Celebrities Are Now Finding It’s Much Easier To Keep The Media At Bay With Privacy Law Suits Rather Than Cumbersome Libel Proceedings, And That Is Changing The Face of UK Tabloids

Philip Stone January 30, 2007

Princess Caroline of Monaco’s name will go down forever in European media privacy law for setting a precedent that basically says we are all entitled to a private life without media intrusion in addition to our public life. UK courts have been expanding upon that to the point that tabloid editors believe the end of “kiss and tell” is upon us.

Consider these stories -- are they fair media game?

• Information about the state of a well known model’s marriage
• Should a betrayed husband be allowed to tell (sell) to the media the story of his wife’s affair?
• Should someone who has not signed any confidentiality agreement be able to tell the media about the private affairs of a friend?

According to Foot Anstey solicitors, UK judges have ruled that all of the above are out of media bounds. In the last example a high court judge awarded Canadian folk singer Loreena McKennitt damages and an injunction after details of her private life were revealed by a “friend” in a book, and in a ruling that has shocked the media, the Court of Appeals has upheld the decision.

That case in particular has drawn wide media coverage, causing the UK’s Press Gazette to banner on its front page, “The death of kiss and tell”. The general feeling is that newspapers will stay clear for the most part from celebrities from now on because celebrities have the money to pursue aggressively such privacy judgments and it’s a far easier way for them to go than using libel law. The media’s attention, therefore, will now focus more, as media lawyer Mark Stephens told Press Gazette, to vicars (priests) and choirboys again.”

The big event in European media privacy laws that spurred all of this came in June 2004 when Princess Caroline of Monaco won a landmark EC ruling. She had sued three German magazines in 1999 that had printed pictures of her and her children out in public – sitting at a café, playing sports, out shopping etc – things any normal person would be doing during their time off from work. She said the pictures violated her privacy, but a German court ruled against her because she was a “public figure”. She appealed to the European Court of Human Rights (ECHR) in Strasbourg.

The ECHR came down strongly on her side saying basically that even public figures are entitled to privacy, and that no one can publish a picture of her during her private life without her express consent. The court said that to do so within the EC would violate her human rights under the European Convention on Human Rights. Although the ruling was directed at her, it could apply to anyone.

The court ruled that every person, however well known, must be able to enjoy a legitimate hope for the protection of his or her private life.

And the UK courts have been busy expanding on those rights. In the case of cuckold husband who wanted to sell the story of his wife’s infidelity to the media, the judge ruled that the betrayed husband might owe a duty of confidence to the adulterer and the adulterer’s family not to tell anyone about it!

Lawyers are warning the media that the goalposts have now been moved permanently on the privacy issue. The courts will now consider whether a person has a reasonable expectation of privacy when it comes to information given out by friends, colleagues and employees and whether there is any real serious public need for that information to be made public.

It brings into question, therefore, whether the Daily Mirror newspaper had invaded model Kate Moss’ privacy last year when it ran pictures of her taken in a nightclub allegedly snorting cocaine. It was her personal, private life, even though it took place in a public place. Would the fact she was allegedly taking narcotics be in the public interest or is that her own private business?

What is worrying many editors now is that the courts are creating privacy law, rather than Parliament where editors believe this should really be handled. Paul Dacre, the Daily Mail editor, said in a speech last week that caught a lot of media attention, “Britain’s judges – whose dislike of much of the media should not be underestimated – are itching to bring in a Privacy Law by the back door. Under the Human Rights Act we are witnessing the development, at a frightening pace, of an aggressive judge-made privacy law over which Parliament has no control."

She started it all

He said he could hardly believe “that a cuckolded husband didn’t have the right to speak about his wife’s adultery, that a paper would be banned from referring to royal indiscretions contained in a round-robin journal distributed to scores of people (Prince Charles sued the Mail and won on that issue) and that the media cannot reveal the identity of a Labor ex-Education Minister who sends her child to private school.”

David Price, a media lawyer, told the Independent newspaper he thought Dacre was spot-on. “What we are seeing is that the law has tilted very much in favor of protection of privacy at the inevitable expense of freedom of expression.

“That has all arisen from the decisions of judges interpreting a very general rights-based convention and placing considerable reliance on what is going on in the European Court of Human Rights in Strasbourg…Ultimately it is the public who are being deprived of reading this material.”

None of this exactly good news to tabloid newspapers in particular, that are doing everything they can to come up with the “dirt” to regain the millions of readers who have deserted them in past years. It looks like they’re going to have to be happy exposing the likes of you and me, and not celebrities and politicians and all those others we really want to read about.

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