My home is my Goldfish Bowl

February 20, 2019

The Tate Gallery accused of infringing privacy rights of local residents on the South Bank …

Last week, the decision in Fearn v The Board of Trustees of the Tate Gallery [2019] EWHC 246 (Ch) was widely published in newspapers.

A group of owners of flats on the South Bank of London (known as Neo Bankside) brought a claim in nuisance against the Tate Modern Gallery as they considered that the use of an exterior walkway and viewing terrace on the 10th floor of their most recent extension (now known as the Blavatnik building) infringed their privacy rights. The claim was also aimed at section 6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights.

The case makes an interesting read for many reasons, not least because we are free to visit the Tate Modern gallery and witness for ourselves what this conflict is about.

The claimant owners of the respective flats, whilst they are owning flats on different levels in Neo Bankside and with different aspects been visible to viewers of the gallery, all concurred in their perception that being stared at and watched from the Tate Modern’s viewing platform was an unacceptable invasion of their right to privacy. It is necessary to understand that the viewing gallery has an estimated 500,000 to 600,000 visitors per year. Although its opening hours to the viewing platform have been reduced (as a result of the claimants’ complaints) and the south side part of the gallery is closed for some time in the evening, the platform is still open daily and for most of the day.
The claimants gave a fascinating account of their experience of being subject to the viewing platform: from being photographed by tourists (and photos being posted and captioned on Instagram) to being waved at or shown insulting gestures, it became clear that they had to endure much more than mere inconvenience.

Mr Justice Mann agreed, having visited the flats and the platform, that a very significant number of the Tate’s visitors are displaying an ‘interest in the interiors of the flats which is more than a fleeting or passing interest’. ‘That is displayed either by a degree of hearing or study, with or without photography, and very occasionally with binoculars.’ Similarly, having looked from the platform into the flats the judge concurred that one can indeed ‘see all sorts of aspects of the daily living of the occupants of those flats’. But was that enough to justify the closure of the platform?

There is no general right to privacy, but case law acknowledges the concept of privacy in the home. Semayne’s Case from 1604 is widely accepted as the basis for the right of home owners to defend their premises against unlawful entry to their home. This judgment’s famous quote ‘the house of every one is to him as his castle and fortress’ has become synonymous to the concept of privacy in our homes. Whilst Semayne’s Case concerned physical intrusion, the further development of the common law principles left little doubt over privacy going further than just occupation of a home at the exclusion of others.

In the past, cases of interference with homes mainly turned on the Tort of trespass or nuisance, as accepted courses of action to protect property ownership rights. Nonetheless, invasion of privacy in a home can represent actionable nuisance and the question here mainly was whether or not such invasion was actionable.

Mr Justice Mann, evaluating whether the use by the Tate modern is causing a nuisance, turned to the question whether ‘the operation of the viewing gallery is making an unreasonable use of its land, bearing in mind the nature that use, the locality in which it takes place, and bearing in mind the victim is expected to have put up with some give and take appropriate to modern society and the locale’.

The Tate’s argument that the protection of privacy from a viewing gallery had been a matter of earlier planning consultation was rejected and Mr Justice Mann was clear in concluding that an actionable nuisance could arise in cases of breach of privacy from another landowner. The flat owners claimed that occasionally there were deliberate acts of overlooking accompanied by malice, but it had to be agreed that this was not the predominant purpose of the gallery’s viewing platform.

It was acknowledged that the properties are located in a central London urban space which is frequently visited by tourists and ‘an occupier in that environment can expect rather less privacy than perhaps a rural occupier might’. The flats have ceiling to floor glass windows and per se attract external viewers to look into the flats. Mr Justice Mann considered that if the external architecture of the buildings would be that of smaller windows, that it would attract less viewers, and the occupiers ‘would be less likely to consider themselves to be in a goldfish bowl’. He continued: ‘if the claimants have a design which raises the privacy invasion then they have created their own sensitivity and will have to tolerate what the design has created”.

In terms of an unreasonable use of the viewing platform Mr Justice Mann stated that it is not ‘inherently unreasonable to have a 360-degree viewing capability’ from the platform.

The claim was therefore dismissed.

The judgement contains suggestions of how the privacy could be protected by the claimants in lowering their solar blinds, attaching privacy films to the glazing or installation of net curtains in the flats. It is rather surprising to see suggestions of this kind, rather than asking for a closure of part of the viewing platform, from where the issue emanates.

Some claimants had stated during the trial that they consider they needed to sell their flats, if the annoyance continued and from their account of their experience, this is perfectly understandable. Mr Justice Mann states that ‘this is an unusual case’. It certainly is, and it remains to be seen if the claimants will appeal the judgement.

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