Could Phelps Sue The News Of The World For Privacy Invasion?

Philip Stone February 3, 2009

Rupert Murdoch’s UK Sunday tabloid News of the World can justifiably boast of its exclusive picture that shocked the sporting world of 8-time Olympic swimming Gold Medalist Michael Phelps using a glass pipe to smoke pot, as he has now admitted, while visiting the University of South Carolina last November. But does such a picture run afoul of UK privacy laws?

Under various EU and UK privacy rulings over the years Phelps might have a case to take the News of the World to court for violating his privacy. His act, which he has apologized for – very clever PR to try and nip this one in the bud as quickly as possible --  took place at a private event and British judges have been ruling ever more strongly over the years that what happens in private should stay private.

It all goes back to a judgment from the European Court of Human Rights in the landmark Princess Caroline case that even public figures are entitled to privacy, and that no one can publish a picture of anyone during their private life without expressed consent. The court said such publication violates human rights under the European Convention on Human Rights and the basic ruling is that everyone, no matter how well known, must be able to enjoy a legitimate hope for the protection of his or her private life.

Perhaps the most forthright example of how that law applies in the UK came from the Max Mosley case last year in which the then 68-year-old son of the 1930s British Fascist leader Sir Oswald Mosley and who is now the president of the governing body for Formula 1 racing, sued the News of the World for running video on its web site of Mosley romping in his bedroom with five prostitutes.

Mosley sued the newspaper under Article 8 of the European Convention on Human Rights that protects EU citizens’ privacy. Article 10 of the same convention protects freedom of expression. So, with such a conflict with whom do you think the UK court sided? With Mosley, of course, and the court awarded him £60,000 (then around €100,000, $130,000). For that kind of money the NoW could well say it was worth the cost, but under such British legal proceedings the losing side is usually told to pay the costs of the winning side and when all is said and done the total cost to the newspaper was close to £1 million. Still, considering how much money the newspaper makes each Sunday that’s probably still petty cash.

In that case Mr. Justice Eady made it very clear how the privacy law was to be interpreted. "There was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website - all of this on a massive scale. It is perhaps worth adding that there is nothing 'landmark' about this decision. It is simply the application to rather unusual facts of recently developed but established principles." The only positive ruling for the newspaper was that Mosley had sought to make case law by getting punitive damages – that’s where the big money is --   and on that the judge refused.

So it’s possible Phelps could have a case, but for the kind of money being awarded by British courts it’s probably not worth the publicity – better to lay low for a while and hope everything blows over instead of reminding everyone what has happened in what would certainly be a circus-like atmosphere outside the court.

In view of how the British courts have been ruling one should take notice of a piece  by Tunku Varadarajan, opinions editor at Forbes.com who wrote, “We need to ask whether anything of value--to the readers, to society at large--was imparted by the News of the World's story, and, especially, by the salivating manner of its telling…

“Here's a question for Rupert Murdoch (proprietor, News of the World): When your daughter, Grace, now eight years old, is a little older ... say 16 ... How would you like it if a tabloid (it probably won't be the News of the World) published a front-page picture of her doing a bong hit at a private party on the Upper East Side of Manhattan? Not much, I reckon. You will ask--and ask, no doubt, with intense irritation: ‘Is that really news?!’ And you'd be right--very right--to ask the question.”

Buried in News of the World story is one fact the newspaper can be proud of – that it did not succumb to various offers by Phelps’ agent to try and buy off the newspaper from printing the story. Phelps’ PR people knew their man would take a massive PR hit and they figured the best way to kill the problem was to ensure it never saw the light of day. So, according to the NoW, the agents told the newspaper that if it killed the story and picture then Phelps would write a column for the Sunday paper for three years, host events for the newspaper, and get his sponsors to advertise in the newspaper.

The NoW quotes a Phelps spokesman saying, “It’s seeing if something potentially very negative for Michael could turn into something very positive for the News of the World.”

Phelps earns close to $10 million a year from endorsements from such companies as Visa and AT&T, Hilton Hotels, Omega watches, Kellogg, and Speedo swimwear. Will those sponsors now invoke the morals clause which is usually written into such contracts? His agent has said previously he believes Phelps could earn more than $100 million over his lifetime. Still?

Remember what happened with model Kate Moss when the Daily Mirror a couple of years back had pictures of her allegedly snorting cocaine at a night club? There were short-term fallouts from some, but not all, sponsors, but now she is back on top of the mountain. But are Olympic sporting heroes and models in the same celebrity category?

There’s much soul-searching on what to do with Phelps, but his almost immediate apology seems to have satisfied most that he is sorry for what he did and that he promises to be a good boy and role model from now on. The International Olympic Committee seems to be forgiving saying “Michael Phelps is a great Olympic champion. He apologized for his inappropriate behavior. We have no reason to doubt his sincerity and his commitment to continue to act as a role model." As ftm has said many times, the Olympics are, above all, big business, and Phelps is (was) a great ambassador that the business would rather not lose.

Phelps has already paid one small price for not being the American sporting role model everyone had thought he was – he was in Tampa for various promotional events surrounding the Super Bowl and he was to have been at the game Sunday, perhaps even honored by the NFL as an American hero, but he left town early. Smart. The NFL did, however, still had some real heroes to honor – the crew of the US Airways plane that crash landed into the Hudson River with 155 lives saved.

And perhaps one question everyone – personalities included – should be asking is whether, with the advent of camera phones and thus the ability for pictures to be taken easily and serriptiously just about anywhere, can any of us really expect privacy anymore?

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