2006 was a year with no shortage of celebrity litigation, there have been some landmark decisions that have shaped the law and censured the media's excesses while safeguarding its underlying rights to publish.
The courts kept busy with a string of libel actions featuring film stars (Sharon Stone), politicians (Tommy Sheridan), musicians (Elton John), sport stars (Wayne Rooney, Lance Armstrong) and even The Royal House when on the 21st December the Prince of Wales won a resounding legal victory concerning his privacy as the court of appeal ruled that the Mail on Sunday had infringed his copyright and confidentiality by publishing extracts from his private diaries.
English law has traditionally lacked a general right to privacy, however in France a 1970 statute states "every person has the right to have his privacy respected" or the Spanish Constitution of 1978 implies “The right of honor, personal, and family privacy and identity is guaranteed” and “The law shall limit the use of information, to guarantee personal and family honor, the privacy of citizens, and the full exercise of their rights”.
Now the protection of private lives and private information is one of the fastest-developing areas of the English law, as judges use the Human Rights Act (HRA), which came into force in October 2000. Although the European Convention on Human Rights only incorporates the rights in Articles 2 to 12 and in Article 14 of the Convention, plus those in the First and Sixth Protocols.
Since 1966 people have had the right to bring cases against the British Government in the European Court of Human Rights (ECHR), the international court set up to interpret and apply the Convention. Over the years there have been many cases in which the ECHR has found that the UK has breached the Convention. One reason that there have been so many findings against the British Government is that there was no way that people could get redress for breach of their rights under the Convention in the British courts.
Within the HRA, Article 8 has had a significant effect on the media, it creates a general right to respect for privacy where none previously existed, it offers general protection for a person’s private and family life, home and correspondence from arbitrary interference by the State. This does not simply apply to celebrities or royalty.
The laws of breach of confidence, nuisance, surveillance, etc., apply equally to the media and individuals may be able to bring actions against the media where they have infringed those laws. Actions for libel are of limited use as a means of protecting against intrusions of privacy. If the words relate to a private matter but are substantially true, then an action for libel is likely to be successfully defended.
Copyright can also be used as a way of preventing publication of private papers or pictures, but working out who owns copyright can be a complicated matter. Additional protection is given to a person who commissions photographs for private or domestic purposes. Even if the photographer owns copyright, that person can prevent their publication.
One of the major cases to reach the Court of Appeal has been Michael Douglas & Catherine Zeta-Jones v. Hello Limited, in effect OK! v Hello!, when in November 2000 an injunction was granted in the High Court in favour of OK! against Hello! restraining Hello! until trial from publishing photographs of the wedding of Douglas and Zeta-Jones, the wedding couple had arranged for OK! exclusively to cover the wedding. The Court of Appeal discharged the Injunction in November, and gave its reasons in December 2000.In November 2006 the case was found again on the press because it was to reach the House of Lords. The outcome could be to grant celebrities "image rights" close to those they have in France, allowing them to restrain others from using photographs taken on a private occasion or personal information about them for profit, as if they were a trade secret.
The law protecting confidential information is an important part of Article 8. It has now grown far beyond this, and has recently been used in cases involving celebrities objecting to media intrusion of their private lives. Rather than speak in terms of a right to privacy, the courts have preferred to recognise such a right through actions based on breaches of confidence.
For instance, 19th October 2006, a newspaper published details of what purported to be confidential legal papers detailing damaging claims by Heather Mills McCartney against her estranged husband Sir Paul, who after lurid allegations culled from legal documents apparently drawn up for Mrs Mills McCartney were leaked to the Press Association and then published as a front page exclusive in Daily Mail.
The protection available to individuals must inevitably be balanced against the important right of freedom of expression and disclosure of information in the public interest.
For instance, 19th October 2006, a newspaper published details of what purported to be confidential legal papers detailing damaging claims by Heather Mills McCartney against her estranged husband Sir Paul, who after lurid allegations culled from legal documents apparently drawn up for Mrs Mills McCartney were leaked to the Press Association and then published as a front page exclusive in Daily Mail.
The protection available to individuals must inevitably be balanced against the important right of freedom of expression and disclosure of information in the public interest.
But public interest is a controversial term. Thursday 14th December of 2006, the decision of the court dismissed an appeal by author Niema Ash to overturn an injunction against her unauthorised book about the private life of Canadian folk singer Loreena McKennitt, is being described as one of the most significant ever made for the British press. The court ruled that someone's right to protect their private life outweighs someone else's freedom to tell their story, unless there is a "very real" public interest.
The ruling marks a seismic shift in media law protecting the privacy of the famous, and potentially threatens the lifeblood of tabloids and magazines such as Heat, OK! and Now.
However, Elton John earlier in the year failed to secure an injunction to prevent publication of pictures of him outside his house. While we don't know if he was 'popping out for a pint of milk' (which the court considered to be fair game for photographers in Campbell v Mirror). Freedom of expression is, of course, a right which is also incorporated by the HRA through Article 10. In the context of the media, there will always be tension on the one hand between protecting the right to freedom of expression and a free press with respect to rights of privacy on the other hand.
Whether a right to privacy can be invaded in a public place is one of the particular issues that has been addressed. The Press Complaints Commission (PCC) on its Code of Practice states in a Note: ‘Private places are public or private property where there is a reasonable expectation of privacy’. The Note, however, seems to affect only the unacceptable use of long lens photography.
Two cases in 2004 shifted the balance against the media and in favour of celebrities: a partial House of Lords victory for Naomi Campbell and a win for Princess Caroline of Monaco in the European court of human rights in Strasbourg.
The lords held in the supermodel's case that a newspaper picture of her taken outside Narcotics Anonymous breached her right to privacy. Even though she was in a public place, the fact that she was getting treatment for drug addiction was the sort of information most people would expect to keep private.
The Strasbourg judgment went further in Princess Caroline's case, ruling that taking snatched photographs of her in public places going about her normal activities violated her right to privacy. English judges have since held that the ruling applies not only to photographs but to information about an individual's life.
Use of fingerprints, DNA samples and other samples taken at police stations, telephone tapping, gender identity and sexuality are other issues related to the right to privacy but they cannot be developed in this essay.
Finally, these days Ofcom is to investigate UK broadcasters' coverage of Saddam Hussein's execution after receiving complaints from viewers. The complaints are believed to include criticism of the broadcasters' decision to use audio and video of the former Iraqi dictator being mocked on the gallows by his executioners.
Saddam Hussein was responsible for massive human rights violations, but that can't justify giving him the death penalty, which is a cruel and inhuman punishment as the director of Human Rights Watch’s International Justice Program said. On the other hand, broadcasting the final moments of his death, in my opinion also entails a violation of the right of privacy, because even someone like him deserves to live his very last moments with absolute dignity.
Bibliography:
· Essential Law for Journalists. McNae’s, Oxford.
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