This case, Kaye v Robertson [1990], is about a newspaper secretly entering a hospital room to get photos and an “interview” from an injured actor, raising the issue of privacy. Given below is a summary.

• Court: Court of Appeal (Civil Division), 16 March 1990
• Citation: [1990] EWCA Civ 21; Reported as [1991] FSR 62
• Judges: Glidewell LJ, Bingham LJ, Leggatt LJ
• Areas of Law: Privacy, Malicious Falsehood, Defamation (Libel), Trespass to the Person (Battery – argued but not established)

Key Case Facts: Kaye v Robertson

In January 1990, Gordon Kaye, a famous TV actor, suffered severe head injuries in a car accident and was recovering in a private hospital room.

Access to his ward was restricted to protect his health.

A journalist and photographer from the Sunday Sport ignored these restrictions, entered his room without permission, spoke to him, and took photos—using flash—while he was mentally impaired and unable to give informed consent.

They intended to publish an “exclusive interview” and photographs.

The High Court granted an injunction to stop the publication. The defendants appealed.

Issues Before the Court of Appeal

Since English law recognized no general right to privacy, Kaye’s lawyers had to rely on existing causes of action. The court considered whether publication could be restrained under:

• Libel
• Malicious falsehood
• Trespass to the person
• Passing off

Court’s Findings in Kaye v Robertson

The judges said clearly that English law does not give a person a legal right simply to protect their privacy, even though this case shows such a right is badly needed.

Libel: The intended article might be defamatory, but it was not clear enough to justify an emergency (interim) injunction.

Trespass/Battery: The flash photos were upsetting, but there was no clear proof of physical injury. It couldn’t legally count as battery, so no injunction could be based on it.

Passing off: Passing off protects traders and commercial goodwill. Kaye was not acting as a trader selling a product or endorsement. So, this claim failed.

Malicious falsehood: This did work.

The article clearly suggested Kaye had freely agreed to the interview and photos. That was false, and the journalists knew or should have known he couldn’t give real consent. This could cost Kaye money, because other newspapers would have paid a lot for his first true interview later. Damages in these circumstances would not be enough; so, an injunction was justified.

Final Order:

The Court cancelled the very wide earlier injunction that completely banned using the photos and words.

It granted a narrower injunction. The newspaper was not allowed to say or suggest that Kaye had voluntarily agreed to be interviewed or photographed in hospital.

The photos, tapes etc. would be held safely by the defendants’ solicitors and only used in a way that obeyed this injunction.

Why this Case is Important?

It is a famous example showing how badly English law lacked a proper “privacy” right at that time. Judges strongly said this was a “monstrous invasion of privacy,” but they could only act through malicious falsehood, not privacy law.

The judges clearly called on Parliament to create a proper law to protect privacy.

You may refer to the full case judgment here:

https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/1990/21.html

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