Media Bulletin
Edition 30 - August 2008
Kiss & Don’t Tell..?
The decision of Eady J in Max Mosley -v-
News Group Newspapers Limited on 24
July 2008 provides an opportune
moment to consider recent decisions in
the area of privacy both by the Courts
and Ofcom. Therefore this Bulletin
concentrates on this area although it
must be emphasised that there have
been no seismic changes in the
underlying principles applicable which
are now well established, in particular
as a result of Campbell –v- MGN and Von
Hannover –v- Germany (involving
Princess Caroline of Monaco). In
addition to the Mosley case, two other
decisions - Arthur Wood –v-
Commissioner of Police for the
Metropolis and David Murray –v- Big
Pictures (UK) - have considered the
application of the still evolving privacy
principles and some useful insight can
be gained from all three decisions.
Ofcom has also provided some
interesting guidance on the issue of
privacy arising under the Ofcom
Broadcasting Code and fortunately for
broadcasters and programme makers,
appear to be taking a more robust and
practical attitude to this issue than the
Courts.
LEGAL
Underlying all of these decisions are the
principles laid out in the Campbell case.
These can be simplified and summarised
as follows: the first question is whether
the individual concerned had ‘a reasonable expectation of privacy’ in
relation to the activity in which they
were engaged. This is an objective test
and the House of Lords put it this way:-
“The question is what a reasonable
person of ordinary sensibilities would
feel if she was placed in the same
position as the claimant and faced the
same publicity”.
If there was a reasonable expectation of
privacy, the next question is how the
balance should be struck between the
individual’s right to privacy on the one
hand and the publisher’s right to publish
on the other. The court weighs the
competing rights of privacy and
freedom of expression in the light of an “intense focus” upon the individual
facts of the case. Neither right takes
automatic precedence and in order to
determine which should take
precedence the Court examines the
facts closely to decide whether some
consideration of public interest may be
said to justify any intrusion into an
individual’s privacy.
The facts of both Mosley and Murray
have received wide publicity and there
is no need to repeat these in any detail. Put simply the Mosley case involved
disclosure by the News of the World of
details of a consensual S&M romp
involving five women with Mosley. The Murray case, more prosaically,
being a privacy claim bought by author
J K Rowling on behalf of her young son
David who was photographed in an
Edinburgh street.
Mosley
Eady J. found no difficulty in concluding
that the News of the World had
breached Mosley’s right to privacy and
that there was no public interest in
doing so. Consequently he awarded
Mosley £60,000 in damages. In view of
the evidence that came to light at the
trial, or rather the lack of it in the case
of the News of the World whose key
witness refused to testify, this was not
a surprising decision. Eady commented
that “one is usually on safe ground in
concluding that anyone indulging in
sexual activity is entitled to a degree
of privacy - especially if it is on private
property and between consenting
adults (paid or unpaid)” and he could
find no public interest in the disclosure
of this information. Furthermore it was,
he considered, highly questionable
whether in modern society the defence
of disclosure of inequity (the tabloids’ standby defence in such circumstances)
in a privacy claim can be applied to
sexual activity, fetishist or otherwise,
conducted between consenting adults in
private. This was to Eady a very
straightforward decision which has
much exercised the media who regard him as generally being their foe. However Eady did raise in
passing an argument on public interest that the media may
want to pursue in future cases. As the law presently stands
it is for the Courts to decide whether a particular
publication was in the public interest. Eady suggested that
public interest may fall within a range of possible
conclusions.
“It would seem odd if the only determining factor was the
decision reached by a judge after leisurely debate and
careful legal submissions….. there may yet be scope for
paying regard to the concept of ‘responsible journalism’”.
There is an obvious analogy with the use of this concept in
libel and Eady suggested that when “public interest’ has to
be considered in the field of privacy a judge should enquire
whether the journalist’s decision to publish was reached as
a result of carrying out enquiries and checks consistent with ‘responsible journalism’. All well and good in theory but if
responsible journalism includes an obligation to obtain
comment from the individual at the centre of the story that
will only increase the risk of injunctive action being taken
(and which are far more readily granted in privacy matters
than in libel) and the story being frozen until a full trial
months later. By then the value of the story may well have
been lost.
David Murray
Last year J K Rowling’s much publicised claim for breach of
privacy was struck out by Mr Justice Patten, who was
unable to find that her 19 month old son David, being
pushed down an Edinburgh high street in his pushchair by
his parents, had a reasonable expectation of privacy. The
Court of Appeal has reversed this decision holding that the
claim should not have been struck out and that the matter
should go to a full hearing because it is ‘at least arguable’ that the son had a reasonable expectation of privacy.
The Court said: ‘The question whether there is
a reasonable expectation of privacy is a broad one, which
takes account of all the circumstances of the case. They
include the attributes of the claimant, the nature of the
activity in which the claimant was engaged, the place at
which it was happening, the nature and purpose of the
intrusion, the absence of consent and whether it was
known or could be inferred, the effect on the claimant and
the circumstances in which and the purposes for which the
information came into the hands of the publisher’.
At first instance the Court had reached the conclusion that ‘there remains an area of innocuous conduct in a public
place which does not raise a reasonable expectation of
privacy…,’ In this case, ‘If a simple walk down the street
qualifies for protection then it is difficult to see what
would not.’
But the Court of Appeal disagreed. It could not be said as
a matter of principle that a trip to the shops was anodyne
and incapable of protection - everything depended on the
circumstances. And if one of those circumstances was that
the subject was a child, this could make a substantial
difference: ‘The position of an adult may be very different
from that of a child’.
There is, of course, a clear distinction between the mere
taking of photographs and their publication or other use. This was clearly recognised by the Court in Campbell when
it emphasised that the famous and not so famous who go
out in public must accept that they may be photographed
without their consent; just as they may be observed
without their consent, but “the fact that we cannot avoid
being photographed does not mean that anyone who takes
or obtains such photographs can publish them to the world
at large”.
Wood v Police
This approach in relation to photographs was adopted in
Wood –v- The Commissioner of Police in which Arthur Wood,
a media co-ordinator for the Campaign Against the Arms
Trade (“CATT”), sought judicial review of the Metropolitan
Police’s decision to take and then store in its records
a photograph of him on the street as he left Reed Elsevier
Plc’s AGM. Wood had previously purchased a share in Reed
Elsevier in order to be able to attend its AGM at which he
asked one ‘unobjectionable’ question about Spearhead
Exhibitions Limited a subsidiary of Reed which organises
trade fairs for the arms industry. He had no criminal record
and behaved lawfully throughout, but he was seen by the
police speaking to another CATT activist who was handing
out leaflets (also lawfully) and a third activist, with
a criminal record from her campaigning activities who had
been ejected from the AGM.
The Court considered all the recent authorities and
determined that neither the taking nor retention of the
Wood’s photograph was in breach of his right to privacy and
even if it were then any such interference was necessary
and proportionate in light of the police’s genuine concerns
about further unlawful actions against Reed Elsevier.
It observed: “the mere fact of covert photography is [not]
sufficient to make the information contained in the
photograph confidential. The activity photographed must
be private.” The judge concluded that there must be
something more than the mere taking of a photograph to
engage the subject’s right of privacy whether that is the
recording of the minutiae of that person’s life or disclosing
medically confidential information.
Notwithstanding the Court of Appeal’s decision in Murray,
the court observed that the courts have usually taken “a very robust approach” to complaints concerning alleged
interference with rights of privacy arising from the taking
of photographs in a public place and in all the circumstances Mr Wood could not have a reasonable
expectation of privacy in respect of being photographed
whilst leaving the Reed Elsevier AGM. As retention of the
photograph was for limited purposes and this was
proportionate to a desirable aim, it did not amount to a
breach of any privacy right.
There are, no doubt, some policy tensions evident in
Murray and Wood and it is possible to take two conflicting
views on the significance of the Murray case. One is that
if entirely innocuous photographs of celebrities’ children in
public places can be restrained then it is inevitable that
pictures of the celebrities themselves would also be
restrained (thus reflecting the outcome of the ECHR
Princess Caroline case). The alternative view is that this
was an entirely uncontroversial application of the law to
protect the privacy rights of children, akin to that which
is afforded in other areas of laws involving children, namely
family and criminal law.
Our opinion is that Murray decision will, in due course, be
made on the narrow grounds of protecting the privacy of
children but nevertheless it does reflect the direction of
travel of the law as it moves away from protecting the
disclosure of private information/activity to the simple
protection of private/family life wherever that may take
place. This is partly a reflection of the elastic nature of
the threshold test for a privacy claim, i.e. “reasonable
expectation of privacy” which reflects changing social
norms and also the underlying premise for the right of
privacy as expressed by Lord Hoffman in the Campbell case
i.e. that it was the “protection of human autonomy and
dignity”. In our view it is almost inevitable that there will
be a drift towards protecting an individual’s activity as
a private person, whether taking place in public or not,
rather than their private activities.
There must be some risk that in time the UK Courts will
adopt the approach in the Princess Caroline case where an
injunction was granted stopping the publication of pictures
of her going about her daily life and the ECHR held:-
“…the publication of the photos and articles in question, of
which the sole purpose was to satisfy the curiosity of
a particular readership regarding the details of the
Applicant’s private life, cannot be deemed to contribute to
any debate of general interest to society despite the
Applicant being known to the public.”
This is of course a very high test and as yet this doctrine has
not been applied by the U.K. Courts but there is no
doubting its influence on the decisions in the UK and the
Murray case may well be an important marker to the extent
to which the U.K. courts will follow Europe.
If implemented rigorously, the Princess Caroline case could
in theory have a very profound effect on the current tabloid
and celebrity culture. However the damages currently
awarded for privacy claims are relatively modest and the
practical effects may be limited. Mosley was awarded £60,000 for having his life “ruined”, the highest previous
award was to Michael Douglas and Catherine Zeta Jones
against Hello magazine of £14,600 and Naomi Campbell was
awarded £3,500 against the Daily Mirror. Will these sorts of
figures curb the tabloids from splashing another Mosley
style story? It seems unlikely.
REGULATORY OFCOM Code Decisions
Section 8 of Ofcom’s Broadcast Code includes the
requirement that “Any infringement of privacy in
programmes, or in connection with obtaining material
included in programmes, must be warranted”. Ofcom has
sensibly adopted the basic privacy test devised by the
Courts, i.e. did the complainant have a legitimate
expectation of privacy in relation to the particular activity
being undertaken? Recent Ofcom Broadcast Bulletins
contain a number of adjudications on complaints of
unwarranted infringements of privacy but apart from one,
they are relatively uncontroversial. For instance, in one
case, the use of surreptitiously filmed material was held to
serve no public interest and in another the broadcast of
the complainant’s mobile telephone number, an overheard
telephone conversation featuring her and the disclosure of
the interior of her bedroom were all held to constitute
unwarranted infringements. However one particular
adjudication does raise a point of general interest which
appears to set a course on privacy different from that being
followed by the Courts. This arises from a complaint made
by Gareth Nixon relating to the making and broadcast in
January 2008 of the ITV Programme “The Truth about Binge
Drinking”.
The opening sequence of the programme featured
a montage of clips in which various individuals were shown
consuming, or under the influence of, alcohol.
The complainant was shown in two brief shots. The first
showed Mr Nixon walking with his friend who appeared to
be helping him to stand upright. The second showed Mr
Nixon sitting on the pavement with his friend. In the
programme as broadcast, Mr Nixon’s face had been blurred
in the first shot, but not in the second.
Mr Nixon complained that his privacy had been
unwarrantably infringed as he had been filmed without his
knowledge or consent and the programme had broadcast
an identifiable shot of him in which his face had not been
obscured.
Ofcom found that Mr Nixon did not have a legitimate
expectation of privacy in relation to the making or
broadcast of the programme. It ruled that Mr Nixon had
been filmed in the open, on a public street, when his
actions had been clearly visible to others around him.
While Mr Nixon had been intoxicated at the time of filming, neither this, nor his actions (which were
not of a particularly sensitive or private
nature) afforded him a greater
expectation of privacy.
It is interesting to speculate whether
a Court would have reached the same
conclusion on these particular facts.
The obvious comparison with the Nixon
complaint is the decision of the
European Court in Peck –v- United
Kingdom. In that case Peck had been
filmed on a public street by CCTV in
a distressed state carrying a knife and
the distribution of this material by the
local council as part of a crime
awareness campaign was determined to
be an invasion of his privacy.
The sensitive feature of this case was
that Peck had tried to slash his wrists
with the knife whilst under CCTV
surveillance, although this aspect of his
behaviour had not been captured on
film. The Court concluded that although
the material did not show the
attempted suicide it was nevertheless
related to it and this was a sensitive,
distressing and embarrassing incident
which Peck would not wish to have been
revealed and in relation to which he had
a reasonable expectation of privacy.
The Strasbourg Court concluded: “The
relevant moment was viewed to an
extent which far exceeded any exposure
to a passer-by or to security observation
and to a degree surpassing that which
the Applicant could possibly have
foreseen when he walked into
Brentwood …”.
The then relevant regulatory
authorities, the Broadcasting Standards
Commission and the Independent
Television Commission, also concluded
the broadcasting of the material was an
unwarranted infringement of Mr Peck’s
privacy.
Given the circumstances it is right to be
sympathetic to the conclusion reached
in the Peck case and to acknowledge
that it can be distinguished from the
Nixon complaint. But how is
a broadcaster to know about these
differing circumstances? Imagine this
speculative scenario: In the Nixon case
he might have just suffered
a bereavement and found himself the
sole carer for three young children;
a Quaker and a committed tee-totaller
he was on this rare occasion swept away
by his grief and took to drink. His
drunken behaviour was deeply
embarrassing and it occurred at
a personally sensitive moment. Its
broadcast exposed him, in the words
used in Peck, ‘to a degree surpassing
that which the he could possibly have
foreseen’. In these circumstances
perhaps Ofcom’s decision would have
been different; there is little doubt that
the decision of the Courts would have been different.
The obvious difficulty is that it is
impossible for a programme maker or
broadcaster to be aware of all these ‘circumstances’. For this reason alone,
the approach of Ofcom in the Nixon
complaint is to be preferred to that of
the Courts. Ofcom looked at the
apparent known facts that Nixon was
filmed in public not doing anything, on
the face of it, particularly sensitive or
private and reached a view on that
basis. By contrast the Court in Murray
suggested that all “circumstances” were
relevant in reaching a decision including
the “attributes” of the person
photographed and the “effect” on that
person. This approach means that when
making a decision on certain aspects of
privacy (particularly those relating to
events in public places) it is going to be
very difficult for publishers to be sure of
their grounds prior to publication.
Unlikely as it may be, it is to be hoped
that the Courts can be pulled back from
this all encompassing approach and
resist the temptation to follow the
European Court approach in the Princess
Caroline case.
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