Much has been written about the Douglases’ recent victory over Hello! (Douglas & others v Hello! Ltd & others). The defendants are quick to refer to the scoreboard result of “only” four claims out of 13 succeeding.
The claimants rest content in the knowledge that their principal claims in confidence and data protection succeeded with damages and costs to be dealt with at a later date. But where does such spin leave the media’s picture desks in making day-to-day decisions looking to stay within the law and the provisions of the Editors Code of Practice?
Celebrities have to go out in public and will often be photographed in public places. In Hello!, the judge stated that the case was nothing to do with photographs of the Douglas family in public.
The terms of the code in this respect are familiar, in particular that public places may be deemed “
private” and therefore out of bounds for long lens photography where there is “a reasonable expectation of privacy”.
The significance of the code is found in the Human Rights Act 1998. The judge was bound to consider the Douglases complaint against Hello!’s freedom of expression. In doing so he was bound to consider the code and the extent of Hello!’s compliance with it. The judge read the code to mean “inescapably” that the “surreptitious use of short lenses” in private places was “at least equally unacceptable” as using long lenses.
The code itself provides that it “should not be interpreted so narrowly as to compromise its commitment to respect the rights of the individual, nor so broadly that it prevents publication in the public interest”.
Unfortunately, Hello! was without a public interest defence and this did little to help its position when the judge balanced competing rights of privacy and expression under the HRA. Nevertheless, such judicial interpretation of an industry code raises further uncertainty for those seeking to work within it.
The significance of compliance with the code clearly found in the Hello! decision raises the stakes even higher.
When considering the Data Protection Act and whether or not Hello! might rely on certain saving provisions for the media, the judge said “that the public would be interested is not to be confused with there being a public interest”. Lord Woolf, in the Garry Flitcroft case, had previously remarked, when dealing with interim applications for injunctions, that it was legitimate for the media to publish interesting information not of itself in the public interest.
The Court of Appeal revisited this in Campbell v MGN Ltd but excluded from Lord Woolf’s approach “private facts which a fair minded person would consider offensive to disclose”. In Hello! the judge considered an Australian decision (cited in both Flitcroft and Naomi Campbell) which referred to disclosure of private information being “highly offensive to a reasonable person”.
The judge rejected this as a test for what may be confidential and as an exclusive definition of what is private. The judge was clear that no law of “privacy” was necessary unless the current law of confidence fell wanting and Parliament failed to act.
He said recent cases were a “fusion” of the pre-existing law of confidence and rights and duties arising under the HRA. Rather than fusion, the media, however, may now only see confusion. Still, privacy law or legislation await another day.
Benjamin Beabey is a solicitor in the media team at Farrer & Co
by Benjamin Beabey