Fearn & Kraftman & McFadyen & Urquhart -v- The Board of Trustees of The Tate Gallery 


The claimants are the owners of flats in a building adjacent to the Tate Modern museum. They brought a claim in nuisance under the Human Rights Act 1998 to protect their rights of privacy. 

The claim stems from the viewing gallery within the Tate Modern that allows visitors to experience a 360 panoramic view of London. Controversially, the panoramic view includes the block of flats occupied by the claimants. The block of flats is extensively glassed to the extent that visitors of the viewing gallery are able to see the inside of the claimants’ flats. The court heard evidence that some visitors have taken photographs and filmed the occupiers inside the flats. The court also heard evidence that some visitors used binoculars to look look inside the flats. 

The claimants sought injunctive relief, inviting the court to order the Tate Modern to prevent visitors of the gallery from “observing” the claimants’ flat from a specified area within the gallery. The court heard that 5.5m people visit the Tate each year and approximately 500,000 visit the viewing gallery annually.  

The claimants argued that their claim arises under the law of nuisance which is further protected by s.6 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. The claimants pursued the argument that Tate Modern is a public authority for the purpose of the Human Rights Act and therefore the Human Rights Act can be directly enforced against Tate Modern. 

The presiding Judge accepted evidence that visitors to the gallery were looking inside the flats of the claimants and “displayed an interest in the interiors of the flats which is more than a fleeting or passing interest”. The Judge held that the steps taken by Tate Modern to prevent visitors from taking photographs or filming were inadequate to address the concerns of the claimants. 

The claimants accepted that the Tate Modern cannot be considered a “core” public authority, but maintained that the Tate performs functions of a public authority pursuant to s.6(3)(b) of the Human Rights Act 1998. The Tate Modern was established by the Museums and Galleries Act 1992. Indeed, the Tate argued that is it not a “core” public authority.   

The Judge noted that there is no single test in determining if a body can be described as a “public authority”. Rather there are series of factors that should be present for a body to be considered a “public authority”. In his judgment, Mr Justice Mann held that the fact that an organisation offers services for the public benefit does not make it a public authority. It was acknowledged that the Tate provides a public service to the nation, but the Judge stressed that this is not determinative in and of itself. 

In his judgment, Mr Justice Mann stated that although the Tate was founded by an Act of Parliament in 1992, prior to the Act the functions of the Tate were being carried out by other groups and organisations. Those organisations were not considered pubic authorities. Thus, it is unlikely that the 1992 Act intended to transform Tate into a public authority. 

It was noted that the Tate is only partly funded by the public — in fact the majority of its funding does not come from the State and there is no statute requiring the State to provide funding, only that the Secretary of State “may” provide funding. Mr Justice Mann said “the more a body is publicly funded, the greater the fore which can be given to this element, and the converse is true.” The Judge noted that public authorities are required to act only in the public interest and statutory constitution. This cannot be said of the Tate Modern.

The degree of control by the State was also considered by the court — Mr Justice Mann noted that although there is a degree of State control, that control is mostly restrictive rather than a positive control. The State control is to a greater extent concerned with the public funding. The supervisory control is less significant.      

Mr Justice Mann concluded that the Tate was not exercising functions of a public nature. Thus the claim of privacy under the Human Rights Act fails. Such privacy claims under the Human Rights Act can only be brought against “public bodies”.   

The Judge noted that it is possible for a person to act in contravention of Article 8 by prying into the home of another, whether or not the prying is done by equipments of photography. However, as noted above, the prying must be done by a public authority for it to give rise to action under the Article 8.

In addition to relying on the Human Rights Act, the claimants also relied on the law as it relates to nuisance. The claimants sought to pursue a claim in nuisance by arguing that the act of looking into their homes was an actionable nuisance claim. Although a claim in nuisance is a tort claim and generally considered to be a cause of action that protects land, it is was accepted by Mr Justice Mann that a claim in nuisance could potentially be used to protect privacy as in this particular case. The Judge however acknowledged that not all overlooking or prying becomes a nuisance. Whether or not it is an actionable claim in nuisance will depend on the facts of the case, including the locality, nature of the act complained about, recurrence and whether the offending party is using his land unreasonably.

In deciding the claim in nuisance, Mr Justice Mann stated that given the urban locality of the buildings the claimants can reasonably expect less privacy. The Judge gave an example of what could be considered a nuisance in a non-industrial area — the establishment of a “noisy, smoke-emitting foundry”. Further, Mr Justice Mann held that despite the installation of a viewing gallery the Tate were not using their land unreasonably.

There were questions raised about whether the developer’s decision to build the structure with more windows and less walls in that locality created the occupiers’ own sensitivity which they will have to tolerate. The Judge noted a number of remedial steps which the owners could employ to protect their privacy, including, using curtains, blinds and privacy film. However, in conclusion, the Judge held that there is no actionable nuisance and thus the claimants’ case fails. 

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