Putting a price on invasion of privacy

On General Election day last year, the Daily Star decided that its readers needed a bit of cheering up and so ran what was supposed to be a two-day feature on actress Amanda Holden and her husband, comedian and TV host Les Dennis, both high-profile celebrities with pretty public private lives.

But, rather than shots of them arriving stylishly dressed for the latest showbiz premiere, the newspaper covered its front and centre pages with pictures of them on holiday at a private villa in Tuscany, with Holden sunbathing topless in the garden.  Holden may like to show her cleavage, but only in designer dresses – not the swimming pool.

The couple said they were horrified by the pictures. However, their lawyers did not go to the Press Complaints Commission to enforce the Code of Conduct because the newspaper had promised "more great pictures the next day". Instead, they obtained an injunction to stop publication of any more photographs and brought a claim for invasion of their privacy, as the commission does not ban future pictures.

The Star argued that publication of the photographs did not amount to invasion of privacy because the garden was visible from a public track and the camera was not equipped with a long lens (the code outlaws the use of long-lens photography to take pictures of people in private places without their consent). But just before Christmas, without admitting liability, the newspaper stumped up £40,000 in damages, as well as the (larger) legal costs and published an apology.  There are other privacy cases in the pipeline and the settlement will be used by lawyers for claimants as a "tariff", arguing that their case in hand is considerably worse than experiences of Holden and Dennis and worth even more. So editors beware!

The sum of £40,000 may seem persuasive for lawyers and journalists, but it is unlikely to sway judges when the privacy cases come before them later this year. They have to bear in mind that, in the real legal world, £40,000 is the sum awarded to innocent victims who have lost an eye or a leg. It would be crazy to the man in the street if a picture of a leg or breast was worth more than the real thing.

Libel is about untruth, privacy involves revealing truths which are entitled to be kept secret. Judges fought a long war to try to reduce libel awards to figures that were not offensive to less-celebrated customers of the courts and foreign states (the US refused to enforce English libel awards).  Damages for privacy are more likely to be sensible, like those awarded for breach of contract, than silly, like the £350,000 recently used by a jury to punish the News of the World.  But editors still need to be aware that invasions of privacy can cost. It’s time to look closely at that insurance policy.

Perhaps we need to review Oscar Wilde’s wise advice to celebrities: There is only one thing in the world worse than being talked about – and that is not being talked about.

Duncan Lamont is a partner at City law firm Charles Russell

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