IMAGINING PRIVACY IN THE COMMON LAW:
OVERCOMING THE BARRIERS TO A COMMON LAW TORT OF INTRUSION

Abstract

This thesis is concerned with the relevance of imagination to the task of judicial elaboration of the common law. It brings this issue into focus by concentrating its analysis on the “intrusion lacuna” in domestic tort law’s protection of privacy interests. The thesis proposes that this lacuna, whereby the common law lacks a tort of intrusion into privacy, can be explained by identifying two “barriers” to the adoption of such a tort. A “formal” barrier inhibits development by causing the courts to believe that the development of a novel privacy tort would amount to an illegitimate exercise in judicial activism. A “semantic” barrier arises out of the difficulty in conceptualising the amorphous term “privacy”, which – it is often (wrongly) thought – is not amenable to sufficiently tight definition to drive the development of heads of liability apt to protect it.

The presence of both barriers indicates the dominance of a particularly restrictive mode of thinking in judicial decisions on privacy in recent years. This strongly resembles a mode of thinking associated with the left hemisphere of the human brain. Where this mode of thinking dominates, attentiveness to context is significantly diminished. The result is a privacy jurisprudence that possesses little awareness of the broader legal and social context within which it takes place. Crucially, this left hemisphere-dominated mode of thinking inhibits the exercise of imagination in our privacy jurisprudence.

The thesis argues that only by engaging in a more imaginative jurisprudence can the two barriers be overcome. To that end, it constructs a working understanding of “legal imagination” which makes plain the core role that attentiveness to context plays in creative endeavours, including developing the common law. It concludes that, if an intrusion tort is to be developed by the courts, they will first have to adopt this more imaginative jurisprudence.