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Out-Law News 2 min. read

Common law right to privacy recognised in Scots law

A common law right to privacy has been recognised to exist in Scots law for the first time.

The Outer House of the Court of Session in Edinburgh confirmed the existence of the right in a ruling issued late last month.

Specialist litigator Jim Cormack QC of Pinsent Masons, the law firm behind Out-Law, said the court's finding was significant.

Cormack said: "Lord Bannatyne was, it appears, easily satisfied that a right of privacy exists in terms of the common law of Scotland. He was evidently able to reach this conclusion readily based on case law in England and Wales, which established such a right in the common law of that jurisdiction and in the absence of any previous Scottish case in which the courts had ruled against the existence of a common law right in Scotland. Nonetheless, the review of the common law position by Lord Bannatyne is very welcome as a clear statement of the law of Scotland on the matter which can be cited and relied upon in future cases."  

"The underlying legal basis of the right, as set out by Lord Bannatyne, is very clear. As in England, the root of the right is in the law of confidence which protects against disclosure or misuse, information which is communicated in circumstances which give rise to a reasonable expectation of confidentiality. The courts have extended this to protect a reasonable expectation of privacy and in so doing in this case, it is interesting and welcome that Lord Bannatyne recognised the centrality of privacy in a free and democratic society. These values underlie the common law as well as the statutory law of human rights," he said.

Cormack highlighted, though, that the right to privacy is a qualified right which has to be balanced against other interests.

In the case before it, the Court of Session considered whether 10 police officers had their privacy rights infringed when electronic messages they had exchanged over WhatsApp groups were relied on to bring misconduct charges against them. The messages had been recovered during a separate investigation into sexual offences by another police officer. The judge said there was no suggestion the 10 officers were of any interest to that investigation.

The Court of Session said that while a common law right to privacy does exist in Scots law, the police officers had to show that they had a reasonable expectation of privacy in relation to those messages for their privacy rights to apply. Lord Bannatyne said, though, that because the contents of the messages were pertinent to the question of whether the officers were observing statutory-set police standards they had sworn to uphold, the officers did not have a reasonable expectation of privacy in those messages.

Data protection law expert Kathryn Wynn of Pinsent Masons said: "Although not specifically mentioned in this judgement, the newly confirmed common law right to privacy in Scots law exists in parallel with the statutory data subject rights that are built in to the General Data Protection Regulation, in particular the right to be informed about the nature of data processing."

"It is good practice and a requirement of the transparency obligations under data protection law for data controllers to inform data subjects of the circumstances in which their personal data may be processed. In an employment context, this includes being explicit about which communications channels may be accessed in the context of investigations. By not making clear what media could be accessed in the event of an investigation, employers will open themselves up to potential breach of privacy claims built upon expectations they have set regarding the privacy of communications," she said.

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