Update: A Right to Privacy? The Tate

24th February 2020 Media Law

The Court of Appeal has rejected the residents’ appeal against Mr Justice Mann’s decision in the High Court to dismiss their complaint brought against the Tate Modern for invasion of privacy by way of nuisance and/or the Human Rights Act 1998.

The claimants had argued that the use of sections of the Tate Modern’s viewing platform had unreasonably interfered with the enjoyment of their flat so as to be a nuisance. Residents state that visitors to the Tate Modern’s viewing gallery frequently look into their flats, some visitors take photographs, and less frequently people peer into their flats using binoculars.

Mr Justice Mann had found that whilst the law of nuisance is capable of operating so as to protect the privacy of one home against another, this general principle could not apply to the case at hand.  

In dismissing the claimants’ appeal, the Court of Appeal reiterated that overlooking was not capable of giving rise to public nuisance and whilst in certain, appropriate circumstances a breach of privacy may give rise to a claim in nuisance, it cannot create an unrestricted right to a view.

Concerns had been raised that allowing the appeal would open the floodgates to so called overlooking amounting to a nuisance. The Court of Appeal concluded that it would be preferable for Parliament to formulate further laws in this area to deal with the issue of ‘overlooking rather than to extend the law of private nuisance’ and decided that the ‘overwhelming judicial authority…is that mere overlooking is not capable of giving rise to a cause of action in private nuisance’.

In analysing whether the Article 8 ECHR right to respect for privacy ought to be engaged to extend the common law tort of private nuisance to apply to instances of overlooking, the Court of Appeal decided that there had been no case law from Strasbourg which indicated guidance that the overlooking of a neighbour’s property ought to amount to a breach of Article 8.

The Court has refused leave for the residents to appeal the decision to the Supreme Court.

The Court of Appeal’s decision does provide legal clarity, and in practical terms allows the Tate Modern’s viewing platform, which offers 360 degree views of the capital, to remain open to the public for the foreseeable future.

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Ben Woodall is a Paralegal located in Manchesterin our Media Law department

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