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  1. Law
January 4, 2010

Caught in the Flashbulbs

By Spear's

How can you live the life you like without the scrutiny of the baying media? Alexander Carter-Silk and Claire Cartwright-Hignett outline the issues and offer solutions

PRIVACY IS A subject which evokes significant emotional reaction, both positive and negative. Privacy is historically rooted in sociological concerns, the comprehension of which is crucial to one’s understanding of the law of the modern day.

It was no coincidence that The European Convention of Human Rights was ratified in 1953 at a time when the memories of the Second World War were fresh in people’s minds. The excesses of governments and dictators under which individuals and countries had suffered inspired the Council of Europe to develop a series of fundamental human rights which were incorporated into the ECHR. The ECHR was intended to protect against the use of governmental authority to the detriment of the individual and to promote democracy and social development in the post-war era.

The concept of ‘privacy’ extends back far further than living memory. Aristotle made a distinction between the public sphere of political activity and the private sphere associated with family and domestic life. Despite its long history, there is no single definition of privacy. The concept of privacy is nebulous which causes the courts quite some difficulty when deciding what should be protected by the right to privacy.

The right to privacy is now embodied in Article 8 of ECHR which has been effective in English law since 2 October 2000 pursuant to the Human Rights Act 1998 (HRA). Article 8 provides that ‘everyone has the right to respect for his private and family life, his home and his correspondence.’

Some have described the right to privacy as the right to be left alone. Others have said that it prescribes a right to live without inhibition, without the fear of being observed. It might also be described as the ability to live discreetly; to choose your acquaintances, to choose when, where and with whom you meet and what you discuss and, above all, why.

While the concept of privacy has been recognised for centuries and was even protected by the Roman law concept of injuria, modern technology means that intrusions into privacy can now be immediate, intense and enduring. The protection of privacy is therefore more crucial than ever.

The right to privacy applies just as much to those in the public eye as to those of us who have chosen to remain behind closed doors. While it is true that celebrities who have courted media attention must expect their actions to be scrutinised more closely by the media, we cannot choose not to comply with the principles of privacy for commercial convenience or because there is a curiosity about the private lives of others.
WE SHOULD NOT for one moment follow the twisted logic that suggests that an individual will not object to telling the world what he has done if he has nothing to hide. Private is private. It requires no explanation and countenances no interference unless that interference can be justified for the greater good.

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Such justification usually emanates from the right to freedom of expression, a right as equally fundamental as the right to privacy. When fundamental rights conflict with one another, one must assess where the balance of liberties lies. Interference with a fundamental right should be restricted to the minimum extent necessary to pursue, or proportionate to, the legitimate aim conferred by the opposing right.

Just as the interference with the private life of a citizen has been used as a tool of absolute authority, so has control of the free press. History demonstrates that dictators and, unscrupulous politicians and administrators find the freedom to express opinion to be an unwelcome limitation on their ability to control and direct their policies. There are a prolific number of current and historic examples of the impact of control over the media and propaganda around the globe.

The fundamental right of freedom of expression which is enjoyed by all is embodied in Article 10 of the ECHR. Article 10 is to freedom of expression what Article 8 is to the right of privacy. When the right of privacy is invoked, the right to freedom of expression steps in. One might say that the tension between these two rights holds the two extremes in check.

Article 10 of the ECHR states that:
(1) Everyone has the right to freedom of expression…
(2) The exercise of these freedoms, since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others.

The press assumes the role of disseminating a wide range of information to the public. In order that a free press can perform its function, it must be permitted to publish information on the conduct of public figures, their beliefs and what they have said. Privacy should not be invoked in a manner which restricts this key element of a democracy. The freedom to debate, disagree, test and probe provides a forum for social as well as political evolution.

A celebrity’s life is one of contrasts. Celebrities elicit and attract attention from the media to enhance their commercial value. Their fame cannot exist without the press and their notoriety enables them to endorse products and charge appearance fees. The press lobby argues that this value is created by the journalists. In other words, celebrities can be said to be the product of the mass media.
CONVERSELY, CELEBRITIES SAY that without them, the press would not sell newspapers and magazines. Celebrities have a ‘love hate’ relationship with the press and the balance of power is constantly shifting. It is a see-saw relationship with some magazines paying for interviews on the one side, and on the other side managers and PR agencies measuring their success in column inches.

Alongside this dance of vanities, celebrities concurrently have a ‘private life’ from which the public are excluded. History shows that celebrities who live their entire lives in front of a camera and retain no distinct private life frequently suffer psychological problems, some of which tragically end in suicide. The courts have recognised that even celebrities who court the attention of the press must be afforded a private life.

Celebrity gossip sells magazines. But what is the personal cost to a celebrity of appearing on the front page? Can a celebrity use private moments for commercial gain and then exclude the press from other similarly private moments? If a celebrity sets themselves up as a role model, is it legitimate for the press to intrude into the private life of that celebrity to support or destroy her public image? Does the investigation itself go beyond what is accepted by society to be a legitimate intrusion into a personal life?

The boundary between private information which is legitimately available to the press and media (without payment) and that which is truly private has been tested and probed by the courts during the past decade. The boundary remains a tense and blurred line. Where Article 8 rights collide with Article 10 rights, the courts have to perform a balancing act. The courts will determine which right should prevail, but will ensure that the subservient right is only compromised to the minimum extent necessary to give effect to the countervailing right.

The balancing line between Article 8 and Article 10 rights carves out aspects of a celebrity’s life which are considered to be inherently private. The counter pose to the ‘reasonable expectation of privacy’ is the ‘public interest’. To ensure that any compromise of the right to privacy is kept to a minimum, ‘public interest’ must be narrowly and clearly defined.

The ‘public interest’ test embodies the notion that an interference with Article 8 rights can only be justified to the extent that it benefits the wider society or achieves a greater good. It is crucial that a legitimate public interest remains distinct from facts in which the public are interested. The former achieves a societal benefit, while the latter merely panders to gossip mongers and the inquisitive.
THE MERE FACT that an activity takes places in a public place does not prevent it from being ‘private’. The European Court in the case of Von Hannover v. Germany made it clear that the protection afforded by Article 8 extends to ordinary activities and social interaction in public places. The Court ruled that Princess Caroline’s Article 8 rights were violated by the publication of photographs which showed her engaged in ordinary activities in a public place and emphasised that there is ‘a zone of interaction of a person with others, even in a public context’.

The European Court considered that the publication of the photographs in question merely pandered to the curiosity of a certain readership and could not be considered to contribute to a debate of general interest. The European Court also considered it relevant that photographs appearing in tabloid newspapers tend to be taken in a ‘climate of continual harassments which induces in the person concerned a very strong sense of intrusion into their private life’.

The English courts, however, have not adopted such an expansive view of what constitutes a ‘private’ act. The courts in the case brought by Naomi Campbell against Mirror Group Newspapers had to consider whether the publication of photographs taken of Ms Campbell as she left a drugs rehabilitation establishment where she was receiving treatment infringed her right to privacy.

The court assessed the information in question and asked whether Ms Campbell had a legitimate expectation of privacy in respect of it.  This test has become the benchmark for privacy within the UK.

This lack of clarity means that the extent to which well-known individuals should expect to tolerate the fear of being observed is unclear. The time may have come for government to adopt measures to secure the private lives of celebrities so as to ensure that their Article 8 rights protect privacy in reality as well as in name.

Extracted from Privacy and Celebrities: A contradiction in terms, to be published in 2010

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