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Bennett Abstract

Global Institute for Freedom and Awareness

Collaborative Research on Institutional Dynamics in Open Societies

The Instrumental Value of Children’s Privacy

Thomas DC Bennett, Lecturer in Law, Newcastle University

Article 8 of the ECHR guarantees everyone the right to private life. There is no distinction drawn between the privacy rights of adults and children under the Convention on its face. Yet the roles played by – and the manner in which value is accorded to – adults’ and children’s privacy interests in English tort litigation are, in some instances, quite distinct.

Since the emergence, in 2004, of English law’s informational privacy tort – “misuse of private information” – a number of high-profile cases involving the children of celebrities and other public figures have come before the courts. In several of these “third party” cases, the children’s privacy interests play a unique, supporting role: they are prayed in aid to bolster the parent’s claim (typically for injunctive relief). Close scrutiny of these third party cases reveals clear problems at the formal level, since (despite rather misleading judicial pronouncements that the relevance of third party interests is “well established” in this field) their doctrinal foundations are – at best – murky and seriously underdeveloped. From this scrutiny an argument emerges suggesting that this line of authority is primarily informed by a pragmatic (in the sense of outcome-oriented) approach to adjudication.

After evidencing the foregoing points, this paper will consider what this line of authority reveals about the way in which these children’s privacy interests are accorded value by the English courts. For the judiciary is keen to highlight the intrinsic, dignity-based value of protecting the children of celebrities. Yet when one considers the role which these third party interests play in this line of authority as compared with those cases where the child is the named claimant, a rather different picture emerges: that of a highly instrumental approach to valuing children’s privacy. If the reading of these cases offered by this paper is correct, then the interests of children may in fact be subject to judicial assessment primarily on the basis of the value they add to a parent’s claim for privacy protection.