While celebrities and the courts argue over the parameters of the human right to privacy and protecting celebrities and others from unwanted media intrusion and speculation, their quest to find a legal and moral centreground is undermined by the commercial forces at play.
Reports suggest that Angelina Jolie is offering an exclusive to confirm her pregnancy to the highest bidder. While the monies will go to some well deserving charity the concept and acceptance of it set a tricky precedent. To the extent that the money raised by this publicity stunt may well benefit a good cause it also puts a price on the sale of this confirmation and/or 'exclusive' and sends out the message that - whether for charity or not - such private information is for sale to the highest bidder.
This poses a legal and regulatory dilemma insofar as the legal system is - through the Human Rights Act and European Convention - charged to protect the right to private information. So if celebrities are allowed to sell their private information to the highest bidder why should the law step in and prevent this or similar information being published when a celebrity decides they don't want this information to be published or that the price they are being offered isn't right.
There is a need to separate the human rights based protection of privacy from the commercial regulation of private information as a tradable commodity. As the law stands intellectual property and associated licensing laws allow for the commercial exploitation while human rights laws and self regulatory codes deal with non-commercially regulated intrusion. This separation may seem workable at one level but there have been enough cases to prove it is not.
A prime example is the case of Douglas v Hello where Catherine Zeta-Jones and Michael Douglas had entered into an exclsuive licensing deal that allowed OK! magazine to take and publish photographs of their wedding. Rival Hello magazine managed to obtain some sneakily taken snapshots from the wedding an printed them ahead of OK!'s official wedding pictures release. The protracted and ensuing legal action saw OK! magazine use the pretext of the Douglases privacy to sue rival Hello magazine for the revenues it lost as a result of Hello's spoiler. This is perverse and so too is the ruling that ultimately acknowledged some such right. It is illogical and arguably an abuse of process to use human rights related laws to protect privacy rights that one has already sold for commercial gain.
To the extent that one seeks to commercialise one's private life and information, one compromises the human right to privacy in that information. The very fact that a right is for sale means that the holder of the right has ascribed a value to it and anyone paying the price can, by implication, override the privacy in it. So where a right has been so commercialised, then any use of the private material that falls outside the terms of the commercial deal is surely a contractual issue relating to a breach in commercial exploitation or licensing rights as opposed to a human rights issue.
There remains much confusion between the two and the willingness of Angelina Jolie to commercialise her private news may serve a charity but does little to help clarify an already confused law. If there were new legislation that distinguished between privacy in a human rights sense and as a commercial commodity then that would serve to clarify an unsatisfactory interpretation and application of the laws that are currently being mixed and matched to address the various interpretations of what constitute privacy issues.
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