28.11.03

Parisian paparazzi off the hook

The three photographers at the centre of a civil suit brought by Mohammed Al Fayed have been cleared of breaching privacy.

Mr Al Fayed had brought the action in respect of his son Dodi, claiming invasion of privacy for pictures taken of Dodi and Princess Diana in their car on the night of their fatal crash in Paris.

French privacy law provides that the interior of a car is a private place and those falling foul of the law can face heavy fines or imprisonment.

The photographers had argued that Dodi and Diana were happy enough for them to take pictures when it suited and as such could be said to have courted publicity. More importantly perhaps, the photographs in question had been taken through the open door of the car and not been published.

At today's hearing the court acquitted Fabrice Chassery, Christian Martinez and Jacques Langevin. The three photographers had also been among the nine charged with manslaughter following the crash. Charges against all of them were dropped by France's superior couirt last year.

Necessary Breach did e-mail leaks breach Official Secrets Act?

In scenes reminiscent of David Shalyer's trial, the latest intelligence officer to let their conscience get the better of them has been put on trial.

29 year old Katharine Gun worked as a translator at the Government's central snooping station GCHQ. In the course of her work and in the run up to war in Iraq, she heard about plans for US intelligence services to tap phones and spy on members of the UN Security Council.
The 'dirty tricks' campaign was intended to produce information that could be used as leverage to presuade council members towards a vote in favour of the war in Iraq.

Mrs Gun leaked the e-mails in what she says was a bid to save lives and what her counsel Ben Emmerson QC described as a "sincere attempt to prevent what she believed to be an unlawful war and to save livesof British servicemen and women and Iraqi citizens".

She was charged under Section 1 of the Official Secrets Act which makes it an offence to divulge 'any information' without official permission.She was subsequently sacked from her job at GCHQ.

Appearing in Bow Street Magistrates Court with supporters including David Shayler himself, she did not deny having leaked the e-mails but did deny having breached the Official Secrets Act. Her denial is based on a defence of Necessity. Naturally her actions failed to stop the war in Iraq but that doesn't mean her defence may not be valid.

The House of Lord's judgment in David Shayler's case could yet prove instrumental in shaping arguments in Katharine Gun's trial. The trial itself (which will not take place until after further commital proceedings in January next year) is likely to be complex and raise some human rights issues - GCHQ has gagged Gun in relation to what she can dislose to her own lawyer.

In Shayler's case the House of Lords ruled that the Official Secrets Act contains no hint of a 'public interest' defence. Lord Hope said that the freedom of expression right under the European Convention and Human Rights Act would be upheld through intelligence officers or others bound by the Official Secrets Act being able to seek their employer's permission to disclose information. If permission to disclose of information was unreasonably denied then the individual would have the right to appeal to the courts for judicial review of that decision.

Whether the imminent threat of war (and evidence to suggest the UN Security Council that was meant to be responsible for ratifying such war was being targeted by an intelligence service 'dirty tricks' campaign) would be sufficient ground for a public interest defence to be constructed remains to be tested. The respective judgments in the House of Lords and previously in the Court of Appeal give some scope for shaping the argument either way.

Censoring Scripts - are broadcasters right to edit out artistic licence?

Former US President Ronald Reagan made many a controversial gaffe while in office but showing these in a docudrama about his life and love with Nancy proved too much for the self-censors at US broadcaster CBS.

Robert Ackerman's film was meant to show the human side of the Reagans and had been scheduled to run as a TV movie. However CBS bosses took their red pens to the script and recut the movie in a manner that Ackerman felt made it incoherent.

At the centre of the controversy was Reagan's character made a reference to AIDS along the lines of 'they that live in sin shall die in sin'. Outrageous yes, but if that was the 'human side' Ackerman was trying to portray then why edit it out?

CBS were concerned about the accuracy of the movie and in the end pulled it. Whether they just wanted it edited their way or had legitimate concerns about accuracy, it appears that networks and Hollywood studios alike will exert their final say when not happy with what's been produced.

The Reagans has now found a home on pay to view cable tv channel 'Showtime'. The offending line on AIDS has been removed.

So are broadcasters unreasonably suppressing the artistic endeavours of independent directors and producers? or, given the fact its a commercial game, are they merely pre-censoring on the basis of what they think their viewers will want to see?

Attorney General Talks Tough on Court Reporting

coming up.....

Paris Paparazzi Acquitted

full story coming up....

NEWS FLASH coming up on MB today...

Coming up on Media Beak today...

Paris Paparazzi in the dock - the verdict is due in Mohammed Al Fayed's civil suit against three snappers who were following his son Dodi and Princess Diana on the night of their death. Will France's tough privacy laws extend to the taking of pictures which were not even published?
Media Beak will bring you the latest news and analysis of the verdict.

Following in the footsteps of Shayler...
29 year old Katharine Gun was charged with breaching the Official Secrets Act and sacked from GCHQ for leaking e-mails about phone taps. She says she was trying to prevent an unlawful war against Iraq. Were her actions justified. Media Beak investigates.

And censuring scripts...never mind broadcasting, can programmes be censured at the scripting stage. MB examines the forthcoming US documentary 'The Reagans'

27.11.03

High Price for Jonny's Golden Goal

As today's Guardian reports, those wishing to relish repeats of that Rugby World Cup goal are going to be disappointed - unless they're happy to shelve out £6,500.

Yes, £6,500 is what the International Rugby Board are charging broadcasters per minute shown of the Rugby World Cup.

This represents a dramatic price hike over the previous going rate of £1,100 per minute. Not surprisingly broadcasters have neither the budget nor the willingness to pay such an inflated amount with the result that we won't be seeing that goal in a hurry.

Broadcasters had been allowed a 24 hour news window to show the goal as a news item but with that period over it will only be ITV who get to gloat over the goal - having paid £10million for the privilege -exclusive rights to the tournament. However, even ITV has only 12 months to enjoy such exclusivity, after which they too will have to pay.

Patriotic sports fans will no doubt be outraged that such commercialism is getting in the way of their spectating. It does beg the question of what sporting bodies should be allowed to charge in these circumstances. Complaints have been directed at the Formula 1 monopoly and the Premiership in the past but it seems the IRB is jumping on the bandwagon. It may find it has priced its prized goal out of the market.

26.11.03

Snapper sanctioned as Diaz protects dignity

Whenever a celebrity takes their top off the long lens of the paparazzi seems to be at hand.

Following Jennifer Aniston's damages payout (see posting Mon 24 Nov below) for illicit shots of her sunbathing, this week it was Cameron Diaz who had her day in Court.

A Californian Superior Court Judge granted a permanent injunction against snapper John Rutter prevenitng him from possessing or publishing topless shots of Cameron Diaz.

Not content with having tried to sell his shots, Rutter had tried to blackmail Diaz out of over $3million by threatening to sell them if she didn't pay up.

No surpise then that he also finds himself facing criminal charges for attempted extortion, theft and forgery (he had allegedly forged Diaz's signature on a release form for the shots). Bailed at a quarter of a million dollars, Rutter is due to appear in Court on December 8th.

Oh so controversial ...nudity still poses problem
Nudity seems to be posing quite a problem of late. Paris Hilton is still distraught at the prospect of her nude sex romps being videostreamed on the net while Ewan McGregor has said he is disappointed that shots of his penis have been edited out of the US release verision of his forthcoming film 'Young Adam'. McGregor said he thought it odd to censure that on the one hand but if his character had fired multiple machine gun rounds and caused mass destruction that would no doubt have been left in the film. The scenes will be included in the UK release.

Back in Blighty and as Ananova (www.ananova.com) reports, former S Club singer Rachel Stevens' boyfriend is said to be unimpressed with her raunchy new image. While appreciating the skimpy clothing he doesn't like sharing what it reveals with the public. Quite what he'd make of The Sun's report that Stevens had 6 leather whips confiscated from her luggage at Heathrow Airport (as they were apparently a security risk) is anyone's guess.

24.11.03

Mirror gets its gags worth

The Mirror and reporter Ryan Parry have today escaped the clutches of a breach of confidence action in exchange for keeping a lid on any further revelations from Mr Parry's time at the Palace.

The Mirror will hand over all its pictures and maintain a permanent gag over the story in exchange for the Queen dropping her breach of confidence action.

So we will not get to test whether breach of confidence was in the public interest or whether it went too far.

The Palace gets to walk away with the dignity it has left from the episode and its legal costs paid for.

The Mirror avoids putting the Queen to any further embarrassment and can claim to have done the public a great service by exposing such inexcusable security lapses.

Good call there Piers!

Daleks exterminate Beebs plans

Do Daleks have rights? - it would appear so.

As The Sun reports, the Beebs plans to feature Daleks in the new series of Dr Who may be exterminated by a rights row over their use.

The Daleks were invented by Terry Nation and were jointly owned by Mr Nation and the BBC. It would appear that prior to his death in 1997 he had fallen out with the BBC and told his executors never to let the BBC use the Daleks again.

Heated discussions are now underway between the BBC and Mr Nation's executors in a bid to let those wheely robots make a return to the screen.

Friends star Aniston wins privacy payout

Jennifer Aniston is to receive just over half a million dollars compensation for illicit snaps of her sunbathing topless in her own back yard.

The current action against Francois Navarre follows an earlier action against magazines that had also published the photos.

Navarre claimed that he wasn't the snapper on the ladder peering into her back yard but nevertheless agreed to settle the suit after admitting transmitting the photos to an agent in Italy.

Aniston had claimed damages for invasion of privacy, trespass and misappropriation of likeness and name.

With stars succeeding in punishing paparazzi - or 'stalkarazzi' as they were referred to in this case - in the U.S., we may eagerly await the High Court's damages ruling in Ewan McGregor's pending action against French picture agency Eliot Press.

HRH back in court this morning

Her Majesty's top lawyers are back in the High Court this morning in a bid to extend their gagging order over The Mirror.

An injunction granted last week prevents The Mirror (and so any other media in England + Wales) from publishing further accounts of Ryan Parry's short sejour as a footman at Buckingham Palace. Fed up with disloyal footmen putting the boot in, the Palace has this time taken action for breach of confidentiality.

For the gagging order to remain in force, the Court would have to be convinced that the Palace has a real prospect of succeeding in its action.
The key question will be whether such breaches of confidence as there may have been can be justified in the public interest or under the freedom of expression principles contained in the Human Rights Act.

Media Beak will report back with the latest from the RCJ later today.

21.11.03

Gagging the Mirror won't silence the issues

The Royal legions of lawyers paraded in front of court and finally got the Mirror gagged. Well it makes a change from previous gags on The Mail and the Guardian but is not the most devastating of legal moves.

David Pannick QC led the charge that Ryan Parry had heinously breached his contract with the Royals and the confidentiality it carried with it.

Of course he had! That was the point!

OK the Mirror has managed to fill plenty pages with ancillary pictures and details but at the end of the day the exercise was to show how easy it was for someone to get into the Palace and so close to the Monarch.

Whatever legal argument is advanced on Monday the Palace is missing the point:
Surely the 'evil' of breaching confidence is mitigated by what it has exposed?

The key question for the courts will not be breach of confidence - that is not in issue - but to what extent such breach was justified.

The reasons the Royals are so upset is that their privacy and confidence has been breached. That is fair enough. Their anger should be directed towards the failures that allowed such confidence to be breached as that is what poses the real danger.

Public Interest would be better served if those responsible for shoddy security were called to account rather than the reporter and paper.
'God Save the Queen' The Mirror says it tried to!

20.11.03

Royal rage as Palace set to sue Mirror and Ryan Parry

Well it had to happen sooner or later - HRH has had enough and Ryan Parry's happy snaps from inside the Palace have proved too much for the Royal Household.

Reports suggest that an injunction is being sought to prevent the Mirror from publishing any further pictures or details about life inside the Palace. Proceedings are also said to be underway for Breach of Confidence.

The real concern for the Royals should be the shoddy security that allowed this to happen. That poses more of a threat than the pictures published by the Mirror.
So the gloves are off and while the palace examines its legal arguments to support a breach of confidence action, back at the Mirror, Piers and Ryan will no doubt be preparing a robust defence of public interest.

Media Beak examines the facts:

1. Previous Breaches of Confidence at the Palace
Burrell writes his book
Mirror serialises parts of book
George Smith makes numerous allegations
Mark Bolland discloses conversation with Sir Michael Peat about Prince Charles' sexuality

Common theme - Palace did nothing about them

2: Outrage at slack security after Aaron Barschak gatecrashes Wills 21st party

3: Complaints about £millions spent on policing Bush's visit

4: Parry and Mirror expose outrageous lack of security at Palace.

The case for the Palace
Employees sign a confidenctiality agreement and Parry has breached this and falsified facts to gain employment.
Mirror is further breaching confidence by publicising details and pictures from inside the Palace.

The case for the Mirror and Mr Parry
Confidentiality agreement is not worth the paper it is written on as has been shown by far more serious disclosures in respect of Burrell and others.
If confidentiality has been breached then it is not just in the Royal Household's interests (to show them how bad their security is) but in the public interest on two levels - first, our Monarch is not properly protected and second, why is the txpayer paying £millions to police Bush's visit when it is that easy to get into the Palace.

Mr Parry and the Mirror were exposing how easy it was to get into the Palace and how pathetic the security is. They have not been spreading untrue rumours or sordid details but merely showing how easy it was to get in and argualby, the photographs provide some documentary proof of this.

Media Beak concludes that Palace lawyers are going to have a right royal battle on their hands to exercise their selective right of action for breach of confidence in this case.

The public interest case would seem to be compelling.

Syndicating the Palace snaps for profit might not entirely assist the Mirror's public interest defence but if litigation does ensue then the courts are going to have to make a much more convincing case than the Palace would appear to have in seeking to censure the press on this one.

Anonymity in Rape cases

As the Criminal Justice Bill gets tossed between the Lords and the Commons in the final throws of this Parliamentary session, one key concession has been made regarding the naming of defendants in rape cases.

The Lords had moved to grant defendants in rape cases pre-tiral anonymity up until they were charged - something that might have helped the likes of John Leslie (who the courts acquitted insisting there was absolutely no stain on his character).

The Government along with many others, notably the press, was opposed to the idea and yesterday succeeded in having an anonymity clause dropped from the Sex Offences Bill.

The regulation of naming defendants has therefore been vested in the police and media.

Junior Criminal Justice Minister Paul Goggins stated that the Government recognised the concern that is caused by damaging publicity in such cases but thought that 'informed and strengthened guidance' to police and media was preferable to any change in legislation.

This concern was highlighted in the recent rape allegations involving footballers at a Mayfair hotel. The Attorney General urged editors to show some restraint as both accused and accuser mobilised their own PR campaigns before any charges were even brought.

19.11.03

Buckingham Palace may sue the Mirror and give us a Right Royal laugh

Media Beak is bemused by reports that the Palace is seriously considering legal action against the Mirror and its journalist Ryan Parry.

Officials are said to be threatening legal action for Breach of Confidentiality as Mirror man Parry had signed a confidentiality agreement as part of his employment.

Well bring it on Royals, Media Beak would like to hear why the Palace would bring proceedings against Parry and the Mirror - whose alleged breach of confidence served to highlight major security deficiencies - while ignoring the disclosures of Burrell, Smith and others who have surely run amok with any residual notion of regal confidentiality.
As Media Beak has previously noted - see below 'Has Prince Charles Breached His Own Confidence' (posted Nov 12) - the Palace has not shown great consistency when it comes to protecting its privacy so were they to litigate the Beak is sure that Piers Morgan would give them a sporting run for their money!

A Right Royal Trespass!

You've got to admire the Mirror which has been hard on the heels of all things royal and disloyal of late. Whatever Blunkett is saying about adequate checks on royal staff has to attract a laugh - and you'd have thought that Aaron Barshacks attack on Wills birthday party should have been a wake up call to those responsible for palatial policing.

The Mirrorman's stunt proves a point - if he can get into the palace then what's stopping a less public spirited individual? So Ken Livingstone's rants about the cost of Bushmans visit seem well founded. Why spend millions policing London when potential perpetrators could just get a job at the palace.

It is interesting to see undercover journalism scoring some scoops of late. From outing racist police officers to showing up palace security, what may seem as a trespass under false pretence is providing the public with some thought-provoking copy.

"Down with blogging"

...is what BET.com vice president Retha Hill told the recent annual conference of the ONA Online News Association. As Editor & Publisher (editorandpublisher.com) reports this week, there was vibrant discussion on the place of blogging in the news agenda. While veteran blogger Andrew Sullivan posed the question of why pay for edited news when blogs deliver you the uncut version for free, others were not so ready to embrace the blogging culture.

The issue with blogging is that its essence is the speed of delivery and ease of contributed comment and debate.

From a news editorial perspective this is good from a live and direct and interactive point of view but poses potential legal problems if blogging goes unchecked. How do you police blogging on your news site and are you responsible if bloggers start defaming or posting obscene or irresponsible comment?

As the law stands it may not be easy to rely on a defence of innocent dissemination by showing you have sufficient controls in place to monitor output and correct untrue statements. Current judicial thinking on this matter also seems to be pushing the burden and therefore liability onto the content provider, site owner or ISP rather than the offending blogger.

Blogging does however have a legitimate place and is a great way to provide forum for free speech and debate beyond the constraints of an editorial agenda.

So Media Beak says Up with Blogging
as with all manner of publication you just need to ensure you use the wonderous legal disclaimers that are available and provide sufficient checks to ensure you don't cross the divide from encouraging free speech and debate to facilitating the publication of defamatory statements.

Rizla rapped for twisitng and burning

Advertisers have kept regulators busy this week. Among its several adjudications (see www.asa.org.uk) the ASA upheld a complaint against Imperial Tobacco for an ad that could be seen to condone the consumption of illegal drugs. UK company Zig Zag had complained that the ad for well known cigarette paper Rizla+ was a clear allusion to drug culture.

The ad featured a Rizla packet that was twisted at one end and accompanied by the caption "Twist and" "Burn+". The ASA agreed that fat roll-ups twisted at one end could indeed look like joints associated with cannabis smoking and that "twist and burn" is slang associated with twisting off the end of a joint before lighting and smoking it.

Imperial Tobacco delivered the admirable defence that the phrase actually referred to twisting the throttle of a motorcycle and burning the rubber of its tyres as you screech off into the sunset. Needless to say the ASA upheld the complaint and told Imperial Tobacco not to use the ad again in the future.

So next time you see someone buy a packet of Rizla don't be prejudiced, they could be off for a spin on their motorbike.

18.11.03

Advertising upsets - why Barclaycard ad is Bundh!

Barclaycard has had its money grabbing knuckles rapped by the Office of Fair Trading for what it called 'highly misleading' and possibly illegal advertising.

"0% forever" was what a debt accumulating shopaholic public was promised. Forever as it turned out, only applied to balance transfers if a customer spent a minimum of £50 a month on the card. That £50 would attract the current rate of interest (17.9%) and the £50 could only be paid off once the outstanding or transferred balanced had been paid off.

An unrepentant Barclays is withdrawing the ads but not the offer - but then Barclays probably isn't that bothered given that even its own Chief Executive is on record as saying that credit cards are too expensive.

Media Beak thinks this is a load of Bundh which takes us nicely on to this week's delicious hidden meaning...

Sharwoods has been spicing up our cuisine with its new range of curry sauces called Bundh that evokes the pungent taste of the Punjab - problem being that the word Bundh translates into "arse" in Punjabi.

Sharwoods painstakingly point out that the pronunciation of that word is different from their curry and we should continue to enjoy their similarly sounding sauces undeterred...Yum.

Media Beak concludes that Sharwoods Bundh is less likely to leave the taste of Bundh in your mouth than your Barclaycard bill!

17.11.03

Live Justice - Cameras in Court

As The Guardian reports today, senior judges have agreed to a pilot scheme to examine the issues concerning cameras in the court room.

The Hutton inquiry paved the way for more open justice with its online reports and resources as well as allowing the televising of opening and closing statements. It did however fall short of allowing the entire proceedings to be televised.

Following Hutton's online lead, Sky News is breaking new ground in the current Soham murder trial with its live ticker feed of evidence from the trial.

So why are we still having to put up with artists impressions , dramatic reconstructions or 3-d graphics?

Well, the courts are not yet comfortable with the idea of being televised. The hype surrounding trials in the United States such as that of OJ Simpson has made sceptics more reluctant to let the cameras roll. There is a fear that cameras might lead overacting in the courtroom or, for the less confident or publicity keen, intimidation.

But surely it is time to embrace new technology and let the cameras in.

Reference will often be made to what’s called the ‘open justice’ principle that demands that justice be seen to be done. This dates back to ancient times and the notion that the public should see the punishment of those they condemned – be it stoning or crucifixion or the stocks or guillotine in medieval times to jury trial or death by lethal injection nowadays.

So why not have cameras in court? – the majority of people get their news from television so it would make sense to be able to see proceedings rather than have abbreviated reports in newspapers or the spectacle of dramatic reconstructions – forget the drama and the added expense of producing it (with the exception of programmes like crime watch which serves a serious purpose and where – thankfully, there is no opportunity to broadcast the real thing in the first instance) why not just televise proceedings – after all, there is so much live news coverage. But for some reason this seems to pose problems for both the courts and the broadcasters. We watched in horror as live pictures of the twin towers collapsing were beamed across the world. We are shown pictures of live guided missile attacks on Iraq and hear reporters tell us of the fireballs in the night sky behind them – omitting to tell or show the horrific consequences that such fireball has certainly killed the innocent along with the guilty. Yet when it comes to sticking a camera in a courtroom people suddenly seem aghast – that would be too close for comfort. Surely open justice would be best served by live broadcast? People might then be less likely to lie and that crucial testimony – both verbal and in terms of body language – would be available for all to see. There could then be no bias in reporting as there would be little if no opportunity to edit a live broadcast. By not allowing cameras in court are we creating edited rather than open justice as far as a right to see and hear proceedings is concerned.

However there have been previous attempts to prise open the doors of the courtroom – albeit through the medium of tribunals. Ironically it was American broadcaster CNN that made significant progress in it’s application to televise the Shipman Enquiry into the mass murdering activities of the doctor Harold Shipman. In making its application CNN relied on the little used provision of the 1921 Tribunals of Enquiry (Evidence) Act that does not prohibit photography. CNN claimed that the 1921 Act along with principles of open justice and Article 10 ECHR gave them a right to broadcast proceedings. Ruling on the matter Dame Janet Smith was reluctant to go as far as acknowledging that broadcasters had any right to televise inquiries but she did allow access based on televising testimony of witnesses who didn’t object. She thus allowed cameras access but imposed a protocol that inserted a 60 minute delay between the recording and actual broadcast. This allowed time if the need arose for a judicial or similar edit to be made.

This provided a significant breakthrough and has was cited in defence of a similar application made before Lord Hutton in the Inquiry into the circumstances surrounding the death of weapons expert David Kelly.

Lord Hutton acknowledged the request and the principle but given the sensitive nature of the case and in particular the suggestion that media pressure had contributed to the tragedy, he declined the request for live broadcast. Lord Hutton revisited the ruling made by Dame Janet Smith and having examined the arguments put to him by counsel, decided to adopt Dame Janet Smith’s reasoning.

In doing so Lord Hutton sought to clarify the application of Article 6 (right to a fair trial) and Article 10 ECHR as they may apply to media.

This point was also raised in the trial of the Lockerbie bomber. Lords Kirkwood and Marnoch stated that Art.10 had no application to information which was NOT already available to petitioners and which the person in possession or control did not want to impart.

In the Shipman trial Dame Janet Smith made the point that Art.10 says nothing about information that is not yet available. In that sense there is a difference between freedom of expression and right of access to information.

So Art. 10 is about Freedom of Expression rather than access to the information that the media may wish to express. Such rights as are available in relation to access to public proceedings are described in Art. 6 which allows access to trials but gives courts the scope to exclude media or public in the interests of morals, public order or national security.

Having moved to online justice with Hutton and through Sky's current feed the next logical step has to be the breakthrough to live justice. So let the cameras roll.

13.11.03

Ewan McGregor's legal action turns up the heat

Hot on the heels of the damages award in Douglas v Hello, the High Court has this week ordered French snapper agency Eliot Press SARL to pay damages for breach of confidence and data protection infringement to film star Ewan McGregor.

The action dates back to photos taken of McGregor's children while on holiday in Mauritius last year. McGregor had secured an injunction in the High Court against Eliot Press which has not defended the action.

McGregor slammed celebrity gossip magazine HEAT back in May, saying it was a "dirty, filfthy piece of shit" for publishing such pictures.

In making the damages order Mr Justice Eady stated that the level of award will be assessed at a subsequent hearing.

This case could prove pivotal in shaping the courts approach to breach of confidence branded privacy cases in the future. While Douglas v Hello focused on economic loss and Naomi Campbell's claim against the Mirror finally fell down because of lies, McGregor's is a more straightforward claim. It is not commercially driven but concerns the reasonable expectation of privacy he and his family should be able to enjoy.

Previous cases have sent mixed messages - Sarah Cox and partner were awarded damages for intrusive pictures of their holiday while newscaster Anna Ford was denied justice for similar holiday snaps of her and partner. Meanwhile actress Kate Beckinsdale also received no recompense or apology for shots of her and her child in a park.

With the PCC not able to deter snappers with court orders or sanctions it is up to the High Court to take a lead and give the law some steer in this area.

Where can people in general and celebrities in particular have a 'reasonable expectation of privacy'?
Where should the judicial line be drawn on the use of longlens photography to steal illicit shots?

McGregor's case is not about the publicity right but about his, or his children's private rights. The value of these remains to be determined by the court. It will be interesting to see what the courts come up with!

12.11.03

Larry Flynt protects privacy!

US Army Private Jessica Lynch who famously survived the war in Iraq has this week published her authorised biography 'I am a soldier too: The Jessica Lynch Story'

She is however not too keen on the prospect of publication of alleged nude photos of her taken in an army barracks before the war.

Apparently she need not be concerned as veteran porn publisher Larry Flynt says that he has purchased the photos but decided not to publish them.

Flynt's conscience seemingly got the better of him and he says that Lynch has been exploited enough by the media and government already.

So Larry will be locking those pictures away in his safe to ensure they don't appear.

Larry Flynt is of course the man who managed to persuade the Supreme Court back in 1988 that his First Amendment rights extended to publishing porn satire about TV evangelist Jerry Falwell.

So should Jessica sleep sound in the knowledge that those nude shots are safe?

Zeta Jones is not on a diet!

Jonesy just can't keep out of court. Her lawyers have issued a stern warning to the world's media not to link, suggest or otherwise juxtapose Catherine Zeta Jones with the Atkins diet.

For the avoidance of doubt, Media Beak confirms that Zeta Jones has nothing to do with the Atkins diet and certainly would not endorse it. Editors you have been warned.

Obviously still reeling with upset at snapshots of her eating her wedding cake Mrs Douglas is not amused.

Celebrities and eating habits provide fodder for many a media story. Frank admissions by Mrs Hipgrave (aka Gail Porter) in todays tabloids speak of her anguish with anorexia and the medicine munching life it has led to. Earlier this week Kylie was reported as being happy with her 'fuller figure' and speculation whether Renee Zellwegger was packing away the pounds to film the Bridget Jones' sequel got well out of hand.

However, celebs can prove to be touchy (in the non Britney sense) when it comes to dieting. Elton John had that famous run-in with the Mirror about reports of him allegedly being on a diet that involved spitting out his food. He successfully sued for defamation (although the courts saw fit to cut the ludicrous damages awarded)

So food for thought when you report on who has been eating all the pies.

Has Prince Charles breached his own Confidence?

As Prince Charles leaves the Karma of India for the controversy of his courtiers his troubles seem to go from bad to worse.

Whether supper at Highgrove with Camilla and William will help his resolve remains to be seen but the lawyers he has supposedly instructed in relation to bringing a Breach of Confidence action will have their work cut out.

Never mind Michael Douglas’ and Zeta Jones’ disappointment at their damages but Breach of Confidence is not a litigants best friend. From 1977 when Lord Denning dismissed Tom Jones' action against disclosures by his agent through to the Court of Appeal ruling on Naomi Campbell and Mirror Group this year, if your life is not private then protecting confidence in its privacy may not be that simple.

On the face of it you would think Prince Charles should have a clear cut case. His courtiers and employees are employed in a role that involves a necessary quality of confidence and receive and impart information that comes with an obligation of confidence. In spilling the beans to third parties or the press any employee would be engaging in an unauthorised use of information to the detriment of the person (Prince Charles) to whom that information belongs.

So de facto the legal requirements for confidence and proof of breach appear to be there. So how come the only injunction flying around is that belonging to Michael Fawcett?

What's Prince Charles waiting for? Well, he may have inadvertently sabotaged his own case. There are two qualifications to being able to call upon ones right to confidence:
First, one has not put the private or confidential details in question into the public or media domain (Jamie Theakston's attempt to suppress reports of his antics in a Mayfair brothel failed on this account). Second there is not a competing public right to know or freedom of expression issue that can compete with the confidentiality right.

Aside from what the PR gurus are saying, let's analyse Prince Charles' actions from a lawyers point of view:
1: He goes on record discussing the breakdown of his marriage on prime time television (before Diana makes it 1:1 in an interview with Martin Bashir)
2: Previous gay rape allegations involving St James' palace are denied and investigated but the surrounding media frenzy is very well documented publicly.
3: The Burrell trial dramatically collapses after top level Royal intervention.
4: Burrell is not injuncted or issued with proceedings for breach of confidence before or after publishing his book.
5. Charles put himself in the frame last week by going on record as saying he is the person at the centre of allegations but he denies it all.
6: Former press adviser Mark Bolland discloses details of a conversation with Sir Michael Peat about whether Charles is bi-sexual - he is not injuncted or issued with a writ.

So, were Prince Charles to bring an action for breach of confidence he could well find himself being estopped from bringing it on the basis that he has put himself in the frame of that being discussed and importantly, not acted against existing infringers.
Even if he obtained an injunction against George Smith (who is making the various lurid claims) he may not be able to persuade a court that suppressing publication of the story behind the claims is in the public interest and the media's freedom of expression may win over. The media are of course being assisted in this latter point by their foreign counterparts who are free to print the allegations and surrounding stories (Italian papers that were destroyed this weekend are now back on sale in London!)

So Prince Charles may find that Max Clifford will be able to help him more than his legal team with this one.

Damages in Douglas v Hello - are the courts furthering the creation of a Publicity Right?

The long awaited ruling on damages in Douglas & Ors. V. Hello [2003] EWHC 2629 (Ch) may have come as a blow to the Douglas' and Jones' but offer commercial compensation to OK! Magazine.

While many find the notion of being able to recover damages for some unofficial pictures of a wedding that had already been sold a distasteful one, the Courts have come up with a commercial solution that puts some justice back into their original judgment in April.

We have seen on numerous occasions that Courts will readily award damages where financial losses can be quantified but seem more reluctant where personal or moral misdemeanour is the principal casualty. Privacy as a legal principle has been rejected by the courts so that the preferred avenue for bringing such an action is for breach of confidence.

In ruling on damages in the current case, Mr Justice Lindsay sitting in the High Court has steered the recovery of damages for breach of confidence down a strict and well reasoned commercial course and not, as many had feared, down a pro-celebrity path that would provide convenient compensation for the rich and famous. Breach of confidence or invasion of privacy is not of itself a justification for financial reward. What is required is quantifiable economic loss. In this sense the damages award in Douglas v. Hello is reasoned along the lines of consequential economic loss in tort rather than compensatory damages for breach of confidence. In adopting this approach the Courts are effectively opening up the way for a new commercially driven publicity right which is geared more towards personality rather than persona.

Of Michael Douglas's and Catherine Zeta Jones' claim for distress Mr Justice Lindsay said that he "failed to understand how one could properly recover in respect of distress, wasted costs or for loss of sales in respect of that which, for a consideration, one is to be taken notionally to have authorised" This approach is to be welcomed and answers the sceptics plea not to reward the rich for such infringements. If you have licensed something then you cannot complain about the distress of that which you were happy to license being available. In other words your claim, if any, will be one of economic loss or copyright infringement.

Zeta Jones claimed to be distressed by a picture of her eating cake but the Court accepted the view of expert witness and former Sun editor Kelvin McKenzie that the pictures were "terrific". And Mr McKenzie is a man in the know given his recent run in with Eddie Irvine over using his photo to promote Talksport.

So the Court awarded the Douglases £14,600 and OK! Magazine £1,033,156 while the Douglases claim for breach under the Data Protection Act received the £50 award it deserved.

The rationale for the amounts is simple and centred on the claim by OK! for loss of expected revenue from their planned wedding edition sales and the joint claim for a notional licence fee representing reasonable consideration payable by Hello! for permission to publish the unauthorised photographs - this could in itself raise some interesting copyright issues.

Mr Justice Lindsay did not accept liability arising out of the breach of confidence and rejected the traditional "but for " test in this regard stating that the suggestion that the losses described "would not have occurred "but for" the breach of confidence complained of does not, of itself, make a party liable. I add that in my judgment such losses were sufficiently consequential upon the breach and sufficiently foreseeable to make Hello! Liable for them in the ordinary way." OK! Received its compensation on the basis of economic loss and such loss was £1,033,156. The Douglases distress was only acknowledged to the extent it covered that caused by the thought of there being an intruder at their wedding and publication of unauthorised pictures - as opposed to pictures per se. That value was placed at £3,750 each and their claim for losses incurred in having to get their wedding photos processed more quickly was reduced from £13,000 to £7,000.

The case for economic loss having been made out the Court did not need to rely on the claim for a notional licence fee - i.e. copyright licensing the photos that had been taken by another. To be helpful, the Court still put a figure on this - £125,000 - so concluded that the parties would be best served by the higher economic loss award.

The judge added that the award was not meant to be punitive and given Hello!'s resources did not consider this as an infringement on the magazine's right to freedom of expression.

While both parties, not least the lawyers, may claim to be winners in this litigation the key question is this - were the Douglases not rich and famous and had they not struck a $1m deal with OK! Magazine, what protection would the Courts offer someone who had unauthorised pictures of their wedding published. With no privacy law and no economic loss, the answer would appear to be little. Celebrities, this PUBLICITY RIGHT would appear to be yours.

Privacy v. Publicity - Personal Right or Commercial Commodity

It’s official. There is no Law of Privacy in the UK. Forget fanciful notions that promises by the European Convention on Human Rights or the Human Rights Act that “Everyone has the right to respect for his private and family life, his home and his correspondence”, are there to protect privacy. Nor, it would seem, do these legislative provisions require English law to recognise privacy as a fundamental human right. In rejecting that English law should recognise a tort of privacy Lord Hoffman in Wainwright and another v. Home Office [2003] UKHL 53 (16th October 2003) states: “There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself”.

The judgment narrows the scope of privacy and steers the law away from a more rights based approach seen in recent cases. Privacy proponents had been cheered by Sedley LJ’s approach in Douglas v. Hello! Ltd [2001] QB 967 that “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”. While not rejecting Sedley LJ’s approach outright, Lord Hoffman decided to dismiss it as “a plea for the extension and possibly renaming of the old action for breach of confidence”. This was echoed in Lord Scott’s dictum “whatever remedies may have been developed for misuse of confidential information, for certain types of trespass, for certain types of nuisance and for various other situations in which claimants may find themselves aggrieved by an invasion of what they conceive to be their privacy, the common law has not developed and overall remedy for the invasion of privacy”.

So why is there such a judicial reluctance to embrace privacy per se? In his judgment Lord Hoffman made reference to the United States tort of privacy but citing Dean Prosser’s taxonomy (Dean Prosser: The Law of Torts, 4th ed 1971) concluded that it required privacy to be broken down into a number of ‘loosely-linked torts’ which casts doubt upon the value of any high-level generalisation. “English law has so far been unwilling, perhaps unable, to formulate any such high-level principle”.

Whether unwilling or unable the approach of the House of Lords is that (1) there are sufficient laws and legal principles that can be extended to cover situations where what people ‘conceive’ to be their privacy has been violated. (2) the fact that these laws exist is sufficient to satisfy the requirements of the European Convention and Human Rights Act (3) it is for the legislature to make laws so if a law were required it would be up to Parliament and not the Courts to formulate it.

The UK legislature has thus far avoided any attempt at formulation with the 1990 Calcutt Committee and the recent Government response to the 5th report of the Culture, Media and Sport Select Committee on Privacy and Media Intrusion (published 16th June 2003) concluding that both a right to privacy and a right to freedom of expression were not absolutes and needed to be weighed against each other. This was, the report concluded, best left to self-regulation.

Where serious intrusions occur, self-regulation seems to have provided insufficient remedy and is confined to those it seeks to regulate. The Press Complaints Commission states that the “use of longlens photography to take pictures of people in private places without their consent is unacceptable” yet decided that a beach was not sufficiently private a place when newscaster Anna Ford complained about the publication of close-up shots of her on holiday. Similarly a park was not a private place when actress Kate Beckinsdale complained about pictures of her and her daughter in a park. Meanwhile Radio 1 DJ Sara Cox was awarded an out of court settlement for unwanted holiday snaps of her and her partner. So where’s the rationale? Is a lack of legal principle leading to hap-hazard protection of values?

In Douglas v. Hello! Michael Douglas and Catherine Zeta Jones were awarded damages for an illicit photograph taken at their wedding. A wedding they had already commercialised by selling the exclusive image rights to OK magazine. So they invite photographers to a private occasion and get damages while others are lying on a beach minding their own business and can’t claim for the longlens intrusions they suffer. How can this be? In short, if you commercialise your image or private life then the law will be able to offer you protection through one of its traditional tort based remedies. If you have not put a monetary value on your privacy and rely on it being a moral right then tough. The House of Lords has confirmed that the law is unwilling or unable to help.

Lord Hoffman refers to privacy as a value rather than a principle, an approach that perhaps explains why the law seems happy to entertain a commoditised version of privacy as a property right rather than a fundamental human or moral right.

How else can it be that such an intimate violation as improperly conducted strip search (as was the case in Wainwright) is not worthy of remedy. How can someone be interviewed and photographed in a hospital bed (see Kaye v. Robertson [1991] FSR 62) and the courts not find that their privacy has been invaded because they did not own or occupy the hospital room and their body was not touched (so no trespass occurred). How can Lord Hoffman admit that the European Court concluded that the UK did not offer Geoffrey Peck (see Peck v. United Kingdom [2003] 36 EHRR 41) adequate remedy after CCTV images of him were widely publicised without his consent but then deny it has anything to do with privacy. Mr Peck was suicidal and was caught on CCTV attempting to slit his wrists. After the images had been viewed by over 9 million people on prime time television Lord Hoffman still felt able to dismiss such a gross intrusion on privacy as showing “no more than a need, in English law, for a system of control of the use of film from CCTV cameras which shows greater sensitivity to the feelings of people who happen to have been caught by the lens”.

So is that what the Government says is best left to self-regulation? Is the fact that no existing tort was committed and Mr Peck had not tried to sell his image rights on the CCTV sufficient argument to deny Mr Peck a remedy? The European Court declared that it was not. Yet the House of Lords have made no attempt to embrace the message in that judgment or the spirit of the European Convention in their judgment in Wainwright.

So what does this mean for privacy? The law will protect things derived from people’s private life such as information, images or reputation yet it seems unwilling to protect privacy per se. In other words, the law will recognise the property rights attached to privacy ahead of personal or moral rights.

This shifts the legal imperative from protection of a human right to protection of a commercial value in that right. Privacy has become an IP right.