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Britain's Courts are, in effect, legislating to protect privacy and restrain the tabloids. It sounds good, but it's dangerous.
«I'm with you on a free press, it's the newspapers I can't stand,» says a character in Tom Stoppard's play, Night and Day. Britain's Judges appear to agree: it seems they tend to curb the freedom of the press to protect individuals' privacy.
For a nation of secretive people, Britain is curiously casual about privacy. Its newspapers intrude on the lives of their subjects, celebrated or obscure, more than those in any other country. That is partly because the newspaper business, with ten national daily papers fighting for a shrinking market, is viciously competitive. But it is also because governments have been unwilling to take onthe press and legislate, in the way that most other rich countries have, to protect the privacy of individuals.
In Britain, the press is left to regulate itself through the Press Complaints Commission. The PCC’s reputation is currently at a low ebb. It recently lost its chairman, Lord Wakeham, who stepped down because he is a director of Enron. Lord Wakeham is regarded as an excellent fixer whose skill at managing his relationship with powerful people is not matched by a determination to protect the targets of the tabloids. Charles Moore, editor of the Daily Telegraph, says he dislikes, "the cosy relationship between the PCC's chairman, its director and the tabloids."
Two recent decisions have been widely criticised. The PCC upheld a complaint from Tony Blair about a diary item in the Daily Telegraph which revealed that his 17-year-old son Euan had been interviewed for a place at Trinity College, Oxford. As the university's admissions policy had recently been attacked by the chancellor for being "an old boy network" and the head of the college, Lord Beloff, was a close friend of the Blairs, the paper understandably defended the piece on public-interest grounds. The PCC disagreed, saying the article was an unnecessary intrusion.
The PCC took a different line when the Sunday People published a set of nude pictures of Sara Cox, a radio presenter, and her husband on their honeymoon. The paper's editor, Nell Wallis, a member of the PCC’s code committee, apologised. That was sufficient for the commission but not forMs Cox. She is now suing for damages which are likely to be sizeable. The Daily Star, which published snatched seminude pictures of Amanda Holden, an actress, paid £40,000 damages and £75,000 in costs in an out-of-court settlementlast year.
A decade ago, intrusion into the lives of minor celebrities was not something that courts felt they could remedy. In 1987, Gordon Kaye, an actor, was photographed lying in hospital with serious head injuries. His claim againstthe Sunday Sport was dismissed in 1990. The court ruled that "there is no right to privacy."
But now the Judges are brandishing the Human Rights Act, which incorporates the European Convention on Human Rights, and guarantees a right to privacy. Six years ago, Lord Bingham, then Lord Chief Justice, warned that if the government failed to legislate on privacy, "the courts will not be found wanting." During the passage of the HRA , the Lord Chancellor, Lord Irvine, said that the judges were "pen-poised" to develop a privacy law.
A series of cases before the courts shows that the Judges were serious. Catherine Zeta-Jones and Michael Douglas, for instance, have brought a case against Hello!. They had grantedits rival, OK!, exclusive rightsto the photographs of their wedding. That did not stop Hello! from getting its own pictures and publishing them. In a preliminary ruling, the Court of Appeal declined to grant an injunctionbut said that there was an arguable right to privacy even though the actors had approved use of the wedding photographs elsewhere.
Another case still before the courts was brought by Naomi Campbell, a model, against the Mirror, which published a photograph of her leaving a meeting of Narcotics Anonymous. Judgment on the action, brought on grounds of privacy and breach of confidence, has been reserved; but informed sources predict thatMs Campbell is likely to win.
Lord Justice Sedley, one of the three judges in the Douglas and Zeta-Jones case, went so far as to say: "The law recognises and will appropriately protect a right of personal privacy." If celebrity claimants are to have commercial agreements protected by a right to privacy, then there will be a flood of speculative litigation.
The main consequence of judicial activism will be to threaten the livelihoods of tabloid newspapers and the paparazzi who feed them. Nobody is likely to cry about that since the tabloids are generally despised even by those who read them. But there is something more serious at stake. Law put together piecemeal by the courts will be messy, and it risks protecting secrecy that should be exposed as well as privacy that shouldn't.