Privacy claim: Liz Hurley and Hugh Grant sue over holiday snaps

Liz Hurley, her husband Arun Nayar and Hugh Grant are heading to the High Court where they are suing picture agencies Big Pictures and Eliot Press for privacy invasion. Both agencies are no stranger to legal action - Ewan McGregor having secured a payout against Eliot Press over photographs taken while he was holidaying with his family in Mauritius while Big Pictures have been in the frame for several actions such as the famous David Beckham 'Golden Balls' picture.

The three friends are complaining about pictures that were taken while they shared a holiday in the Maldives last October. The rules and laws of privacy have seen much confusion in the past and inconsistency in the approach taken by the courts. Much of this centred around the notion that one only had - in line with the law and self-regulatory codes - a 'reasonable expectation of privacy' if one were somewhere truly private, in the sense it was not accessible (or meant to be) to the outside world. What recent rulings have clarified is that the human right to privacy as conferred by article 8 of the European Convention on Human Rights and given effect to in the UK via the 1998 Human Rights Act, is portable. In other words, as a human right it attaches to the person rather than the location - if the activity, albeit in an ostensibly 'public' place, is of a private nature (and in absence of any competing right of the public or the press to expose wrongdoing or the invasion being justified by the deception it exposed) then the human right to privacy stands and the state directly and the press indirectly have a duty to respect and uphold that privacy.

This changing landscape and clearer delineation of privacy law has come via the European Court ruling in the case of Hanover v. Germany and was confirmed in the self-regulatory context through the PCC's adjudication over a complaint by Elle McPherson in January last year.

What is interesting and differentiates this case is that, according to reports, Hurley, her husband and former lover, are seeking restitution in the form of a share of the profits creamed off by the picture agencies rather than a straight and fixed damages award.

This makes sense. The pictures are out there and can't be retracted (though an injunction can secure they cannot be reissued) so why not profit from their sale? If the profits from sale are likely to be greater than a damages award then it makes sense to ask the court to order that option.

Another KEY reason for doing this that supports a TREND Mediabeak predicts is that by doing so the legal action changes - what the courts are being asked is to recognise the intellectual property worth of the image as a commodity (use of image obtained without permission and in an unlicensed manner) and/or data protection angle (one's image as captured on camera as being part of one's personal information). What this means is that what Hurley and others in her position would claim is that their picture has been used without permission for the commerical benefit of a third party and as such that third party has to compensate them for the loss of control over their image rights and - should they wish - being able to sell that picture themselves. This makes for a clearer cut commercial and hopefully also legal argument - one is no longer trying to balance the right of the celebrity to privacy against the media's (self) appointed right to report but is taken into a more easily quantifiable commercial context of the financial exploitation potential of their image.

What Hurley and similar legal actions will be saying is OK, I'm not hung up about my human right to privacy and want to get drawn into a ridiculous court battle over when one's actions or where one is might attract that human right BUT what I am saying is that you have used a picture of me and are trading off my celebrity or picture selling status to exploit my image without my permission - that's basically ripping me off and you will need to compensate me for it. This approach is making increasing sense and is more likely to find resonance in the courtrooms that are more used to ajudicating over property rights than they are over persona related rights.

So there is hope, not just for Hurley and their lawyer's success but for the emergence of a clearer legal landscape in relation to privacy and image rights and how the English and other legal systems deal with this historically thorny issue.