Introduction
Does confidentiality protect your privacy? The public’s growing concern about privacy in modern society has sparked academic debates for centuries. This essay begins by reviewing the elements of the equitable doctrine of confidentiality and the origins of the legal concepts of both confidentiality and privacy.
First, the essay examines the scope of the equitable doctrine of confidentiality through case studies. Next, it discusses why we may not apply the equitable doctrine of confidentiality to privacy issues. Then, the essay explores the legal concepts of both torts and property to offer new perspectives on protecting privacy.
The essay concludes that while the equitable doctrine of confidentiality can protect privacy, it may not be sufficient for providing more profound privacy protection.
Equitable Doctrine of Confidentiality
To qualify for equitable protection regarding confidentiality, three elements must be met in the circumstances: “First, the information itself…must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorized use of that information to the detriment of the party communicating it’’. [1]
Confidentiality
The concept of confidentiality originates in the Anglo-American common law dating back to 1890. [2] Confidentiality is deeply embedded in the relationships. Confidentiality specifically cares about the relationships that require mutual trust and the non-disclosure of private information to third parties. [3]
Therefore, confidentiality protects the information ‘’we share with others based upon our expectations of trust and reliance in relationships’’. [4] These ‘’expectations’’ and the ‘’reliance’’ are key elements in identifying the relationship. Without these two premises, the third element of the equitable doctrine of confidential information becomes null, as there will be no ‘’detriment’’ caused by the breach.
Privacy
Ten years ago, when I was a media arts student at a university in South Australia, our tutor shared a quote from Mark Zuckerberg: “Modern people do not have privacy’’. Mark Zuckerberg said this because, as a businessman, he wanted to pioneer uncharted territory for profit. However, the question of how to legally protect privacy remains intriguing and relevant today.
Privacy is an awkward concept, especially in Australia, as it navigates the legal landscape without finding a permanent home. Privacy benefits from several legal protections, including the equitable doctrine of confidentiality and statutory law. Discussions about tort protection have also engaged legal professionals. [5] However, Australian courts have not fully embraced the concept of a ‘’tort of invasion of privacy’’ or any precise legal protection for privacy, [6] even though invasions of our privacy are rampant.
A Question of Scope
Extending the protection of the equitable doctrine of confidentiality to privacy involves a question of scope, and a question of fact.
Gleeson CJ believed that the equitable doctrine, with its elements for breach of confidence, could be ‘’the most suitable legal action for protecting privacy interests in Australia’’. [7] The notable expansion of equitable confidentiality includes at least two key concepts. In Lenah, Gleeson CJ widened the scope of the circumstances previously confined to relationships of trust and confidence; He also expanded the definition of confidential information to include the idea of privacy. [8]
Among the many types of “private situations’’ that may deserve protection, some situations make us particularly vulnerable. For example, patients need to be open and honest with their physicians, [9] and sexual privacy is another significant area.
We can investigate some cases to see how the equitable doctrine of confidentiality addresses privacy issues if we extend such equitable protection.
Case Study
I A Public Figure’s Sexual Activity in a Brothel?
Defining the nature of the information – ‘’the necessary quality of the information’’ – is always an ambiguous standard. Judges in Doe held that sexually explicit information met the requirement of having the necessary quality of confidence for equitable protection. [10]
Some cases support the view that equitable confidentiality should protect sexual privacy, such as Giller v Procopets, and Wilson v Feguson. [11] But an extreme situation involves ‘’transitory’’ sexual activity in a brothel, for example, Theakston v MGN Ltd.
We usually wouldn’t care if our neighbor visits a brothel, nor would the media, unless our neighbor is a household name. As fundamental human rights, ordinary people’s privacy is protected by Article 12 of the Universal Declaration of Human Rights: ‘’No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.’’ [12] Sexual privacy is supposed to be included.
Case – Theakston v MGC Ltd
However, a public figure has a ‘’double identity’’, and the scope of confidentiality may not cover all aspects of their privacy. In a case like Theakston v MGN Ltd, the claimant might not be entitled to confidentiality protection regarding certain facts, as the court found a public interest exists (due to being a role model, etc). [13] However, the court found the photograph represented an ‘’intrusive’’ element into the claimant’s privacy; therefore, competing interest such as the right to freedom of expression could not outweigh the predictable damage to the claimant’s privacy. [14]
Public Interest and Privacy
This raises another question: if some parts of a sexual relationship must be revealed due to ‘’public interest’’, does the law of confidentiality merely allow ‘’the disclosure of the existence of sexual relationships’’ or ‘’the details of that relationship’’ in question? [15]
This question highlights how the court can draw a fine line around the scope of confidentiality protecting privacy. The claimant’s social status as a successful and public figure, close to a moral model portrayed by the employer BBC, is not protected by the equity’s confidentiality, [16] because by choosing this career, he has somehow compromised certain aspects of his privacy that ‘’his actions will be more closely scrutinized by the media’’. [17] However, although the more one seeks publicity the more intrusion into the privacy one may invite, [18] it still does not mean the intrusion can be unlimited simply because he or she is a public figure.
Public interest plays a key and subtle role in such cases. In a world where voyeurism is enhanced by the media, it is vital to distinguish public interest from public curiosity when extending equitable protection to privacy.
Equitable Confidentiality and Privacy
As shown above, the equitable law of confidentiality may have the ‘’capability’’ to extend to protect privacy, under the court’s discretion, as both confidence and privacy are ‘’capable of overlapping’’. [19]
However, their Honours in Hosking clearly pointed out that privacy and confidence are different legal species – ‘’Breach of confidence, being an equitable concept, is conscience-based. Invasion of privacy is a common law wrong which is founded on the harm done to the plaintiff by conduct which can reasonably be regarded as offensive to human values.” [20]
Legal history reflects the difference in two major paths: “American privacy law has centered around the individual’s inviolate personality, English privacy law has focused on social relationship’’. [21]
Contractual Relationship
Typically, confidentiality relies on the contractual relationship, as it originates from ‘’the terms of a contract between confider and confidant’’. [22] Confidence must be established between at least two parties; it is embedded in the relationship. However, confidential information possessing the ‘’necessary quality of confidence’’ is typically associated with commercial characteristic, such as trade secrets, [23] The evolved version of equitable confidentiality encompasses privacy but remains rooted in the ‘’relationship’’, even though trust and confidence might not be emphasized, as a contract is essentially a relationship-based concept.
It is somewhat reasonable to base the protection to privacy on the relationship-based contractual concept because most private information must flow from one party to another. The equitable doctrine of confidentiality typically involves aspects of ‘’estoppel’’ in contract law, such as reliance and unconscionability, as Mitchell J stated in Wilson v Ferguson, ‘by that principle, equity imposes an obligation of conscience arising from the circumstance…’. [24]
However, privacy transcends mere relationship or specific information. The breach of confidentiality is simply misconduct during business transactions.
Reasons Behind Using Equitable Confidentiality
The equitable doctrine of confidentiality for privacy holds a relatively higher standard. Certain elements within this doctrine pose notable challenges.
Morality-based Approach
Equitable confidentiality for privacy generally follows a morality-based approach. Through a moral lens, Fletcher distinguishes privacy from confidentiality by explaining the ideal of loyalty:
“We value privacy, but it is hardly a moral value. Whether privacy becomes moral depends a great deal on what one does in the space left unregulated and unsupervised. Privacy, being left alone, is itself neither good nor bad. Loyalty, by contrast, communicates the moral value of remaining steadfast to friends, lovers, families, organizations, political movements, and nations. We search for loyalty in all those with whom we seek to build personal, business, or political relationships.’’. [25]
Taking such a morality-based approach to determine whether privacy should be protected by confidentiality reveals the essence of equity. A Judge in the case Theakston v MGN Ltd expressed that ‘’Sexual relations within marriage at home would be at one end of the range or matrix of circumstances to be protected from most forms of disclosure; a one-night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity. A transitory engagement in a brothel is yet further away…’’. [26]
Case – A v B plc
Lord Woolf CJ shared a similar view in A v B plc, stating that there is a difference ‘’between the confidentiality which attaches to what is intended to be a permanent relationship and that which attaches to the category of relationships which A was involved with here’’. [27]
The rationale behind such a view might be because there is an assumption that the ‘transitory engagement in a brothel’ is not a relationship. Knowledge about the nature of such “transitory engagement” might be one of the key elements as both parties would not expect and rely on such engagement. [28]
In the morality-based approach, the Judge took a position that only the true relationship deserves the protection of confidentiality, and the criteria to determine the ‘’true relationship’’ may include the length of time (permanent, long-term, or even one-night stand). The rationale is understandable. The law of confidentiality traditionally protects those relationships invested with expectations, trust, and reliance. [29]
Harm-based Approach
The equitable doctrine requires that the unauthorized use of information must lead to a detrimental consequence, at least in a foreseeable way. This requirement is based on the “Harm Principle’’ laid out by the 19th-century political philosopher John Stuart Mill in his book On Liberty, ‘’…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others“. [30]
We need to ask whether a harm principle-based doctrine is necessary to set such a high bar to protect our privacy.
Mill’s harm principle also casts light on the definition of privacy: “…the only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign…’’ [31]
Case – Creepshot Forums
In some cases, using a harm-based approach to address an individual’s sovereignty is not always effective. With the progress of technology, many novel issues about privacy violations have emerged, such as creepshots. Creepshots are images taken in public place without exposing sensitive and intimate information. [32] Creepshot forums rely on the harm principle, with their motto ‘’no harm, no foul’’, strongly defending that nothing uploaded onto their site is sexually explicit or personally identifiable. However, Ryan Chan pointed out that the absence of consent and respect can still constitute a privacy violation. [33]
Notably, Creepshot forums believe ‘’no confidentiality, no harm, no foul’’. However, if we use land property as an example, we might see this issue more clearly. If a stranger trespasses on land, they do not have to trespass into your bathroom or bedroom where you are usually naked; even your front yard or backyard exposed to the sunshine is protected by tort law. Furthermore, a trespasser does not have to cause destructive damage to your house or land to constitute trespass; simply ‘’crossing the line’’ is sufficient to be offensive, because the key point here is ‘’without consent’’.
Although enhancing the interference over privacy is a difficult question, the counterargument is that unless there is a breach of criminal law, neither the state nor the media should interfere with an individual’s sexual life. [34] This is probably one of the reasons why the State rarely explicitly designs laws to address the sexual-related issues between individuals, unless it’s rape, etc.
Service-based Approach
Even an evolved version of the equitable doctrine of confidentiality is still a makeshift choice for privacy.
Ryan Chan pointed out the fundamental reason is that ‘’the breach of confidence action rests on a foundation not of protecting privacy, but rather protecting against misuse of information’’. [35] He explained that the breach of action was more suitable for dealing with the published information, yet the power of the BOC did not cover the conduct itself. [36]
Besides, the equitable doctrine of confidentiality focused more on the quality of ‘’content’’ (or information) and relationship (even though trust is not required, the ‘expectation’ still creates ‘obligation’). In cases like Theakston, judges would need to spend some time distinguishing the ‘’moral quality’’ of the relationship…Warren and Brandeis argued that the goal of privacy protections should be about protecting an “inviolate personality” and the feelings of the individual from injury, not enforcing the norms and morality of relationships. [37]
Privacy Invasion?
Richards and Solove pointed out that Warren and Brandeis failed to see that ‘’a lot of privacy invasion still involved relationships between people’’ and therefore didn’t ‘’appreciate the full power and potential of confidentiality’’. [38]
However, the information confidentiality protects is a by-product of a relationship, it is most likely service-based information. This aligns with the origin of confidentiality, which falls within business or commercial secrets. Richards and Solove introduced the example of the Hippocratic Oath: ’’…whatever, in connection with my professional service, or not in connection with it, I see or hear, in the life of men, which ought not to be spoken of abroad, I will not divulge, as reckoning that all such should be kept secret.’’ [39] Whether or not the information is directly connected with professional service, it is still derived from a “professional relationship”. As Richards and Solove clarified, confidentiality is essentially about ‘’protecting information from disclosure in the context of relationships”. [40]
But privacy is a much more complicated concept than confidentiality; it is more about ‘’individual sovereignty’’.
Rare Remedy for Monetary Compensation
In Wilson v Ferguson, Mitchell J also concerned whether ‘’equitable compensation can be awarded to compensate a plaintiff for non-economic loss.’’ [41] He outlined two conceptual barriers to the plaintiff’s claim. The first barrier, that common law damages for emotional distress are only accessible “in very limited circumstances”, was less problematic than the second. Mitchell J analysed that the second barrier, that Australian equitable compensation had only been awarded for economic loss, presented more significant difficulties to the plaintiff. [42]
Additionally, an injunction might not effectively deter the invasion of privacy. An injunction to restrain the spread of private information may have been effective when printing technology was dominant, but in today’s technology-driven society, uploading one image or one video can mean uploading thousands due to the internet’s ability to spread information exponentially within seconds. This concern was also raised in Wilson v Ferguson. [43] Therefore, Mitchell J pointed out that relief should ‘’take account of the immediacy’’ when addressing contemporary issues. [44]
More Adaptable Solutions
Nevertheless, Mitchell J acknowledged the progress driven by Giller, noting that equitable relief has expanded from injunctions to monetary compensation to enforce equitable obligations. He attributed the rationale behind such judgments to the ‘cardinal principle of equity’’, which tailors remedies based on the uniqueness of each case. [45] This flexibility makes equitable protection over privacy appear more adaptable, although the treatment of critical privacy will depend on different judges’ discretion.
New Perspective
A Tort of Privacy?
Given these points, it is worth exploring new perspectives. Mill’s idea that the individual is sovereign naturally invites us to examine the possibility of a tort of privacy. Des Bulter recommended that “the trespass-based privacy tort would be aimed at preventing any intrusion upon an individual’s personal privacy…” [46]
There are similarities between trespass and invasion of privacy. Trespass torts, as ‘’dignitary torts’’, relates to ‘’an invasion of another person’s defined rights to bodily and mental integrity…’’. [47] Similarly, European tradition embedded its seed of dignity in the ‘’protection of feelings’’. [48] The rationale behind torts law as a common law to “respect the privacy, autonomy and dignity of each human being”, [49] aligns with the classic concepts of privacy.
Rights Protection
Additionally, trespass to land has never required that the defendant’s interference cause ‘’damage’’ to the land or its possession, as it is fundamentally about rights protection.
Furthermore, in the torts law against trespass to land, the concept of ownership, profoundly speaks for our rights – ‘’because one of the purposes for bringing an action in trespass to land is to assert ownership (or to have an interest in land recognized), and because the ownership and possession of the land was fundamentally important in English social history as one of the early sources of wealth, position and power, the common law judges have been ferocious in protecting these rights.” [50]
The Concept of Trespass?
The equitable doctrine of confidentiality has not been able to navigate the depth of protection that tort law might provide.
The concept of trespass or torts of privacy offers a fresh perspective on protecting privacy as a matter of rights protection. However, among many different rights, which right best fits privacy protection?
As discussed above, breaches of confidence usually arise from professional-client relationship, even setting aside relationships between lovers, case involving strangers taking snapshots, such as creepshots in a modern society setting, do not fit this protection. Warren and Brandeis argued that relationship-based confidentiality didn’t sufficiently cover cases arising from non-professional-client relationships because ‘’a stranger (photographer) did not have a relationship with the subject of the photo’’. [51]
Warren and Brandeis further argued that ‘’since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection”, pointing out that no contract or trust arises in such situations. [52]
A Property?
Most importantly, Warren and Brandeis convincingly concluded that we need to treat the right to privacy as ‘’a right against the world’’, rather than a right arising ‘’from contract or from special trust’’. [53] Although their purpose was to find a remedy for spiritual or mental injury for privacy, they suggested a bold new path: evaluating the right to privacy as ‘’rights in rem’’ (similar to property rights), instead of “rights in personam’’ found in contractual relationship between parties.
In this sense, we can give privacy maximum protection, covering both contractual (professional or business types) and non-contractual relationships (lovers, or creepshots cases), or we should say, the characteristic of the relationship is irrelevant. From this point of view, we agree with Kay Wheat’s assertion that ‘’the obligation to respect privacy is wider than the obligation of confidence in that the latter only arises when confidential information is imparted in certain circumstances.’’ [54]
Therefore, using the equitable doctrine of confidentiality, derived from contractual relationships, provides limited protection for privacy. Equitable confidentiality fundamentally arises between parties, whether professional or private. However, the position of privacy under equitable protection over confidentiality is relative, yet the innate character of privacy demands absolute protection, restricted only by necessary interferences under rare condition, such as public interest.
American Tradition vs European Tradition
Moreover, for ‘’western cultures of privacy’’, James Whitman differentiated “an American tradition of liberty rooted in the protection of the home and a European tradition of dignity rooted in the protection of feelings’’. [55] Therefore, when Warren and Brandeis considered privacy as ‘’a right against the world’’ (rights in rem), they aimed to consolidate privacy into a right with absolute characteristics. Although inspired by Prince Albert v Strange, [56] Warren and Brandeis genuinely sought to ‘’turn Prince Albert from an opinion protecting intellectual property rights to a case protecting individual feelings and emotions from the pain of unwanted publicity’’. [57]
Our Sovereign
In my view, if our body (including mental aspects) is a ‘sovereign’’, we need to treat any private information centered around our body as our property – our “national assets’’. This approach does not ‘’objectify our body’’, but regards personal information, from general details to intimate sexual activity as our own ‘’assets’’.
The inadequacy of the equitable doctrine of confidentiality for privacy protection lies in its failure to create or acknowledge ‘’property rights’’ for our privacy,
If you have land or a house, you have property, and land law or property law protect you. If you write a book or create art, intellectual property law safeguards your creation. But what law ideally protects your private information, from general to intimate?
Case – Wilson v Ferguson
In the Australian case Wilson v Ferguson, certain factual moments suggest the need for new legislation:
First, when the plaintiff left her phone in the room for a while, and later the defendant told her that he had taken the images and videos from her phone and emailed them to himself, the plaintiff was already irritated and confronted the defendant about his unauthorized action.[58]
Second, the plaintiff also requested that the defendant keep the information to himself, and the defendant promised to do so at that time. [59]
The equitable doctrine of confidentiality only addresses the second scenario, similar to ‘’estoppel’’. However, before breaching confidentiality, the defendant had already invaded the plaintiff’s privacy, which the contractual relationship-based equitable doctrine fails to address significantly.
Treating Privacy as Property
Treating privacy as “property” might provide better protection.
Consider a scenario where a couple shares a house. If one day the husband or the wife wants to do some tricky things to transfer the property to their name without consent, the law deems this fraud.
Similarly, if later their relationship turned sour and one partner wanted to publish intimate materials online without consent (taken during their honeymoon), treating personal information as sacred property would classify this conduct as “fraud” or another wrong, even if the information is their ‘’shared property”.
In Hosking, their Honours expressed that ‘’… I consider it legally preferable and better for society’s understanding of what the courts are doing to achieve the appropriate substantive outcome under a self-contained and stand-alone common law cause of action to be known as invasion of privacy”. [60]
A Culture of Individualism?
Ultimately, whether the equitable doctrine of confidentiality should protect privacy boils down to one question: how important is our privacy?
The answer may lie in comparing Australia with the U.S. and the U.K. In America, “the prevailing belief is that people assume the risk of betrayal when they share secrets with each other. But in England, spouse, ex-spouse, friends, and nearly anyone else can be liable for divulging confidences…. American privacy law has never fully embraced privacy within relationships; it typically views information exposed to others as no longer private….” [61]
America favors individualism more than any other country in this world, at least traditionally. This does not mean Americans do not value relationships; it simply means the degree of “reliance’’ on “shared secrets” might not be that high, and the line between ‘’self’’ and ‘’others’’ is clearer. As a result, the concept of the “individual” has driven the development of many important laws, such as the Bill of Rights.
Conclusion
As shown above, the equitable doctrine of confidentiality may protect privacy to some extent, but they are still different legal species. This essay does not attempt to make a definitive conclusion; instead, it aims to explore new possibilities and pose thought-provoking questions as to our invaluable privacy. In simple terms, it is necessary to maximize the protection of privacy as an absolute right beyond the flexible equitable doctrine of confidentiality.
[END]
BIBLIOGRAPHY
A Articles/Books/Reports
Czarnota, Paul A., ‘Athlete Privacy Rights and Endorsement Contracts: An Analysis of U.S., U.K., and Australian Law’ (2012) 11(2) Virginia Sports and Entertainment Law Journal 460
Chan, Ryan, ‘Creepshots – A Persistent Difficulty in the Australian Privacy Landscape’ (2020) 39(2) University of Tasmania Law Review 83
Davis, Julia, and Marco Rizzi, Connecting with Tort Law (Oxford University Press Australia & New Zealand, 2nd ed, 2020)
Gellman, Robert M., ‘Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy’ (1984) 62(2) North Carolina Law Review 255
Pont, G E Dal, Equity and Trusts: Commentary and Materials (Thomson Reuters (Professional) Australia Limited, 7th ed, 2019) 200
Richards, Neil M. Richards, and Daniel J. Solove, ‘Privacy’s Other Path: Recovering the Law of Confidentiality’ (2007) 96(1) Georgetown Law Journal 123
Wheat, Kay, ‘Lawyers, Confidentiality and Public and Private Interests’ (1998) 1(2) Legal Ethics 184
B Cases
Coco v A N Clark (Engineers) Ltd [1969] RPC 41
Giller v Procopets (2008) 24 VR 1
Prince Albert v. Strange (1848) 41
Wilson v Ferguson [2015] WASC 15
C Treaties
Universal Declaration of Human Rights
E Other
Website page, https://plato.stanford.edu/entries/freedom-speech/#JohStuMilHarPri
Footnote 1
[1] Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47.
[2] Neil M. Richards and Daniel J. Solove, ‘Privacy’s Other Path: Recovering the Law of Confidentiality’ (2007) 96(1) Georgetown Law Journal 123, 125.
[3] Ibid 125.
[4] Ibid.
[5] Julia Davis and Marco Rizzi, Connecting with Tort Law (Oxford University Press Australia & New Zealand, 2nd ed, 2020) 187.
[6] Paul A. Czarnota, ‘Athlete Privacy Rights and Endorsement Contracts: An Analysis of U.S., U.K., and Australian Law’ (2012) 11(2) Virginia Sports and Entertainment Law Journal 460, 491.
[7] Ryan Chan, ‘Creepshots – A Persistent Difficulty in the Australian Privacy Landscape’ (2020) 39(2) University of Tasmania Law Review 83, 89.
[8] Ibid.
[9] Robert M. Gellman, ‘Prescribing Privacy: The Uncertain Role of the Physician in the Protection of Patient Privacy’ (1984) 62(2) North Carolina Law Review 255, 257.
[10] Chan (n 7) 90.
[11] Giller v Procopets (2008) 24 VR 1; Wilson v Ferguson [2015] WASC 15.
[12] Universal Declaration of Human Rights, Art 12.
[13] G E Dal Pont, Equity and Trusts: Commentary and Materials (Thomson Reuters (Professional) Australia Limited, 7th ed, 2019) 200.
[14] Ibid 203.
[15] Ibid 205.
[16] Ibid 202.
[17] Ibid, p204.
[18] Ibid, p204.
[19] Pont (n 13) 207.
[20] Ibid 208.
[21] Richards and Daniel J. Solove (n 2) 127.
[22] Pont (n 13) 192.
[23] Chan (n 7) 89.
[24] Wilson v Ferguson [2015] WASC 15, 45.
[25] Kay Wheat, ‘Lawyers, Confidentiality and Public and Private Interests’ (1998) 1(2) Legal Ethics 184, 186.
[26] Pont (n 13) 201.
[27] Ibid 204.
[28] Ibid.
[29] Richards and Daniel J. Solove (n 2) 126.
[30] https://plato.stanford.edu/entries/freedom-speech/#JohStuMilHarPri
[31] https://plato.stanford.edu/entries/freedom-speech/#JohStuMilHarPri
[32] Chan (n 7) 85.
[33] Ibid 86.
[35] Chan (n 7) 88.
[36] Ibid 92.
Footnote 2
[37] Richards and Daniel J. Solove (n 2) 133.
[38] Ibid.
[39] Ibid.
[40] Ibid 132.
[41] Ferguson (n 24) 71.
[42] Ibid 72.
[43] Ibid 80.
[44] Ibid 81.
[45] Ibid 82.
[46] Davis and Marco Rizzi (n 5) 187.
[47] Ibid 148.
[48] Richards and Daniel J. Solove (n 2) 127.
[49] Davis and Marco Rizzi (n 5) 188.
[50] Ibid 204.
[51] Richards and Daniel J. Solove (n 2) 132.
[52] Ibid.
[53] Ibid.
[54] Wheat (n 25) 186.
[55] Richards and Daniel J. Solove (n 2) 127.
[56] Prince Albert v. Strange (1848) 41.
[57] Richards and Daniel J. Solove (n 2) 131.
[58] Ferguson (n 24) 23.
[59] Ibid.
[60] Pont (n 13) 207.
[61] Richards and Daniel J. Solove (n 2) 126.