The lesson from a House of Lords privacy ruling last week is that if you want to protect your private life, make sure your image is valuable.
Martin Soames The Guardian Monday October 20, 2003
We have had wedding cake privacy (Douglas and Zeta-Jones), catwalk privacy (Naomi Campbell), even a television presenter claiming privacy in a brothel (Jamie Theakston) and a sportsman crying foul for intrusion on footballers' lives (Garry Flitcroft). Can a working law of privacy be built on these candyfloss cases or do they take place in a parallel universe which has nothing to do with the lives and concerns of ordinary people?
Whether they are brought under the traditional heading of confidentiality or not, the strength of feeling in celebrity intrusion cases cannot be doubted. The common cry of anyone famous whose party or private life has been gate-crashed by the media is one of violation.
When the Daily Mirror ran a story about Naomi Campbell's drug addiction she said: "I felt shocked, angry, betrayed and violated by the article." Catherine Zeta-Jones described Hello!'s bad fairy appearance at her wedding in similar terms: "It was an appalling and very upsetting shock ... I felt violated and that something precious had been stolen from me."
Catherine Zeta-Jones was, of course, right: something valuable had indeed been stolen from her -- her image. She acknowledged that controlling her image was vital to her career as a film star. She and her husband did not try to block publication of all photographs of their wedding: instead they tried to retain control and approval of the ones which they chose. They could do this because their images are valuable commodities in the market.
Similarly, Naomi Campbell makes her living by being photographed in public -- admittedly on occasions of her own choosing rather than in a woolly hat outside Narcotics Anonymous in the King's Road. By contrast, people without wealth who neither have nor seek fame of any kind simply cannot protect their image or exercise control over their right to privacy by selling it; they have nothing to bargain with.
Peck v UK is a good example. In August 1995 Geoffrey Peck was, like Naomi Campbell, the Douglases and Jamie Theakston, photographed without his knowledge. The similarities end there. Peck was not a star: he was an ordinary person suffering from depression. He was filmed on CCTV in Brentwood High Street with a kitchen knife in his hand shortly after trying to slash his wrists. In order to publicise the virtues of its CCTV system, Brentwood Council sold stills from the footage to two local newspapers and longer extracts to Anglia Television and the BBC, all of whom printed or broadcast it.
The surrounding circumstances were not made clear in the published material: Peck was presented not as a failed suicide but a dangerous man wandering the streets with a knife. He complained successfully to the Broadcasting Standards Commission and the Independent Television Commission, but unsuccessfully to the Press Complaints Commission. And he applied unsuccessfully for a judicial review of the council's decision to license the CCTV footage. None of the commissions to which he complained could award damages.
Having exhausted all legal possibilities in this country, Peck finally went to the European court of human rights which in January this year ruled that his right to respect for private life had indeed been violated (that word again), and awarded him £11,800. Further, it found that in giving Peck no effective remedy for the violation, the English law of privacy was deficient. In highlighting the failings of English law the Peck case has achieved more than any of the celebrity actions. An incident on a suburban high street has established that there should be an actionable right of privacy in this country.
When the House of Lords gave judgment last week in Wainwright v Home Office the focus was again on the protection which the law gives to the private lives of ordinary people. Again, this was a case about privacy alone, not confidentiality.
Unlike the celebrity cases, Wainwright involves actual personal violation. In January 1997 Mrs Wainwright went to visit her son Patrick, an inmate at Armley jail in Leeds. She was accompanied by her 21 year old son, Alan, who suffered from cerebral palsy and some mental impairment. While waiting for their visit they were told they were suspected of bringing drugs into the prison. They were then separated and strip searched in humiliating circumstances. Mrs Wainwright believed that while being searched she could be seen from a building across the street. She cried during the search. The search of her son was so grossly insensitive and intrusive that he suffered psychological harm. Both Wainwrights sued for trespass to the person and invasion of privacy; Alan also sued for battery. All claims were rejected by the court of appeal except for the one of battery, which was not contested. The Home Office appealed to the House of Lords.
In a very conservative ruling, the Lords have found that the Wainwrights have no actionable right of privacy. They say that the issue of whether or not there is an actionable right of privacy "must wait for another day". They have decided to apply the law narrowly rather than to recognise new aspects, adding that reform of privacy "can be achieved only by legislation rather than the broad brush of common law principle". Unfortunately for the Wainwrights parliament has already passed the buck on this one, too, rejecting the reforming conclusions of Gerald Kaufman's select committee report on media intrusion.
Given parliament's refusal to acknowledge its responsibilities it is pitiful that the House of Lords has shied away from the challenge on privacy. The Wainwrights may hope for something better from an appeal to the European court of human rights. It is unlikely that there will be another chance to influence the evolution of this area of the law at such a timely moment. The Wainwright case is about ordinary people and their right to privacy. It is uncluttered by celebrities, kiss and tell confidentiality, considerations of image control or media manipulation. It is a case based on genuine social need.
The next major decision in this area will be the announcement of damages for the Douglases and OK! against Hello!. That is, of course, an award for breach of confidence, not privacy; how could anyone confuse the two? The moral of this story is, if you want to protect your private life make sure your image has commercial value.
· Martin Soames is a media litigation partner at DLA