovered.
In the case of the infant, so much of the bones of the foot is in
the cartilaginous stage that nothing of the configuration could be
studied with these searching rays, because cartilage shows so little
shadow.
The foot then of the infant can be flexed until it is almost parallel
with the leg; during growth it loses flexibility as it gains in strength
and becomes adapted for the erect position and for walking, which is
the natural gait of man. The angle made by the foot with the leg in
adults is fairly fixed, and a difference between guides and amateurs
in this respect is not easy to discover.
Nevertheless, there may be more power on the part of the
experienced to keep a straight knee under the conditions of a flexed
foot, and as the straight position is the strong position of the knee,
the guides may well have an advantage there.
Mr. Clinton Dent has so ably described the mechanism of the uphill
walk in the Badminton book on mountaineering, that it is only
necessary to remind sportsmen of the figure therein of “ein junger,”
page 92, going on his toes, using so much his calf muscles, and so
little his greater powers above.
 GUIDE’S FOOT IN CLIMBING POSITION AGAINST THE SHOEHORN
ROCK AT ZERMATT.
Alois Kalbermatten photographed by Captain Abney. The angle made by
the foot with the leg is about 60 degrees.
It is in balance that the guide has such strength. He maintains his
equipoise under all conditions with the minimum of muscular effort,
so that even under adverse conditions of sudden blasts of wind,
pulls on the rope or other disturbances, he can keep his feet firmly
planted, and his balance sure. At the end of a long day’s climb he is
little wearied, and at the end of a long life he has a lot of climbing
left in him. Let it not be supposed that great muscular strength is
not there, because the guide does not put it out injudiciously. That
great observer, Charles Darwin,[1] writing on balance in riding,
makes the following interesting remarks on this very important
subject:

GUIDE’S FOOT IN CLIMBING POSITION AGAINST THE SHOEHORN

ROCK AT ZERMATT.
Peter Perren photographed by Captain Abney. The angle made by the
foot with the leg is about 60 degrees.
 GUIDE’S FOOT, TO SHOW THE ANGLE MADE BY THE FOOT WITH THE LEG
WITHOUT PRESSURE.
“The Gauchos are well known to be perfect riders. The idea of
being thrown, let the horse do what it likes, never enters their
heads. Their criterion of a good rider is a man who can manage an
untamed colt, or who, if his horse falls, alights on his own feet, or
can perform such exploits. I have heard of a man betting that he
would throw his horse down twenty times, and that nineteen times
he would not fall himself. I recollect seeing a Gaucho riding a very
stubborn horse, which three times successively reared so high as to
fall backwards with great violence. The man judged with uncommon
coolness the proper moment for slipping off, not an instant before or
after the right time; and as soon as the horse got up the man
jumped on his back, and at last they started at a gallop. The Gaucho
never appears to exert any muscular force. I was one day watching
a good rider, as we were galloping along at a rapid pace, and
thought to myself, surely if the horse starts, you appear so careless
on your seat, you must fall. At this moment a young ostrich sprang
from its nest right beneath the horse’s nose. The young colt
bounded to one side like a stag; but as for the man, all that could be
said was that he started and took fright with his horse.” And again
Darwin writes in reference to balance without apparent muscular
effort, “Each morning, from not having ridden for some time
previously I was very stiff, I was surprised to hear the Gauchos, who
have from infancy almost lived on horseback, say that under similar
circumstances they always suffer. St. Jago told me that, having been
confined for three months by illness, he went out hunting wild cattle,
and, in consequence, for the next two days his thighs were so stiff
that he was obliged to lie in bed. This shows that the Gauchos,
although they do not appear to do so, yet really must exert much
muscular effort in riding.” The guides, in the same way, do not
appear to exert much muscular effort, but great power is there both
latent and manifest, and none of it is wasted in a useless manner.
There is even found in climbing that ars celare which is so pretty in
figure-skating.
 FOOT OF A SWISS GUIDE.
The angle made by the foot with the leg without pressure. From a photograph by
Captain Abney.
For an example of strength in balance, combined with bending at
the ankle-joint, a climbing friend of mine, who is as graceful as a
Greek athlete, and has a good balance, maintaining his equilibrium
with the least possible muscular effort in mountaineering, has given
me the study of carpet athletics photographed below. It represents
two positions in the feat of standing on one foot, sitting slowly
down, and then getting up again with the same leg without touching
the floor except with the buttock. It is best not to attempt this
performance often after the age of fifty, but it is no matter to
mountaineers, for on the Alps all of them are of the same age, i.e.
about five and twenty.
THE ACT OF SITTING DOWN, USING ONLY ONE LIMB, TO SHOW THE BALANCE
WITH THE BENT KNEE AND ANKLE.
First position.
FOOT OF AN EXPERIENCED AMATEUR, TO SHOW THE ANGLE MADE BY THE
FOOT WITH THE LEG.
THE ACT OF SITTING DOWN, USING ONLY ONE LIMB, TO SHOW THE BALANCE
WITH THE BENT KNEE AND ANKLE.
Second and more extreme position.
 On Accidents
Forethought should go with courage—A life saved by the use of a big knife—Dr.
Jenner’s ride in a snowstorm—Death by lightning on the Drym—Mr. Justice
Wills’ warning—The three great dangers of the Alps—Climbing accidents
among British labourers—Our plans of prevention far behind our methods of
cure—Value of collective investigation—Sure-footedness more important than
speed—Pace not to be hurried.

As accidents will happen in so dangerous a sport as

mountaineering, it is the duty of every climber to study the causes of
these accidents, as far as possible to prevent them, and to
remember that in danger “presence of mind,” as it is called, is
generally due to careful thought beforehand, and to the rehearsal in
imagination of every possible disaster.
It is curious that men should brave more danger when most they
are in the enjoyment of life, and that loving life the most they should
then fear the least to die. “For surely the love of living is stronger in
an Alpine climber roping over a peril, or a hunter riding merrily at a
stiff fence, than in a creature who lives upon a diet, and walks a
measured distance every day in the interest of his constitution.”
Climbers must take care that the courage born of fresh air and
fine training does not develop into foolhardiness. In my notice of the
ascent of the Meije with a broken rib, this warning is conveyed.
In these pages various accidents have been mentioned without
much effort to point the moral, though in every case an attempt has
been made to suggest the cause of casualties, however slight.
In connection with the risk that a man runs who climbs alone
without a companion, or who climbs over a serious place without his
axe (thus Mr. Eyre lost his life), it is well worth giving an account of
the narrow escape related to me by an old climber, who was once
travelling over a mountainous path in the dusk. He wandered off the
track, and not having even a pointed stick with him, he slipped over
the edge of a dangerous slope, the turf and vegetation gave way at
his clutches, so that he ceased struggling, and hung in a cold sweat
over a dark abyss. Fortunately, at that moment he thought of his big
knife which hung ready; he was just able to open it, dig it in, and
anchor himself safely, until courage and strength saved his life,
leaving a never-forgotten experience, which is recorded because in
some such emergency a strong knife might prove again a good
friend.
Frost-bites, and the losses of limb or life from cold, are not
confined to Alpine snows. Phenomenal weather occurs even in
England, and the account by so good an observer as Dr. Jenner, in
his own words, of a snowstorm to which he was exposed, will
interest many mountaineers.
The late Dr. Edward Jenner, of Gloucestershire, gives the following
account of a ride through a snowstorm which he had to undertake in
the above-named year.[2]
“January 3rd, 1786. I was under the necessity of going hence
(Berkeley), to Kingscote. The air felt more intensely cold than I ever
remember to have experienced it. The ground was deeply covered
with snow, and it blew quite a hurricane, accompanied with
continual snow. Being well clothed, I did not find the cold make
much impression upon me till I ascended the hills, and then I began
to feel myself benumbed. There was no possibility of keeping the
snow from driving under my hat, so that half my face and my neck
were for a long time wrapped in ice. There was no retreating, and I
had still two miles to go—the greatest part of the way over the
highest downs in the country. As the sense of external cold
increased, the heat about the stomach seemed to increase. I had
the same sensation as if I had drunk a considerable quantity of wine
or brandy, and my spirits rose in proportion to this sensation. I felt
as if it were like one intoxicated, and could not forbear singing, etc.
My hands at last grew extremely painful, and this distressed my
spirits in some degree. When I came to the house I was unable to
dismount without assistance. I was almost senseless; but I had just
recollection and power enough left to prevent the servants bringing
me to a fire. I was carried to the stable first, and from thence was
gradually introduced to a warmer atmosphere. I could bear no
greater heat than that of the stable for some time. Rubbing my
hands in snow took off the pain very quickly. The parts which had
been most benumbed felt for some time afterwards as if they had
been slightly burnt. My horse lost part of the cuticle and hair at the
upper part of the neck, and also from his ears. I had not the least
inclination to take wine or any kind of refreshment. One man
perished a few miles from Kingscote at the same time and from the
same cause.
“The correspondent who sent us the above extract from a letter of
Edward Jenner, being a medical man, must feel, as we do, grateful
that January, 1896, has not opened with the rigour of January, 1786.
We print it because it paints a remarkably true and vivid picture of
the alteration of sensation under the influence of extreme cold.”
The pain poor Jenner suffered, when occurring so immediately
after exposure, should rather have cheered him, as a sure sign of
recovery of frozen limbs; and he was indeed fortunate in retaining
sufficient power to prevent the servants bringing him to a fire. The
rubbing with snow and gradual introduction to warmth saved his
hands, and Dr. Jenner lived to give the world his experiments on
vaccination some years later.
In the height of summer, often in extremely hot weather, weather
of the finest, there comes another risk, that of thunderstorms. A
climber soaking wet, with his iron-shod boots, his steel-pointed axe,
and metal framed goggles, makes as good a lightning conductor as
could well be found without manufacturing a lighting-rod.
The ice-axe fizzling in the hand, and the spectacles upon the
head, with hairs of the scalp set all bristling,—these are signs which
at any moment may appal the stoutest heart that ever faced a
storm.
 In July last again, another country doctor, Mr. Reese, who lived at
the village of Ystradgynlais, in the Swansea Valley, made his way to
an urgent case of a poor child accidentally burnt, over a mountain
called Drym.
When at the summit he apparently entered the focus of a severe
storm, and a discharge of lightning took place through his body and
that of his horse, killing them both instantaneously. A mountain-top
is a most dangerous place in a thunderstorm; a cloud is attracted by
the most elevated point, and any one crossing is extremely likely to
be struck by lightning. The doctor was probably wet, and, being on a
horse, had a good earth connection by means of the horse’s iron
shoes, so that any discharge between the earth and the cloud would
be very likely to traverse his body. If he could only have waited on
the lower slopes he would have been safer, but his anxiety to reach
the patient led him to his most honourable death.
Mr. Reese no doubt knew his risk perfectly well, and took his
chances at the call of human need. In pointing out the warning to
keep off prominent peaks and buttresses of a mountain in such a
storm, I should be sorry to withdraw attention from this noble
devotion to duty. To bear their silent testimony, three thousand
friends attended the funeral of this brave man.
To avoid being a prominent object when on a mountain may be
difficult, for self-effacement is not an easy thing. Moreover, on the
plains a man may be killed, as offering the best conductor for the
lightning, and determine the direction of the discharge, no tree or
other high point being near.
The traveller should find a hollow place or hole as soon as
possible, and stay there until the storm has abated. The sensitive
aneroid may have given warning of the approaching clouds, a
warning to take, as sailors say, “any port in a storm.”
The danger of standing under a tree is well known, but this
applies rather to trees that offer a prominent mark. In large forests it
appears that the lightning does not always single out the tallest
trees, and the trees when struck are seldom set on fire, though
foresters find the lightning a convenient excuse for their own
carelessness.
In the huge forests of Russia and Norway, the pines, with their
thousand masts and millions of pointed leaves, are said to act as
protectors for themselves and to relieve tension for the whole district
by their distribution.
Mr. Justice Wills sounds a true note of caution in the introduction
to Mr. Dent’s Badminton book, when he says: “There are three
things specially to be dreaded on the mountains as beyond human
control and occasionally beyond human foresight: bad weather,
falling stones, steep grass slopes, with herbage, either short or dry,
or long and wet and frozen. I do not think it possible for any one
who has not felt it to have any idea what very bad weather means in
high places, even in places by no means of the highest; or to
imagine the rapidity with which, under unsettled atmospheric
conditions, the destructive forces of nature can be raised, and the
worst assaults of the enemy delivered.
“Falling stones may come from the most unexpected places, and I
have seen from my own Alpine home a whole flake of mountain side
peel off without warning, and sweep with a cannonade of thirty
hours’ duration a gully that I and mine have used for years as a
highway to the upper world.
“Slopes of grass look so easy, and are so treacherous, that it is
scarcely possible to secure for them the respect which they have a
deadly fashion of enforcing. There are few other dangers which care
and knowledge will not eliminate.”
It will be pardoned me, I trust, if, making a digression from the
special to the general, I pass from Alpine accidents to consider
others connected with climbing, which frequently occur to workmen.
It was my sympathy with climbing which first drew my attention to
the number of disabling accidents resulting to labourers from using
only one hand in climbing ladders and carrying something, however
slight, which hampers the other hand. There is no general
understanding or training among workmen on this point. The weight
could nearly always be so slung or balanced as to keep both hands
free for climbing steps or ladders.
Scaffolders often run greater risks than bricklayers in attempting
to climb ladders, using one hand instead of both. Under my care
lately was a scaffolder who fell thirty feet, breaking his collar bone
and several ribs, lacerating his right lung and the liver. From the
latter injury, by an abdominal operation, I drained away several pints
of bile and blood clots. He made a good recovery and returned to his
wife and six children still able to earn a living for them. He tells me
that never again will he carry a bundle of shavings under one arm
when climbing a long ladder. On nearing the top, and in making the
traverse to reach the platform, the slip occurred which was so nearly
fatal. Both the balance and the grip were wanting at the critical
point.
The slightest slip or want of balance when only one hand is at
work may lead to a fall. When an Alpine climber comes to any hair-
erecting place on rocks, he takes care to have both hands free, his
ice-axe is slung round his arm or wrist, so that his grip is secure.
There is no pretence that mountaineering is not a dangerous sport;
but the dangers are reduced by forethought, and when accidents
occur it is generally from the neglect of simple measures of
precaution. Rules for avoiding dangers are made, and it would be
quite unsportsmanlike to cross névé without a rope, or show other
sign of inexperience in mountain craft.
It is significant that the members of the English Alpine Club—
though the mortality is far too heavy—do not provide the most
victims of accidents, and certainly this is not from any want of
adventurous activity in the Alpine Club.
In 1893 I saw a guide who had both feet frost-bitten, all the toes
were gangrenous, and Melchior Anderegg, kindest of nurses, was
applying the dressings, muttering “schlecht, schlecht!” A climber with
his two guides had been exposed during one night in snow. Of the
three, this guide was the only one who suffered frost-bite. He wore
new boots, which I inspected, and found the tongues not sewn to
the upper leathers; also he used no gaiters or other appliance to
keep the snow out of his boots. Neither did he put his feet in the
rücksack as did the others. His boots were simply converted into
bags of ice.
In the year 1894 I saw a case of frost-bitten fingers in the
Dauphiné which was due to violation of every wise law. There, too, I
came across an accident rather unusual in mountain experience. A
guide was struck in the mouth while ascending an ice-slope by the
iron-shod heel of the man above, who slipped from his step. Two
caravans were together too closely, and the leading guide of the
second party suffered in consequence. His tongue was badly torn,
and I had to put in several stitches.
There is a quantity of good literature about Alpine accidents, and
their causes and prevention. What is done in this way for the
scaffolder? What training has he corresponding to that of the
mountaineer? The fault did not lie in the least with my scaffolder’s
employers, who are most careful of their people; but that there are
no definite plans of prevention among the men themselves; no
general rules of their craft such as obtain among climbers. Now, if a
bricklayer, when he takes bricks up a ladder, uses the ancient hod
which balances on the shoulder, it is not gripped by the hand, and
takes nothing from the prehensile power of the man. If anything
drops, it is the bricks, not the bricklayer; but his business nowadays
is rather with small buildings, for the larger buildings, with
scaffoldings, which are quite works of art, do not require the
carrying of the hod, but take their weights up by pulleys to platforms
above.
The way in which the Alpine Club have met the risks of the
mountains is interesting as showing how intelligent men deal with
danger, and should make us hopeful that in the future we shall deal
with many of the risks which workmen incur in their less dangerous
avocations.
 As to accidents in general, we are too military altogether; in our
attitude with regard to them, we seem to expect to give and take
injuries. Ambulance lectures are organized all over the country which
teach wise plans of first aid to the injured. This is very good and
helpful, but if, with this teaching, were combined methods,
thoughtfully planned and taught, of prevention of accidents,
especially those common or peculiar to the occupations of the
districts, these lectures might be made most valuable means of
spreading useful knowledge.
Notification and collective investigation, as in infectious diseases,
would soon put a check to many common accidents in our villages,
[3] and we should reflect more on this subject because the progress
of surgery saves so many lives formerly regarded as hopelessly lost.
The individuals so saved are often mutilated, and no inquest being
held on eyes or limbs, the value of a public inquiry as to the accident
is lost. Many are the lives saved in our hospitals, many are the lives
lost or maimed by our ignorance and carelessness, for our plans of
prevention have by no means kept pace with our methods of cure.
The intelligent sportsman always leads the van, and invents new
ways of protecting himself; for example, those men who, being
short-sighted, have to shoot in spectacles, and wear shot-proof
glasses, have rather gained an advantage over the keen-sighted by
this useful protection against stray pellets.
It is obvious that forethought should extend to every sport and
occupation, especially when attended by danger, and with regard to
hunting a useful article has lately appeared on accidents in the
hunting field in reference to prevention, by Mr. Noble Smith.[4] It
would be well if this kind of formulated knowledge could extend and
spread among British workmen, especially agricultural labourers,
whose awakened intelligence has to deal with new machinery,
making new accidents, into the causes of which no methodical
inquiry is ever made.
 Let every young climber read Dr. Claude Wilson’s chapter on the
dangers of the mountains, as a thoughtful epitome on this important
subject. Climbing will not be less enjoyed by men possessing
knowledge of the dangers; and more successful expeditions are
made by those who understand such matters best, and look on their
knowledge as an essential part of the sport.
If, in spite of every care, an accident occurs of a minor kind, it will
often happen that an antiseptic pad and bandage ready in the
rücksack and skilfully applied will give confidence to the party, and
prevent the expedition from being a failure. Every man of the
caravan in climbing should have his little packet, there would thus be
enough bandages altogether to steady a sprain or a dislocation, or
to deal even with a broken limb.
A note should be kept of all casualties occurring in the cognizance
of the climber, so that comparing records of minor accidents may
prevent greater ones. The methodical yearly records of the Alpine
Journal, summed up now and then by able and experienced climbers
like Mr. C. E. Mathews, may prove of value, not only to
mountaineers, but to mankind.
Twenty years ago Mr. Leslie Stephen wrote to the Alpine Journal,
“I hold that we can best promote Alpine Climbing by enforcing with
all our power a code of rules which will make it a reputable pursuit
for sensible men.” The pursuit needs no defence now. One man may
be born a lover of the mountains, another by climbing come to love
them later; but as a baby, boy, or man, he is always a climbing
animal.
After forty, a climber is in the old age of his youth, and must not
be so reckless as to pace; his endurance and sure-footedness may
be better, but his elasticity is less, though there may be nothing to
remind him that “changeful time with hand severe” will make him
soon those sports forego which he still pursues with the enthusiasm
of his youth. In the most active party there is usually some one
rather slower than the rest, to remind us of that famous jest of
Calverley, when toiling up a slope with an eminent novelist,—“the
labour we delight in physics Payn.” We can scarcely compute how
much the toils add to the pleasures, only of this we may be assured,
of what also is often found in life, that “to travel hopefully is a better
thing than to arrive, and the true success is to labour.”
 FOOTNOTES
[1] Naturalist’s Voyage round the World.
[2] “A Country Doctor’s Ride,” from the Lancet, January, 1896.
[3] See Preventive Surgery. Deighton, Bell and Co.
[4] Clinical Sketches, 1895.
 INDEX.

A
Abney, Captain, 13, 132.
Accidents, 145.
Acute angle in foot, 125, 127.
Adder, 3, 21.
Addenbrooke’s Hospital, 92.
Aiguille des Charmoz, 15.
Aiguille du Dru, 59, 86.
Aiguille du Géant, 13.
Aiguille Grise, 55.
Aiguille Blanche de Péteret, 54.
Aiguille Noire, 65.
Aletsch Glacier, 81, 82, 115.
Alpine Journal, 116, 166.
Alphubel Mountain, 105.
Amateurs, 119.
Ambulance lectures, 162.
Ankle joints, 120.
Andes, The Great, 73.
Andenmatten’s boots, 10.
Anderegg, Melchior, 3.