Privacy cases in the UK continue to pose a significant challenge to press freedom, says Gavin Millar
No one would describe coverage of Max Mosley’s subterranean trysts or Sienna Miller’s cleavage as cutting-edge investigative journalism. But Mosley and Miller’s actions against the media are likely to have a wider chilling effect on press freedom. As Mosley takes his case to Strasbourg and Miller launches proceedings against the paparazzi, there is a very real threat that editors will start spiking formerly routine stories for fear that the lawyers will pounce.
The right to privacy, Article 8 of the European Convention on Human Rights, was initially designed to prevent state interference in our private lives. So how has it become a tool for celebrities to limit press freedom?
The answer lies in the state’s ‘positive obligation’ to protect human rights. Strasbourg has long held that Article 8 can impose a duty on courts to protect privacy. Now it says this means protection against unjustifiable media intrusion into people’s lives.
In 2004, it ruled that the German Courts should have protected Caroline Von Hannover against publication of photos of her in public. It sympathised with her complaints of harassment by the paparazzi and the lack of public interest in the shots. Whether she was ‘in’ or ‘out of’ the public eye when photographed was secondary. Private life included a zone of interaction with others, even in public. Recent Strasbourg cases have emphasised that this zone is even larger for an ordinary person and that Article 8 gives a right to one’s own image and its publication. The latter has to be justified.
Our media fretted that our courts would interpret the ‘positive obligation’ in a similar way under the Human Rights Act 1998. This was because judges had to decide cases ‘compatibly’ with Strasbourg principles.
Section 12 of the Act requires them to have ‘particular regard to…freedom of expression’ for journalists in this sort of situation. But it has not curbed the predicted judicial enthusiasm for ‘Von Hannover’s law’ in England.
In fact our judges did not even wait for the landmark Strasbourg ruling.
In 2001, the Mirror pictured Naomi Campbell in the street leaving Narcotics Anonymous to illustrate its attack on her for denying drug use. A month before Von Hannover, the House of Lords ruled the picture an unlawful invasion of Campbell’s privacy. It was akin to revealing details of medical treatment. So even though she was in the street, the backdrop meant that she was still in her ‘private zone’. The same law would not, said Baroness Hale, have prevented publication of a celebrity ‘popping out’ for a pint of milk.
In Campbell, the Law Lords adapted our long-standing law of ‘breach of confidence’. They said that it was no longer necessary to show a relationship of confidence in order to have a ‘privacy’ claim (always an unlikely prospect between a celebrity and a tabloid). Instead a remedy was possible if there was a ‘reasonable expectation of privacy’ in the material published. If so, cases had to be decided by balancing the conflicting rights to privacy and freedom of expression under Article 10.
But this is an uncertain task. Judges have to ‘value’ the two rights at stake so that the more valuable wins in the end. Here are some recent, notable examples of how this has worked.
In 2007, the son of an African president claimed against Global Witness. The NGO had published details of his credit cards showing public money being used to fund his lifestyle. The claim failed because of the public interest in exposing the impropriety of the officials involved.
Similarly, Associated Newspapers were allowed to publish the account given by Lord Browne’s gay lover’s account of how BP resources were used to establish a business for him. Either Browne had no reasonable expectation that this could be kept secret or the public interest in the story won.
Earlier this year, however, the Court of Appeal found a case to answer when JK Rowling’s 18-month-old son was photographed in the street by an agency. The child, though not the mother, was in his privacy zone and the pictures of him were of questionable public interest.
And then, in July, the High Court found no public interest in the News of the World’s surreptitious visit to Max Mosley’s downstairs party. He got £60,000 in damages, though the ‘irresponsible’ journalism did not attract a penal award.
Section 12 of the Human Rights Act at least specifies that prior publication of the private information can deny the claimant a remedy. So Mosley failed when, earlier, he applied for an injunction to remove a film clip of the S&M session from the paper’s website. In the first 24 hours, there had been over a million viewers. Reluctantly the court held that there was no longer any reasonable expectation of privacy.
These developments have encouraged celebrity lawyers to be more creative.
Max Mosley is applying to Strasbourg for a ruling that the positive obligation necessitates a law forcing our media to notify its victims in advance. This would enable them to apply for a pre-publication privacy injunction. Strasbourg has always styled these as censorship that should only rarely be countenanced. So Mosley’s lawyers may be on a bridge too far. But in the current climate, who knows?
And after a series of ‘one-off’ triumphs against prying photo agencies and publishers, Sienna Miller’s lawyers are now using the Protection Against Harassment Act to sue Big Pictures. They allege a ‘course of conduct’ which the agency ought to have known was harassment of her by its photographers.
The more chances a claimant’s lawyers give the judges, the more likely it is that some really bad law will be made at some stage. Perhaps even worse than Campbell v MGN.
As in Editions Plon v France, where Strasbourg upheld an injunction preventing publication of a book telling the French how the late President Mitterand had misled them about his ill-health. Or Hachette v France, where a court forced a newspaper to tell its readers that a photo of the Prefect of Corsica, murdered in the street, was being published without the consent of his family who considered it an intrusion into their private lives.
The worrying thing is that when it comes to privacy, we still have not caught up with the rest of Europe.
Gavin Millar QC is a leading barrister in media law
