A Court of Appeal ruling that a celebrity’s reasonable expectation of privacy should be decided on a case-by-case basis is bad news for journalists, according to Caroline Kean from media law firm Wiggin.
Speaking at a session on privacy and reporting restrictions, she said that although journalists had previously had clear legal guidelines, recent cases had made the issue a constant ‘moveable feast”.
The privacy case brought by Harry Potter author JK Rowling, to stop the publication of long-range shots of her children, had been good news for journalists because the judge had ruled that the family did not have a general right of privacy while ‘walking down the street”, she said.
But it was worrying, she said, that the Court of Appeal ruled that whether anyone had a reasonable expectation of privacy ‘would be decided on the individual merits of the case”, such as the nature of the intrusion and publication, the extent to which consent was given, what the claimant was pictured doing, and the place it happened.
‘This should strike fear into every journalist’s heart, because it means you can never have any intervening guidelines on what’s gone before, you’ve always got to judge things on the merits of the case,’said Kean.
The Naomi Campbell privacy case in the House of Lords in 2005, in which she sued Mirror Group Newspapers for printing pictures of her leaving a
Narcotics Anonymous meeting, had set clear boundaries as to what publishers could publish, said Kean.
The ruling from the Lords, the highest court in Britain, meant readers could know ‘what she looked like if and when she pops out for a bottle of milk”, but health matters such as a drug problem were inherently private.
Kean said the Loreena McKennitt High Court privacy ruling in 2006 – and an unsuccessful appeal against it last year – gave some helpful guidelines on the type of story that may be considered private. The Canadian folk singer won a privacy case in the High Court against a former friend who wrote a book about her – large portions of the book had to be cut out of UK editions.
‘The judge in the McKennitt case made some very important distinctions between what is trivial and what is serious,’said Kean. ‘If it is about sex, relationships, health, they are going to be regarded as private.”