Where next for privacy?

When Leslie Grantham complained to the PCC following publication by five tabloid newspapers of the fact that the BBC had required him to undergo treatment for a “sex addiction”, might he have fared better if he pursued his complaint through the courts? The PCC rejected his complaint. At first blush, there appeared to be a number of similarities between his case and Naomi Campbell’s. The newspapers concerned had published details concerning a medical condition and the fact that he had been required by his employers to seek treatment. On the other hand, however, no details of the treatment were given, nor indeed that he was undergoing treatment at all. The fact that Mr Grantham had himself previously revealed he was suffering from an addiction meant that reporting on his employer’s response to it did not intrude on his privacy.

The PCC was referred to the Campbell decision and distinguished it on the basis that the information published was far less private than, for example, material that might be obtained from a medical record. It held that newspapers had a right to report developments in the story and the public had a right to be informed of them. In respect of this latter reasoning it is hard to see how it differs from the Mirror ‘s argument in Campbell that they were seeking to set the record straight.

The waters now seem so muddied it is difficult for any reporter to know with certainty whether he or she is on the right side of the law. European decisions seem to suggest that the protection of privacy has become paramount but this has not necessarily translated through to the British legal and regulatory system.

In the Naomi Campbell case, the fact that the five Law Lords were split three to two on the decision only fuelled debate concerning the judgment’s likely impact in the UK. Many suggested that it was a case quite specific to its facts (some of the Law Lords themselves, in fact). Others took it as support for a slowly developing and encroaching privacy law in this country. The European decisions since, have generally supported the latter view, although it remains to be seen if this will follow in the UK.

Earlier in the year, the European Court of Human Rights ruled that German magazines which published pictures of Princess Caroline of Monaco and her family on holiday had breached her right to privacy on the basis that “the public does not have a legitimate interest in knowing where Princess Caroline is and how she behaves in her private life”, even though the pictures taken were of her in public places.

In the latest case, Princess Caroline’s five-year-old daughter has been awarded some £53,000 in compensation by the German courts for the publication of paparazzi photographs published when daughter, Alexandra, was only a baby. It was held that the child’s privacy had been invaded.

It is understandable where children are concerned that the courts are more likely to take a robust view of any so-called press intrusion. The Editors’ code in this country specifically protects children, details of whose private lives must not be published purely on the basis of the fame, notoriety or position of their parents.

Perhaps what we can establish is this:! Pictures speak louder than words -in most instances, judges (whether in the European courts or the UK courts) regard the level of intrusion by photographs as potentially greater.

! Children should be heard but not seen-it is difficult to see when it might now be justified to publish pictures of children with their parents in any circumstances. Arguably, celebrities will get greater protection if their children are there to shield them.

! The public/private divide-it is becoming more and more difficult to separate what can be considered private. Whilst the Code states that public places can be rendered ‘private’, where there is a reasonable expectation of privacy, it has always been regarded that innocuous behaviour in public places such as going out shopping, could not justify a claim for breach of privacy. However, Europe appears to have different views on this.

The law is far from clear. The freedom of the press is one of the cornerstones of a modern democratic society. Whilst it has always been accepted that individuals’ rights to privacy must be carefully balanced, it is important that the balance is maintained without the need for excessive self-censorship. In any event, the law should provide clarity, enabling the media at least to know where the line is drawn, so should it choose to step over it, there can be no argument on responsibility for the consequences.

James Quartermaine is a solicitor in the Media Group at Charles Russell

James Quatermaine

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