Developing privacy laws
Privacy and confidentiality laws in England are being forced to evolve due to an increasing number of high profile cases made by celebrities against newspapers and celebrity magazines. The Human Rights Act of 1998 provides for a limited incorporation of the European Convention on Human Rights (ECHR) into domestic law, including a right of privacy. The Act came into force on October 2, 2000. Thus far, the courts have only cautiously implemented the rights. In the last decade more celebrities have taken advantage of obscure and vague privacy laws, and have taken on publications who have, in their eyes, invaded their privacy and confidentiality.
"The financial penalties that a newspaper or magazine can incur for breach of privacy are simply frightening"
And why not give it a go - what do the celebrities have to lose? Regardless of the fact that English law has adopted Article 8, the right to privacy, of the ECHR, judges have been reluctant to set precedents and tighten a very complicated law, in fear of compromising Article 10, the freedom of speech. Consequently publications have been made to pay out large sums of money to the prosecuting party. Overblown damages and huge court costs act as a compromise to the media in one way - still allowing freedom of speech (however, as discussed below, even this is being threatened) - but also as a deterrent - the financial penalties that a newspaper or magazine can incur for breach of privacy are simply frightening.
The reins on free speech being tightenedThings have become increasingly difficult for the media, and in particular for biographers and kiss-and-tell authors, with a recent judgement - McKennitt v Ash & Or (December 2005). But in order to understand the implications of the verdicts delivered by The Hon. Mr Justice Eady in his report of McKennitt, it is first necessary to assess chronologically how judges have been pressured into chipping away at the privacy laws in favour of the celebrity.
A history of privacy laws
Queen Victoria, it is believed, was the first high profile person to sue for breach of privacy, after her linographs were sold by her developer. However, the earliest and simplest definition of privacy was provided by Judge Cooley in a 1888 paper. He defined privacy as, “the right to be left alone”.
Before The Younger Report, in 1972, there had only been a relatively small number of cases where privacy had seriously been breached. Indeed, before the 1960s the potential friction between freedom of speech and freedom of privacy was barely felt, as there existed a quid pro quo arrangement; the justice system and the media had an unspoken agreement which allowed publication of certain aspects of a person’s private live, but nothing too sensational or damning.
The Younger Report set out to tighten the loose reins of the media, in terms of their publishing defamatory articles and intrusive photographs. “Privacy is a basic need, essential to the development and maintenance both of a free society and of a mature and stable individual personality”, the report suggested. However, The Younger Committee, in its Report of the Committee on Privacy, decided that the word privacy could not be defined satisfactorily, and in essence the report had a more threatening bark than bite.
The modern problem
It was Andy Warhol who coined the word “superstar” which typified the zeitgeist of the 1970s. With the horrors of the Second World War, a generation forgotten, and technology constantly evolving, people began to aspire to celebrity status. With the excess of the 1980s there came a stronger desire to see how the mega rich lived their charmed lives.
"In the last decade, as a consequence of the voyeuristic, cloy, coverage of Diana, things have begun to change so that the celebrity can have more privacy and support as dictated by a number of court rulings"
The life and premature death in 1997 of Princess Diana epitomised how hungry the public had become for glimpses of celebrity life, and how poorly supported celebrities at that time were, regardless of The Calcutt Committee‘s Report of the Committee on Privacy and Related Matters (1990) et al. The media were more than happy to feed and tantalise readers by printing intrusive photos of the Princess, as they knew it would guarantee sales. She was pursed by paparazzi at every opportunity, and while Diana’s death caused public outcry (the paparazzi were blamed), simultaneously the public wanted the gory truth. Princess Diana’s death was the subject of more newspaper coverage than the most dramatic events of the Second World War and set a media record, according to Durrants Press Cuttings agency, who monitor nearly 200,000 newspapers and magazines a year. Indeed, no other subject in the agency’s archives - which go back to 1880 - compared to the coverage devoted to Diana’s death, funeral and subsequent stories.
The details of Diana’s death were published at a time when journalists still enjoyed relative carte blanche. In the last decade, as a consequence of the voyeuristic, cloy, coverage of Diana, things have begun to change so that the celebrity can have more privacy and support as dictated by a number of court rulings.Post Diana
A number of other factors have come into play. Now, through communications technologies, the Web, CCTV, digital and phone cameras, more people are likely to gain an opportunity to snap footage of a celebrity. Furthermore, the word celebrity has become largely generic, and modern society is saturated with celebrities. All sorts of people - from reality TV contestants, teenage pop stars, chefs, housewives, vets and DJs - are deemed celebrities. With the amount of “celebrities” there are nowadays, the number of rude, lewd and scandalous articles we find in our newspapers is not surprising.
Important cases in England
In May 2003 Michael Douglas and Catherine Zeta-Jones won a court case which lasted three years, “shoe-horning” the problem, again indicating the hesitancy of the courts to pen any new rulings on privacy in indelible ink. The Hollywood couple sued Hello! magazine after unauthorised pictures appeared after they had signed a £1m agreement with magazine rival OK! to print exclusive photographs. Even though the original damages claim was £14,000, Hello! faced a £4m bill, because they were ordered to pay 85% of the court costs.
Two months after the Douglases’ case, and perhaps motivated by their victory, radio DJ Sara Cox followed suit in bringing a privacy case to a successful conclusion. Cox was on honeymoon when she and her husband were photographed naked on a private beach. The photographs were subsequently published by The People newspaper, and Cox brought proceedings for damages against the newspaper and against the agent for the photographer. Sara Cox received £50,000 in damages, and the publishers, once again, were lumbered with her legal costs, which ran to several hundred thousand pounds.
In May 2004 Naomi Campbell successfully sued the Daily Mirror for breach of confidence after it published photographs of the model outside a Narcotics Anonymous clinic in 2001. After a three year battle Campbell won damages of £3,500. MGN Ltd, owners of the Mirror, however, were landed with a legal bill over £1m, as Campbell had funded her privacy appeal on a CFA (Conditional Fee Arrangement). The to and fro nature of the case again highlighted the uncertain legal ground being trodden, and the fact that Campbell won, coupled with the CFA factor, made the industry flinch and shudder. Worse was to come for the media.
Princess Caroline of Monaco
One of the most significant privacy cases in recent years - Von Hanover v Germany (June 2004) - was conducted in Strasbourg. Princess Caroline of Monaco, an “international celebrity” whose every move was of interest to the tabloid press, brought legal actions in a number of countries to try to prevent the publication of photographs of her private life. These photographs typically showed her engaging in ordinary activities in a variety of public places. Caroline complained that she was hounded by paparazzi, and therefore the press was not, she argued, performing its essential role in a democratic society but was an “entertainment press”, seeking to satisfy its readers voyeuristic tendencies and make huge profits.
"The German government contested that German law was halfway between the powerful protections of French privacy law, and the weak privacy protection in England"
Princess Caroline was successful in restraining the publication of photographs taken of her children and photographs taken in “secluded places”. The German government defended its national law. They contested that German law was halfway between the powerful protections of French privacy law, and the weak privacy protection in England, before arguing that the role of the press as watchdog could not be narrowly interpreted and that German law struck a fair balance between privacy and freedom of expression.
A unanimous Court of Human Rights disagreed. Their decision rested on three points:
1. The “zone of interaction of a person with others, even in a public context” fell within the sphere of private life (paragraph 50), and within the scope of Article 8 (paragraph 53).
2. Although the interferences were not by the State but by private bodies, Article 8 was relevant because the State owed positive obligations which “may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves” (paragraph 57). This also applied to the protection of an individual’s picture against abuse. When considering these positive obligations to protect private life, a balance had to be struck between privacy and freedom of expression.
3. The publication of the photographs did not contribute to public debate (paragraph 58).
In Judge Zupancic’s judgment he complained that the ECHR courts had, under American influence, “made a fetish of freedom of the press”, and expressed the view that it was time that the pendulum swung back to a different kind of balance between what is private and what is public.
This case was also a clear warning to the English courts that they have a positive obligation to protect the privacy rights of individuals; that the ECHR requires the development of a domestic law that protects not only “private life”, but also the “right to control the use of one’s image”.
Loreena McKennitt
Post Caroline, the British media has been intently monitoring whether English courts will heed Strasbourg’s example. The answer came when Loreena McKennitt, a Canadian folk singer, visited the High Court in December 2005. Ms McKennitt brought an action for breach of confidence against her former friend Niema Ash over publication of the book Travels with Loreena McKennitt: My Life as a Friend. McKennitt was seeking:
1. A declaration from the court that in publishing the book Ash, and her publishing company Purple Inc Press Ltd, had breached her confidence;
2. An injunction permitting the author from benefiting from the sale of the book; and
3. Damages, although she accepted that Ash was in a state of penury, and therefore would not be able to afford much.
The Hon. Mr Justice Eady referred to Von Hanover v Germany, and adhered to its approach on privacy rights. “The case is notably especially, perhaps, for the width of the notion of ‘private life’ which the European Court of Human Rights is now prepared to recognise” (paragraph 50). Further, “the concept of private life, as protected by Article 8, would extend to matters of personal identity including photographs” (paragraph 50).
Justice Eady said: “Celebrities fall from time to time like anyone else and every peccadillo or foible cannot be exposed in the supposed public interest.” He continued:
(A) trend has emerged towards acknowledging a ‘legitimate expectation’ of protection and respect for private life, on some occasions, in relatively public circumstances. It is no longer possible to draw a rigid distinction between that which takes place in private and that which is capable of being witnessed in a public place by other persons (paragraph 50).
Justice Eady ruled that the case involved two fundamental but conflicting rights: Ash's freedom of expression; and McKennitt's right to privacy. Neither right, he stated, had precedence over the other. Rather, “proportionality” was required to resolve the conflict between these competing interests.
Justice Eady granted the injunction, preventing Ash from publishing specific passages in the book, including: detailed accounts of the emotional state of McKennitt following the death of her fiancée; “household minutiae” details of her secluded Irish cottage; intimate conversations with a trusted friend; negotiations over a recording contract; and settlement of a previous legal action.
This case is important as it consolidates a number of leading international judgements, which have sought to address the scope of the right to privacy. It also recognises that even information obtained through a social relationship must be protected - you cannot reveal aspects of a relationship you may have shared with another person if doing so violates that person's privacy.
The gloomy conclusion
The McKennitt case has taken the Caroline case one step further. As Mark Warby QC suggests in his article, Privacy Law in Transition, when referring to Caroline:
This is a striking decision…the publication of photographs and information about private life will only be justifiable if it could somehow contribute to a serious debate on matters of political or social significance. This approach would…bring about something of a revolution, if applied to the daily fare of British tabloid journalism. Caroline, some say, will usher in a much more restrictive culture in English law, hitting first of all those (many) publications which trade in celebrity snapshots, and then the ‘kiss and tell’ story (paragraph 23).
Philip Conway, a lawyer with Davenport Lyons, which represents some leading newspapers, said that such rulings were already making their presence felt. “It is having an impact on the world of kiss and tell and these kinds of stories are going to get more and more difficult,” he said.
In the same vein, Duncan Lamont, of the law firm Charles Russell, said that newspapers took such complaints “much more seriously” than they have done in the past. “They know that celebrities will be granted a much larger slice of protection than they could have imagined five years ago”.
The parameters have now been established. McKennitt’s victory has sent shock waves through the legal profession, and through the media world, and has already led to exposés on other celebrities being spiked. The revolution has begun.
Advice to editors and journalists
Editors must be sure that the photographs or articles have been approved by the photographed/written about party. Indeed, McKennitt ensured the court that, had she received a copy of Ash’s book prior to its publication, she would have edited and censored it accordingly, and the case would never have gone to court.
It is true that sensationalist articles will be harder to print, or rather more expensive. But with the number of celebrities around it should only be a case of being discerning, and waiting for one of the many to slip up. It is true to say without the media spotlight many celebrities would not achieve their status, therefore it would only be a matter of time before they would crave attention again.
Should a case go to court editors must be able to prove that the questioned articles or photographs are of “public interest”. According to the McKennitt judgment, once a “reasonable expectation of privacy” is established, the “three limiting principles” to consider are: 1. Is the information in the public domain? 2. Is the information useless or trivial? 3 Is there a public interest in disclosure?"Editors and journalists should be on their guard, and be as objective as they can"
The public is often interested in details of celebrity private lives, which, as The Hon. Mr Justice Eady suggested, “are of no real concern of theirs”. Further, claims to public interest in publications made by the media must be “scrutinised with care”. In short: editors and journalists should be on their guard, and be as objective as they can.
Labels: Catherine Zeta-Jones, Loreena McKennitt, media law, Michael Douglas, Naomi Campbell, Niema Ash, Princess Caroline of Monaco, Princess Diana, privacy, Queen Victoria
