Do celebrities have rights to privacy should their private lives be open to press scrutiny? please analyse hello v douglas case, campbell v mgn ltd, a v b plc, campbell v frisbee. and in these case please also mention cases that were referred to in the judgments of these cases. please also write about the data protection and its importance in answering the above question
In Campbell v MGN, Campbell appealed against a decision which dismissed her claim against MGN Ltd for damages. MGN had published stories and photographs of Campbell highlighting her attendance at Narcotics Anonymous; Campbell had previously declared that she did not take drugs. She consequently claimed damages for breach of confidence, and compensation under the Data Protection Act 1998, alleging ‘wrongful publication of private information.’ The judge awarded damages but this was reversed at the Court of Appeal, on the basis that ‘…provided that publication of particular confidential information was justifiable in the public interest, the journalist had to be given reasonable latitude as to the manner in which the information was conveyed.’ On further appeal it was concluded that, due to Campbell’s previous denials concerning her drug taking, she was exempt from seeking protection against information that she was taking drugs. Campbell’s main line of argument was that the photographs of her leaving Narcotics Anonymous were of a private nature, and therefore her right to privacy under the Human Rights Act 1998 had been contravened, and this right outweighed the right of the publisher’s freedom of expression under the same Act. Campbell’s appeal was upheld. The Court recognised that publishing information regarding Campbell’s drug taking was necessary to ‘set the record straight’ but the accompanying photographs were an intrusion into her private life, and her right under Article 8 of the HRA 1998 outweighed MGN’s freedom of expression under Article 10 .
The court emphasised the fine balance that had to be drawn between the right to privacy and the right to freedom of expression. Lord Nicholls, dissenting, stressed that the publication of the information was a relatively minor intrusion into Campbell’s private life, whereas non-publication of the information would have ‘…robbed a legitimate and sympathetic newspaper story of attendant detail which added colour and conviction.’ The key issue was the balance that had to be drawn between the right to privacy, which was at the very heart of an action for breach of confidence, and the right of the media to provide information to the public. Essentially, the freedom of expression afforded to the media needed to be weighed against respect for an individual’s private life. The question arose as to whether publication of the material in this case ‘pursued a legitimate aim’ and if so, whether the benefits to be achieved by its publication outweighed the harm that would be caused by an invasion of privacy.
The HRA 1998 has had significant impact upon cases such as Campbell v MGN by virtue of the provisions of Article 8, concerning respect for private and family life, and Article 10, concerning freedom of expression. Neither article is more important than the other and consequently, as in this case, the courts have had to pay particular attention to the different aspects of the case where either of these rights may be argued. The case of Reynolds v Times Newspapers Ltd was cited in this particular case as an example of how the common law had evolved to harmonise with the afore mentioned articles. Lord Woolf CJ stated in the case of A v B Plc that the courts have been able to achieve this harmonisation by ‘…absorbing the rights protected by articles 8 and 10 into this course of action [for breach of confidence].’
This case continued to use breach of confidence as a mechanism for protecting privacy. Lord Hoffman stated that ‘The new approach takes a different view of the underlying value which the law protects. Instead of the cause of action being based upon the duty of good faith applicable to confidential personal information and trade secrets alike, it focuses upon the protection of human autonomy and dignity–the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people.’
In the case of Douglas v Hello!, the Douglases and OK Magazine won their case against the publishers of Hello! for breach of confidence. Hello! had published unauthorised photographs of the wedding of Michael Douglas and Catherine Zeta Jones, in the full knowledge that OK had an exclusive on the story. In an initial attempt to have an injunction put in place to prevent the publication of the photographs by Hello!, the appellants submitted five principle arguments: breach of confidence, malicious falsehood, interference with contractual relations, breach of copyright and breach of privacy. The court rejected the first four. With regards to breach of privacy, the court held that an injunction was not possible given the fact that the Douglases had already made an agreement with OK to publish certain photographs – inferring that they were not entirely of a private nature. They would only be able to obtain damages. Lindsay, J refused to establish a new ‘law of privacy’ in this case, asserting that the appellants were adequately covered by the law of confidence. He did however claim that ‘…a glance at a crystal ball of, so to speak, only a low wattage, suggests that it Parliament does not act soon the less satisfactory course, of the courts creating the law bit by bit a the expense of the litigants, and with the inevitable delays and uncertainly, will be thrust upon the judiciary’ , inferring that the law did not provide an adequate solution to celebrities or other individuals wishing to have some protection over their private lives.
The concept of privacy in this case accorded recognition to the fact that the law had to protect ‘not only those people whose trust had been abused but those who simply found themselves subjected to an unwanted intrusion into their private lives.’ The law did not now need to establish an ‘artificial relationship of confidentiality between intruder and victim: it could recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.’ Sedley, LJ therefore proposed an extended breach of confidence principle that did not require there to be an established confidential relationship ; for in this case, while the Douglases had made conscious efforts to ensure all attendees were bound by a breach of confidence, there was still the chance that an intruder could manage to take photographs of the wedding. In this case, breach of confidence was utilised as a mechanism for protecting privacy, a procedure echoed in the case of Campbell v MGN Ltd. The balance to be found between Articles 8 and 10 of the European Convention on Human Rights was not a cause for concern in this case however, as it had already been established beyond doubt that a breach of confidence had occurred, and that there did not need to be an established confidential relationship as in Campbell v Frisbee .
In the case of A v B, the court was concerned with whether or not to grant an injunction to restrain the publication of private information. This information concerned the sexual relations that A, a married professional footballer, had had with two women – C and D. Lord Woolf stated in this case that any interference with the press had to be justified; under s.12 (4) of the Human Rights Act, the court had to have regard to whether or not it would be in the ‘public interest’ for material to be published. Lord Woolf stressed in this case however that, even if there were no obvious special public interest, this did not mean that the court would be justified in interfering with the freedom of the press; he opined that, ‘…where an individual was a public figure he was entitled to have his privacy respected in appropriate circumstances. He should recognise however that he must expect and accept that his actions would be more closely scrutinised by the media.’
Lord Woolf appears to be implying that celebrities, by virtue of their prominent status within society, should appreciate that their lifestyles and activities will be more carefully monitored by the press than ordinary members of the public. The court claimed that ‘…even trivial facts relating to a public figure could be of great interest to readers and other observers of the media… In many of these situations it could be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so legitimate interest in being told the information. If this is the situation then it can appropriately be taken into account by a court when deciding on which side of a line a case falls. The courts must not ignore the fact that if newspapers do not publish information in which the public are interested, there would be fewer newspapers published which will not be in the public interest’ . Beloff opines that statements such as these give the press a positive incentive to pry into the lives of public persons. Beloff criticises Lord Woolf’s assertion that ‘…there will be a benefit to young people in learning about the falls from grace of their idols.’ The appellant in this case was not a well known footballer, and it is difficult to see why the public had a real need to know about his sexual relations.
It is apparent that the courts are reluctant to apply too much restraint towards the activities of the press; the courts do not serve the purpose of acting as ‘arbiters of taste’ in assessing the balance of rights.
Data Protection Act 1998
In Douglas v Hello! the Douglases were awarded damages under the Data Protection Act 1998 due to the fact that the photographs were deemed to be ‘personal data.’ The photographs were said to have been unlawfully processed by Hello! thereby contravening the requirements of the DPA 1998. Lindsay, J stated, ‘…When a data controller is responsible for the publication of hard copies that reproduce data that has previously been processed by means of equipment operating automatically, the publication forms part of the process and falls within the scope of the Act.’ Hello! argued that their publication fell within the ‘wide journalism exception’ under s.32 of the DPA 1998, a mechanism that was successfully used against Naomi Campbell in the case of Campbell v MGN Ltd at the Court of Appeal. In this case however, Lindsay, J ruled that unlike the Campbell case, there was ‘…no credible evidence that Hello! had the necessary belief that the publication was in the public interest, particularly given that the photographs were obtained by trespassing paparazzo and Hello! knew OK was about to publish a wedding exclusive.’ He continued to assert, ‘That the public would be interested is not to be confused with their being a public interest.’
In the case of Peck v UK, Peck had been filmed walking along a public road, apparently suicidal. The court held there was no duty of confidence evident, as he was walking along a public street. According to Brimsted, although distribution of the footage might be for the purposes of a ‘legitimate interest’ in that it may ‘promote the effectiveness of CCTV as a crime deterrent,’ the fact that Peck was broadcast in such a state was prejudicial to his right to respect for his private life. She argues that achieving the legitimate interest could easily be achieved without showing the film of Peck and asserts that should the case be heard now, he would be entitled to compensation for any damage he suffered ‘by reason of any contravention’ of the Act by the data controller ; i.e. those responsible for broadcasting the images. It seems that, essentially, the key role of the DPA 1998 in providing a remedy for breaches of privacy arises where no duty of confidence can be established. Whether or not the courts will develop a new law of privacy such as those of the United States and some European countries remains to be seen. As Crone asserts, ‘…Only time will tell whether the embryonic right to privacy develops fully, or is rendered subservient to other, more politically charged, legislation.’
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