Intrusion of Privacy and the Actio Iniuriarum

The recent emphasis on common law constitutional rights has renewed attention on the extent to which Article 8 Convention rights are adequately expressed through the existing common law authorities of the Scots law of delict. The inadequacy of existing delictual protections is particularly acute in the case of the non-informational aspects of privacy, where English law provides little guidance. This article examines the viability of the actio iniuriarum as a means for protecting non-informational privacy. It begins by outlining the emerging judicial framework for developing common law constitutional rights. It then discusses the distinction between informational and non-informational privacy, as well as judicial and scholarly treatment of the actio iniuriarum. It finally applies this framework to examine how far a modern actio iniuriarum might be developed to protect Article 8 rights. Comparative reference is made to South Africa, where the actio iniuriarum covers all forms of privacy intrusion.