Private lives, public obsession

Just because something interests the public doesn't mean it is in the public interest to publish it.

Barbara Hewson

Topics Politics

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The UK tabloid the Mirror was beaten in a recent privacy case brought by supermodel Naomi Campbell, after it exposed details of drug therapy she was undergoing.

The Mirror says it will appeal – but judges are likely to sympathise with Campbell, who is trying to beat an addiction to drugs. Some media pundits belittled her case, labelling it a hollow victory, given the paltry damages of £3500 awarded (1). But the phenomenon of the angry celebrity, wealthy enough to sue a substantial corporation and determined to fight for privacy, is here to stay.

Slowly but surely, the media are being forced to recognise that they cannot have it all their own way. Article 10 of the European Convention on Human Rights, 1950 (the right to give and receive information) has to make room for Article 8 (right to respect for one’s private life, which includes a right to physical and moral integrity). These rights were formally introduced into UK law by the Human Rights Act 1998.
In 1891, Oscar Wilde – a celebrity who devoted much attention to promoting his public image – said of the English press: The tyranny that it proposes to exercise over people’s private lives seems to me to be quite extraordinary. The fact is that the public have an insatiable curiosity to know everything, except what is worth knowing. Journalism, conscious of this, and having tradesman-like habits, supplies their demands…. The private lives of men and women should not be told to the public. The public have nothing to do with them at all.’ (2)

Today this is read as a coded plea for gay men like him to be let alone. But Wilde’s passionate defence of privacy strikes a chord with many contemporary victims of press intrusion.

Recent ‘celebrity privacy’ cases have included Douglas & Zeta Jones v Hello! Ltd (3); Beckham v MGN Ltd (4); A v B plc & C (5); and Theakston v MGN Ltd (6). The first two cases involved celebrities trying to stop the publication of unauthorised photographs, and both scored notable successes. The next two cases involved men trying to keep details of their sex lives out of the press, but were unsuccessful.

There have also been cases where those either convicted of, or unsuccessfully prosecuted for, serious crimes have sought anonymity: such as Venables v News Group Newspapers Ltd (7), where the president of the Family Division made a unique worldwide, permanent ‘gagging order’ – to protect the identities, present and future whereabouts, and appearances of Jon Venables and Robert Thompson, who as 10-year-olds murdered two-year-old Jamie Bulger in 1993.

So what is happening to press freedom?

Firstly, it seems that courts will protect commercial agreements made with the express object of preventing unwanted publicity. Douglas & Zeta Jones agreed to give OK! magazine exclusive rights to their wedding photos – but rival magazine Hello! got hold of photos taken surreptitiously. The court initially granted an interlocutory injunction restraining publication of the illicit pictures, but that was discharged later, on the basis that OK! had acquired the rights to the photos and could be compensated by Hello! in damages. The legal action continues.

Lord Justice Sedley said: ‘The law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.’ (8)

In the Beckhams’ case, the footballer David and his popstar wife Victoria had extensive work done on their new house, including unusually extensive security arrangements. They had received threats in the past and feared their child might even be kidnapped. Their builders signed a confidentiality agreement – but somebody obtained photographs of the interior, which the Mirror wished to publish. The couple got an injunction prohibiting publication.

Sex, however, throws some judges into confusion. At the end of 2001, Jamie Theakston, a BBC TV presenter, got drunk with his mates and ended up in a ‘strip club’ (in fact, a brothel) in Mayfair, London. He was led to a room where he was partially undressed, and engaged in sexual activity (unspecified) with one or more prostitutes. Photographs were taken, and Theakston left. Later, one of the prostitutes threatened to take the photographs to the papers, if he didn’t pay money.

In the ensuing litigation, this was portrayed as blackmail – a serious offence that has a maximum prison term of 14 years, and which is defined as making an unwarranted demand with a view to gain, with menaces.

Theakston failed in his bid to keep the story out of the papers. Mr Justice Ouseley accepted that the incident had the appearance of blackmail rather than (as the Sunday People’s barrister put it), ‘a naive, crude but understandable attempt at the collection of unpaid fees’. But the judge said that a brothel is not a private place, and no obligation of confidentiality arose. Interestingly, he drew the line at publication of the photographs, ruling that this interfered with the integrity of Theakston’s personality. Publishing photographs of people in a drunken, semi-naked state can lead to suicide (9), so the judge was right to be cautious.

But what went on in the brothel was either private, or it wasn’t. Normally, people cannot complain under English law if they are photographed in a public place. The judge’s decision on the Theakston photos seems inconsistent with his previous reasoning. If publishing pictures of someone having sex is an unjustifiable invasion of their privacy, amounting to a violation of their moral integrity, doesn’t this confirm that sexual activity – whether in the local brothel or in the comfort of your own home – really is private?

The judge’s decision does not consider the long-established rule that a victim of blackmail is entitled to have his anonymity protected by the courts. This rule goes back a long way: if Wilde had had the sense to prosecute the rent boys who blackmailed him in the 1890s, he could have kept his name out of the papers.

In another case involving prostitute blackmail in 1975, R v Socialist Worker Printers And Publishers Ltd And Another, ex p Attorney-General (10), a newspaper disobeyed a judge’s order that the victims’ anonymity be protected, and was punished for contempt of court. Lord Widgery said: ‘by destroying the confidence of witnesses in potential future blackmail proceedings in the protection which they would get, there was an act calculated to interfere with the due course of justice.’

This approach would not infringe Article 10.2 of the European Convention on Human Rights, which states that freedom of speech may be restricted ‘for the prevention of disorder or crime’ and ‘for the protection of the…rights of others’. Indeed, Article 17 of the European Convention (Prohibition of abuse of rights) provides that nobody may engage in activity aimed at the destruction of a convention right. Blackmail is an abuse of rights, and could not justify the invasion of anybody’s privacy.

The judge assumed that Theakston could have negotiated a ‘confidentiality clause’ in his arrangement with the prostitutes – a naive assumption, to say the least. And what about the legal rule, known to every punter and student of the law, that a contract for the services of a prostitute is illegal and unenforceable, being against public policy? (11) The courts have yet to review this question – though Mr Justice Jacob recently decided in a tax case that the provision of escort services is subject to Value Added Tax! (12)

Ironically, prostitutes’ lobbyists claim that sex workers are discriminated against, because they are denied the full protection of the law – they also claim that prostitutes provide a ‘caring service’ to their clients. So why shouldn’t prostitutes have the same duty of confidentiality as a doctor, chiropodist or beauty therapist? The courts have failed to grapple with this elementary point. Instead, they refer to the Victorian distinction between sexual activity in marriage (private) and sexual activity outside marriage (not always private). This is unconvincing.

Mr A’s case also involved an allegation of blackmail. He was married, but had ‘flings’ with two other women, C and D. When relations cooled, the women threatened to divulge the existence of the affairs (plus ça change…). C was apparently aggrieved to learn that A was married. She went to the papers. A claimed that C telephoned, demanding £3000. He went to the police, complaining that she had tried to blackmail him. D (a lap dancer) then rang A, and ‘suggested that he give her £5000 for her story’. The Court of Appeal disagreed with Mr Justice Jack, who had prohibited publication. Jack had concluded that the affairs were confidential, and that the proposed articles contained many salacious details intended for the prurient. Independent columnist David Aaronovitch decried the women as ‘mercenary bimbos’. ‘Enlist me in the army for press freedom so that I too can wreck someone’s life for no good reason’, he wrote (13).

The Court of Appeal’s reasoning is hard to follow. It accepted that, in many cases involving well-known figures, ‘it would be overstating the position to say that there is a public interest in the information being published’. Nevertheless, the public ‘have an understandable and so a legitimate interest in being told the information’. This doesn’t follow. Just because I’m nosy doesn’t mean I am entitled to information about other people. Just because something interests the public doesn’t mean it is in the public interest to publish it.

The European Court of Human Rights acknowledges that the press’ role as ‘public watchdog’ is to report on matters of serious public concern (14). But the press cannot seriously claim to be acting as public watchdog when it publishes any old rubbish. The Court of Appeal says that if newspapers could not publish what interests the public, there would be fewer newspapers – which would not be in the public interest. Many would disagree with this. The idea that democracy will collapse if tabloids cannot publish tittle-tattle is clearly absurd.

By this flawed route, the judges concluded that details of A’s sexual life could be published to the world. ‘It is not self-evident’, the Lord Chief Justice said, ‘that how a well-known premiership football player, who has a position of responsibility within his club, chooses to spend his time off the football field does not have a modicum of public interest. Footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example’. Really? As Duleep Allirajah has argued on spiked: ‘Should we look to David Beckham or Michael Owen for moral guidance? Certainly not.’ (15)

According to David Aaronovitch, ‘A footballer may be rich and famous, but he does not exert power over our lives. He plays football, goes on strike, appears in ads for grooming products and that’s it’ (16). Young people might aspire to footballers’ pay packets, but they have few illusions about their idols’ muddy feet and human imperfections – so why are judges falling for the ‘footballers-as-role-models’ line? Perhaps they are trying to show how in touch with modern culture they are – or maybe they’re in awe of the press. Amid the confusion, the right of a complainant of blackmail to have his anonymity protected was not examined.

Naomi Campbell’s case was the first ‘celebrity privacy’ case to make effective use of the Data Protection Act 1998 (17). This complex legislation caught the Mirror napping. Campbell was surreptitiously photographed, emerging from a Narcotics Anonymous (NA) meeting – and so complained about publication of details of her drug therapy. The Act protects a person’s personal data, which means data relating to a living individual (the data subject) who can be identified from those data. It includes any expression of opinion about the individual.

A data controller is a person who determines the purposes for which, and the manner in which, personal data are processed (18); in Campbell’s case, the Mirror was the data controller – and a data controller must comply with the Data Protection Principles (19). The First Principle requires that data be processed fairly and lawfully and may not be processed unless, in the case of personal data, at least one of the conditions in Schedule 2 is met (20). In the case of sensitive personal data, at least one of the conditions in Schedule 3 must also be met. Sensitive personal data includes information as to a person’s ‘(e) physical or mental health or condition; (f) sexual life’ (21). The Mirror couldn’t jump through so many hoops.

Mr Justice Morland concluded that Campbell’s drug therapy constituted sensitive personal data – ruling that taking surreptitious photographs was unfair, and contravened the First Data Protection Principle. He also concluded that publishing details of her attendance at NA meetings was unlawful, because they were obtained in breach of confidence. The Mirror came unstuck over the conditions in Schedules 2 and 3. Schedule 2 has a provision, which permits processing of personal data when it is necessary for the purposes of legitimate interests pursued by the data controller, except where it is unwarranted by reason of prejudice to the data subject’s rights and freedoms or legitimate interests.

The judge assumed, for argument’s sake, that the Mirror was pursuing a legitimate interest. But he concluded that publishing Campbell’s therapy details was an unwarranted intrusion into her right of privacy.

As for Schedule 3: this permits sensitive personal data to be processed if, for example, the data subject has given explicit consent (which obviously didn’t apply in Campbell’s case). The only applicable condition was prescribed in a statutory instrument (22), which permits disclosure of sensitive personal data if disclosure:

(a) is in the substantial public interest;

(b) is in connection with (i) the commission by any person of any unlawful act (whether alleged or established); (ii) dishonesty, malpractice or other seriously improper conduct by, or unfitness or incompetence of any person (whether alleged or established), or (iii) mismanagement in the administration of, or failures in the services provided by, any body or association (whether alleged or established);

(c) is for a literary, artistic or journalist purpose; and

(d) is made with a view to publication and the data controller reasonably believes that publication is in the public interest.

The judge found that these conditions were cumulative. Overall, he concluded that the Mirror failed to satisfy conditions (a), (b) and (d). The Mirror argued that it was exposing wrong-doing by Campbell (ie, her drug-taking). The judge replied that Campbell’s therapy was to keep her off illicit drugs. He found that (d) imposed an objective test: the Mirror’s subjective belief that publication was justified was not enough.

A recent survey on privacy and the media conducted by Leeds University for the BBC and broadcaster regulators found that ‘85 percent of those questioned thought there should be little or no coverage of the private lives of celebrities’ (23). Leeds University questioned 1000 people – when some judges make assumptions about what the public wants to read, can they be so sure that their assumptions are shared by the public? What if Theakston or Mr A had followed Campbell’s route, and cited the Data Protection Act? The Data Protection Act, based on the law of the European Union, is clearly designed to protect data about one’s sex life, as well as one’s medical details.

If tabloids want to divulge salacious and prurient accounts of intimate sexual behaviour in future, against the wishes of one of the participants, they may find European Union law barring their path with a sword of flame. Campbell may be the tabloids’ Nemesis.

Barbara Hewson is a barrister at Hardwicke Civil

Read on:

spiked-issue: Privacy

(1) The Times (London), 28 March 2002; ‘Newspaper rivals claim the victory after judgment’, Independent, 28 March 2002

(2) The Soul of Man under Socialism, Oscar Wilde, 1891, p58-61

(3) See case report [2001] QB 967

(4) Unrep., Eady J, 28 June 2001

(5) [2001] 1 WLR 2341 (reversed on appeal, 27 February 2002)

(6) [2002] EWHC 137

(7) [2001] 2 WLR 1038

(8) Judgment, para. 126

(9) ‘Girl’s suicide over naked pictures’, London Evening Standard, 29 April 2002

(10) [1975] QB 637

(11) See Chitty on Contracts, Vol 1, 28th ed., para 17-068

(12) C & E v Polok, 19 February 2002; reported The Times (London), 20 March 2002

(13) ‘What right do we have to pry into a footballer’s sex life?’, David Aaronovitch, Independent, 15 November 2001

(14) Bladet Tromsø and Stensaas v Norway (2000) 29 EHRR 125 para. 59

(15) Who wants a footballer for a role model?, by Duleep Allirajah

(16) ‘What right do we have to pry into a footballer’s sex life?’, David Aaronovitch, Independent, 15 November 2001

(17) The Act implements the Data Protection Directive 95/ 46/ EC

(18) Section 1

(19) Section 4(4)

(20) Schedule 1, paragraph 1

(21) Section 2

(22) The Data Protection (Processing of Sensitive Personal Data) Order 2000, Paragraph 3

(23) BBC News, 6 March 2002

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