Case review: is an invasion of privacy an actionable legal nuisance?

27 March, 2019

The case of Fearn & Others v the Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch) concerned a dispute between Tate Modern and owners of adjacent flats over the Tate’s new public viewing platform and whether an invasion of privacy could amount to an actionable legal nuisance.

The claimants had bought their flats in or around 2013.  After their purchase the Tate constructed a new extension, which included a large viewing gallery on the 10th floor which allows 360 degree views.  The flats predominantly had floor to ceiling glass windows and as a result were very overlooked by people on the viewing platform.  Visitors (some 500,000 to 600,000 a year have been using the platform) were able to look into the flats.  The claimants complained that some do this with binoculars and take photographs of the inside of the flats.  The Tate Modern would not agree to simply block off the section of the viewing platform which overlooked the flats.

Some of the flat owners sought an injunction against the Tate to prevent members of the public invading their privacy by observing them from the platform.  They sought to argue:

  1. They had a right of privacy under the Human Rights Act; and/or
  2. The invasion of privacy from which they were suffering amounted to a legal nuisance.

In order to make out a claim under the Human Rights Act the claimants had to show that the Tate Modern was a quasi-public body.  The judge concluded although the Tate body is founded by statutes and receives some public funding, it was not exercising “functions of a public nature” and therefore did not have a significant degree of accountability to the State.

The claimants therefore had to seek to establish a claim in nuisance.  The question here was whether an invasion of privacy could amount to an interference with the residents’ quiet enjoyment of their properties.

Whilst the judge did conclude that the law of nuisance ought to be, and is capable of, protecting privacy rights from overlooking, particularly a domestic home, he went on to find that whether something was an invasion of privacy would depend on whether, and to what extent, there was a legitimate expectation of privacy.

On these facts, he found that there was no actionable nuisance.  The claimants had bought flats with floor to ceiling windows.  Owners of these flats could expect rather less privacy than a rural occupier might, particularly given their location in central London.  The windows themselves were a “self-induced exposure to the outside world”.  In light of this, he found that there was no liability in nuisance.