Legal actions here by supermodels, "ladettes" and Hollywood actresses have brought the emerging law of privacy onto our front pages. But are these actions really about a new right of privacy or is the issue that the law needs to address the absence in the UK of "personality" laws? It is easy to forget that the Human Rights Act 1998 refers to the relationship between public authorities and the individual, rather than between citizens. Article 8 (privacy) is (or should be) counterbalanced by Article 10 (freedom of expression, ideas and information). A law of personality, based on the US or French approach, may sidestep this dilemma.
The publication by The Sunday Times of lists of the rich and famous and their earnings are invasions of privacy (what right does the public have in knowing what Robbie Williams earns in a year?) but seem to cause no complaint -the Pay List 2001, published in November, had, among the top 10 women earners, JK Rowling (£24.8m) and Catherine Zeta Jones (£5.5m), women keen to protect the privacy of themselves and their families. The Sunday Times’ Rich List also contained litigants Naomi Campbell (£1.55m – breach of privacy by The Mirror’s publication of a picture of her leaving an AA meeting) and Victoria (£1.6m) and David (£6.5m) Beckham (privacy and confidentiality issues arising from a book by an aide and photographs of the inside of their new house). But this invasion of privacy goes unpunished.
The law in the UK does not give these celebrities a right of publicity (against the misappropriation by another of the commercial value of their own identity) so newspapers can make unauthorised use of a celebrity’s image to boost sales provided the public is not led to believe that the product is authorised or sponsored by the celebrity.
The UK also fails to give a right of personality (the exclusive intellectual property right of a celebrity to use his or her name, image, signature and so on) unless the celebrity has taken the time and money needed to register as a trademark a name for a particular class of services or goods. For example, Elvis Presley’s signature or George Foreman’s name for cooking
In France, one’s likeness can be protected by the strict privacy laws but the publicity right to protect a celebrity’s likeness extends far beyond mere privacy and is not limited to the face, but can extend to the shape of the body or even to any recognisable detail of the body.
French law allows the photographing of public figures in their public lives but must be for the purpose of providing information (hard news) and not for publicity purposes or for mere commercial exploitation. So, to use a celebrity’s likeness for anything other than a real news story, the publisher must have consent or damages may be awarded.
Judges are only just starting to make our law of privacy and it may be worth Parliament considering the introduction of other limited rights, rather than having a blunt law of privacy here, which stifles public debate, allows politicians and celebrities to misrepresent and misbehave in secret, and issues such as HIV in hospital staff to go unreported. What many celebrities (and their advisers) seek is to be paid a fair share when others seek to make money on the back of their fame and marketability.
One only has to follow the antics of Geri Halliwell to see that they work hard for the money. But caution is needed, and one remembers Mr Justice Astbury: "Reform! Reform! Aren’t things bad enough already?"
Duncan Lamont is a media partner at the City law firm Charles Russell