Privacy law is a mess

All hail the super injunction which alongside the libel tourism visas is among the most undermining constructs to be evolved through and tolerated by the common law system of justice that seeks to weave its way among the various legislative intitiatives or lack of such in recent years.

To PRIVACY laws and one of Mediabeak's greatest irritants namely, neither legislature not judiciary in the UK have sought to properly sort this area of law in recent years. The politicians (probably too fearful of what lay in their respective closets) have had little appetite or understanding of what the legal requiements were, while our judiciary have had eminently learned yet divergent views on how such a law might be applied and how to give effect to that interloping piece of European legislation in the form of the European Convention on Human Rights.

This brings us to today's recurring theme - Celebrities and other cash-rich self-interested parties are using the legal process to protect their commercial interests using what is meant to be a persona related human rights law and our (the UK) courts are increasingly allowing them to do so. This is so wrong and here is why:

Privacy law as is in the UK is based on Article 8 of the European Convention on Human Rights. This provides for a right to respect for one's personal and family life but it is a defensive right against intrusion by the state (not the tabloid press). The UK after several decades finally got round to introducing the Human Rights Act but this was phrased in the wonderfully cumbersome way that provided - it was unlawful for a public authority to act in a manner that was inconsistent with the European Convention - in other words...public authorities in the UK (or England and Wales to be precise - though similar provision applies in Scots law) have a duty to act in accordance with / give effect to the law of the European Convention. Confused? well you are not alone - what this means is that the European based privacy law is only engaged in the UK where a public body is involved and such body has to ensure that its actions are not 'inconsistent' with the European Convention'.

So if a tabloid paper invades your privacy, the law is only engaged when a court as a public body is called upon to adjudicate over such invasion. OK so there is the PCC code that provides for privacy but it is a self regulatory code and until the legal process is engaged it has minimal power. Bottom line and the contentious point in relation to how privacy law (as such) has developed and been applied in the UK is that IF you have the money to engage lawyers and go to court then the courts have in recent years seemed to be acceptant of and given effect to the right of privacy.

Who has shaped privacy law? two key (and there have been several) cases to single out have been Naomi Campbell and Max Mosley. In the case of Naomi Campbell she had lied about taking drugs and treatment for drug addiction and was exposed in the Mirror. The case went from her winning a privacy action (though it felt more like a defamation based one) to the Mirror winning its point to Naomi reigning supreme on further appeal and all the while running her legal action on a no-win no-fee basis - which has recently been ruled unlawful at a European level. Then - several years later but same principles applying - we had Max Mosely who still secured favour in court after being exposed for his (allegedly) bondage-clad antics.

So what does this all mean and why is it wrong?

Well what we have is a law - of sorts - built up through precedent (i.e. on a case by case basis) - but such cases have been brought by people intent on protecting and preserving their reputation rather than their true privacy. It is perverse that someone can earn $1m+ from a photoshoot for a magazine or bearing all in a magazine and then claim a violation of their privacy if they don't like the picture. We witnessed that legally unsatisfactory case of Zeta Jones and Michael Douglas getting all upset with Hello magazine because the magazine had managed to obtain pictures and published these without being the licensed photographer and publisher (OK! Magazine). So it was OK to sell their wedding 'exclusive' to OK for ca $1m but when Hello managed to get and publish a sneaky peek it was suddenly a violation of privacy.

What all these precious (and to be fair valuable in a commoditised way) celebrities are really after is to monetise, franchsie and leverage their image and then protect that commercially. Well this is where the Beak gets annoyed as while the aims of celebs and others are fair there should be no pretence that their rights vest in ande derive from privacy law. What they are seeking to do is to leverage/trade off their commercial image and this is separate to their human right image and its protection.

Meanwhile people who have genuinely had their privacy violated but are not 'celebrities' (see the case of Geoffrey Peck v UK) don't get a look in.

To the extent it is good that several decades after the introduction of the European Convention the UK is finally realising that there do exist certain rights (including privacy)it has pandered to those with money to litigate and not recognised the core protection and intention behind the Convention to protect the citizens against privacy intrusions by the state.

Recent judgments do however seem to be assessing whether the fact someone is a public figure of itself justifies media coverage. Even though Naomi Campbell had lied about taking drugs and the British newspaper The Mirror exposed her for this, the top UK court, the House of Lords still held (by majority) that she was still entitled to some privacy. The fact the paper was exposing her lies did not allow it ‘access all areas’ to her life and treatment for drug addiction.
This is especially the case when it comes to unofficial, non-contentious or private business. The European Court of Human Rights has also placed constraints on what can be published about public figures when engaged in private activities:
“The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest… it does not do so in the latter case. Similarly, although the public has a right to be informed, which is an essential right in a democratic society that, in certain special circumstances, can even extend to aspects of the private life of public figures, particularly where politicians are concerned this is not the case here…. because the published photos and accompanying commentaries relate exclusively to details of the applicant's private life.”*
*Hannover v Germany [2004] ECHR 294 at para. 63-64

It is however important to note that such cases are brought by and concern public figures or wealthier ‘A’ List celebrities who have a reputation and status worth litigating over. So ‘big ticket’ subjects are becoming harder and riskier to target. This has led to the media being forced to go down-market in search of headline or programme fodder whose excitement at being headlined is likely to exceed their desire and ability to litigate over any adverse coverage they receive.
The result is that the media is serving up a menu of junk food to a ‘dumbed down’ less discerning and less critical public. The proliferation of media content and mechanism for its delivery has turned it into a fast food commodity. People don’t have to rely on any one source for their information or entertainment. Quantity comes ahead of quality. Quality journalism and news programmes cost more than gossip columns or reality TV shows. A quick glance at the front pages or tv schedules on any given day sees the trials and tibulations of ‘no hopers’ grappling in some jungle or on some dancefloor trump the less surreal and more real actuality of political, social or economic analysis.

Commercial pressure on the media to deliver profit-yielding front pages is shifting the emphasis from (ethically pure) substantiated stories to the less neutral and, in its disregard for the consequences to a person’s privacy or reputation, less responsible journalism.

What is clear is that what is intended to be a human right is being abused by celebrities to try to construct some kind of image or commercial right which is totally at odds with what the human rights laws are for.

So the deeper the pockets the more the protection celebrities and others can buy to protect their nefarious antics. This is not privacy law at work but an example of a legal system that is complicit in giving effect to cash rich litigants. Its time to separate and create a law (which arguably already exists in the form of copyright law) that provides for the commercial exploitation of images from the important and true protection of an individual's right to their own life and space.

The problem is that celebrities and others will open their doors to a $1m photoshoot one minute and then claim privacy breach the next. The legal system should not be there to uphold such double dealing and cash generating values. Where someone commoditises and trades off their image they can't and shouldn't be allowed to use the pictures they might not like to claim their privacy has been violated.

The rules: sell your story and your body to the press then don't expect it to be private property. Misbehave when you have gone on record talking about your good behaviour then don't be surprised when you get caught out. To the extent a clebrity or anyone seeks to exploit or profit from their image then they cannot use the same constructs and legal provisions to complain about how such exploitation is perceived.

Telegraph: Celebrities use their status to protect their image