Protecting the Quiet Life
Wendy Outhwaite QC
Protecting the Quiet Life
(Legal Week, March 13 2003)
Not long ago, neither celebrities nor the man on the Clapham omnibus had an effective legal remedy for the invasion of their privacy. Unless a claim could be formulated as some other cause of action, such as breach of confidence, the court was powerless and the individual defenceless.
As a result, journalists could invade a hospital room soon after surgery to interview and photograph a barely conscious actor in pursuit of a tabloid 'exclusive': Gordon Kaye v Robertson . Celebrities and their families could be photographed anywhere, even during private moments: for example, JK Rowling's child reading on the private beach of a hotel; long lens photos of Anna Ford on a public beach; Princess Caroline in a secluded part of a restaurant; Diana, Princess of Wales working out at the gym. Even strip-searching individuals visiting family in prison was allowed: Wainwright v Home Office. Celebrities who were perceived to be misbehaving, such as Jamie Theakston, the children's TV presenter, when he visited a brothel, or Naomi Campbell, who denied using drugs, but then attended a Narcotics Anonymous meeting, were bound to be exposed by the press. Celebrities suspected of criminal activity (most recently, Matthew Kelly and John Leslie) were easy prey. Kiss'n'tell stories by disgruntled former lovers became a tabloid institution.
Slowly - predominantly as a result of the protection of private, home and family life afforded by Article 8 of the European Convention on Human Rights - a legal remedy to prevent or compensate for invasions of privacy has emerged. Ironically, a two tier system is developing, with celebrities being the second class citizens. They have limited rights to privacy. While the right to freedom of expression protected by Article 10 of the Convention does not give journalists carte blanche, a self-publicist has more difficulty in asserting 'privacy' rights.
Nevertheless, celebrities have Convention rights too, and just because the public is interested does not necessarily mean that there is a public interest. Celebrities successes include the Beckhams's injunction preventing publication of photographs of their new home, notwithstanding that they were negotiating a photo deal (Beckham & Beckham v MGN Ltd) and Naomi's £2,500 compensation for photos of her attending an NA meeting (Campbell v Mirror Group Newspapers Ltd ). Celebrity failures include the Court's refusal to be the 'censors or arbiters of taste' thereby permitting a married footballer's affairs to be exposed in the press: Flitcroft v Mirror Group Newspapers Ltd .Perhaps more importantly the privacy of man in the street - literally - is protected. In Peck v United Kingdom a local authority's CCTV system filmed the applicant, who was depressed, walking along a road carrying a large knife, intending to commit suicide. The CCTV footage was distributed to local newspapers and TV for use in a programme assessing the use of CCTV. Mr Peck claimed an invasion of his privacy by the TV and newspapers. The European Court of Human Rights agreed. Although Mr Peck was in a public street, he was not participating in a public event. He was not a public figure. His exposure in the media far exceeded that which he could have foreseen as he walked past surveillance equipment in the High Street. Mr Peck's Article 8 right was breached without justification: there was no public interest reason for the footage to be shown to the public without Mr Peck's consent or, at the very least, his identity being masked. Mr Peck was given ?11,800 in compensation .
Similarly in H (a Healthcare Worker) v Associated Newspapers Ltd the Court prevented the press from identifying the HIV status of a healthcare worker. In Venables v News Group Newspapers the Court prevented the new identities of the child murderers of Jamie Bulger from being publicised, because of the risk of attack.
The Court is particularly keen to protect the privacy of children. In H v H: HM Attorney-General v H a father, who was separated from his children, protested against perceived injustice, in an unacceptable manner, including bomb hoaxes, protests outside courts and protests at the homes of judges. The court would not grant an injunction 'gagging' H in deference to his Article 10 of freedom of expression. However, the father was not permitted to identify his children, who might be harmed by the invasion of their privacy, while protesting.
Of course, no individual has an absolute right to privacy. It must be counterbalanced against freedom of expression. In addition, Article 8 itself is subject to various public interest exceptions, including the prevention and detection of crime. As a result the covert surveillance in order to detect criminal activity (R v Wright & McGregor); the random monitoring of phone calls of patients in high security hospitals (R v Ashworth Special Hospital Authority and Others) and the accessing of previous employer's records and keeping a register of persons considered unsuitable for future work with children: R v Worcester County Council & others, are lawful. Evidence obtained in breach of an individual's Convention rights may even be relied upon in court in the interests of justice. In Jones v University of Warwick the Claimant sued in respect of her wrist injury. The Defendant's insurers, pretended to be market researchers and secretly filmed the Claimant in her home. Ms Jones tried to exclude the video relying on her Article 8 right. The video was admitted, but the Defendant's own wrists were slapped with a costs order to sanction its conduct. Sometimes an otherwise unlawful act can be made lawful by anonymisation: for example, the disclosure of confidential information by pharmacists in the 'Source Informatics' case.
Of course, all eyes are now on the Douglases. In Douglas & Zeta Jones v Hello two actors seek damages for unauthorised photographs taken at their wedding. The photographic rights had already been sold to a rival magazine, which suggests the wedding was not that 'private'. Catherine Zeta Jones was upset by unflattering photographs and disgruntled about a lack of control over her image. This is interesting because the law does not allow copyright in an image: an attempt to control the quality of 'Diana memorabilia' famously failed. Can privacy do what copyright cannot? If so, celebrities rather than paparazzis, are on to a nice little earner.