(Breach of Confidence and secrecy – studying media law week 5, part II)
The law says that a person who has obtained information in confidence must not take unfair advantage of it and therefore someone who believes his/her confidence is to be breached can get an injunction preventing this. Such injunction will prevent all media from publishing it. The right to privacy is guaranteed by Article 8 of the Convention of Human Rights. (Ref.3)
There are two types of consent when obtaining photographs of the public including celebrities, explicit and implicit. Explicit consent is when we have our disclaimer forms signed by the participant (photographed) allowing having the picture taken and published, so it is in writing, in permanent form on the record. Implicit consent applies when the person we are photographing is smiling at us, showing with the body language that he/she is aware of being photographed and doesn’t mind it.
Section 12 of the Human Rights Act is intended to provide some protection against injunctions in matters involving freedom of expression but in absence of a cause of action for privacy, courts use breach of confidence actions to prevent ‘the unjustified publication of private information’. (Ref.3)
From the latest cases, pop star Lilly Allen, a secured a High Court injunction to prevent harassment by photographers.
See the details on Breach of Confidence and secrecy (part I)– studying media law week 5 post in here.
CATHERINE ZETA JONES CASE
“The key case here is long running saga of Catherine Zeta Jones. The issue is the use of the Human Rights Act to create a commercial law of privacy which can be sold. Catherine sold sold her Privacy rights to have pictures taken to Halo magazine. “The judgment came as celebrity magazine OK! triumphed in its battle with rival Hello! over snatched pictures of Michael Douglas and Catherine Zeta-Jones's wedding.” (Ref.8) An article titled “OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price” gives away the costly process of winning a privacy issue identifying that “celebrities have been given stronger powers to control the way they are seen by the public in a controversial ruling by the Law Lords.” (Ref.8)
The case has definitely set to become one of the iconic media law study cases that have set to “have implications for developments of British privacy law.” (Ref.8) “The Law Lords ruled that Hello! had breached OK!'s confidentiality by publishing covertly-taken photos which ruined its exclusive £1million deal with the couple. These have balanced individuals' right to privacy against the media's right to freedom of expression. The Law Lords ruled Hello!'s actions were unfair as the couple had the right to confidentiality - even if they had sold their story to someone else.” (Ref.8) “The saga began when OK! paid £1million for exclusive rights to photos from the couple's starstudded wedding in 2000. However, Hello! managed to obtain several low-quality photos taken with a hidden camera - and these hit the shelves before OK!'s official coverage. The magazine, in conjunction with the couple, promptly sued Hello! for damages. During a sixweek hearing, Miss Zeta- Jones said she felt "violated" by the "sleazy and unflattering" photographs. She singled out an image of Douglas feeding her wedding cake, saying: "I don't usually like my husband shoving a spoon down my throat to be photographed." The couple won, but the £2million of costs and damages they were awarded were quashed after Hello! successfully went to the Court of Appeal in May 2005. The case then went to the Lords. In the latest hearing, Richard Millett QC, representing OK!, told five Law Lords that it had been established the exclusive was an "extremely valuable" asset. He said the Douglases - who were no longer involved in the case - were more interested in preserving their confidentiality than making money. Lord Hoffmann said in his judgment that OK! had paid £1million and could therefore expect guests to respect its exclusive rights over the event. He said other Law Lords were troubled by the fact the images were not intended to be kept secret but to be published (...) “being a celebrity or publishing a celebrity magazine are lawful trades." (...) The judges decided that Hello!'s actions did not damage its rival financially - leaving the two publications to share legal costs estimated at £8million.” (Ref.8)
MAX MOSLEY CASE
“The Max Mosley case is highly significant. He was defamed, though the story was defensible as true - he did not deny his behaviour with prostitutes. But he claimed that the behaviour was his own private affair and that reporting on them was a denial of his section eight rights to normal family life. One point of controversy was this that Mosely had acted out sadistic sexual fantasies involving torture and incarceration. The NoW witness, said that these scenes were an explicit reference to Nazi concentration. “(Ref.2) Max won damages over the story, which the court held was not in the public interest to publish. (Ref.3) An article written by Chris Horrie for The Guardian in July 2008, titled ‘A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie.’
The battle between The News of the world and Mosley continued, as Chris Horrie says in his article ‘The News of the World has built its business by calculating that the additional revenues from really sensational invasions of privacy will outweigh the costs of doing these stories (...) on the day after the Mosley verdict, the paper took full-page advertisements in the trade press to boast about the positive commercial effects of the story and the ruling. (...)traditional dirty vicar or minor football star was just as great as invading the privacy of much
At one point, after the introduction into UK law of the Human Rights Act, the News of the World's business appeared to be threatened by the establishment in English law of a right to privacy. But, as things are turning out, the new law has not meant an end to intrusion into people's lives. It just means that the intrusion is more expensive to do. The glossy celeb magazines and weekday tabloids have got used to the practice of paying celebrities to waive their privacy rights, so that supposedly candid photos can be taken or published. ‘ (Ref.9)
‘When he arrived at the paper in January 2007, Myler said he wanted fewer, but better, kiss-and-tell stories. The legal cost of invading the privacy of the bigger fish, so there was no point in going for these smaller targets (...). A few years ago the video that proved the truth of the story would have had very little value, except as evidence in court. Now, in many ways, it is far more valuable than the printed version of the story in the paper. (...) And while the law has been getting tougher on privacy, judges have also been giving more protection against libel actions to investigative journalists genuinely trying to expose fraud or wrongdoing. (...) ‘(Ref.9)
On 6th October 2008 Press Gazette Journalism Today published an article titled Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media'. ‘Formula One chief Max Mosley has launched an audacious to bid re-write English privacy law and create what critics have called a “gagging order” against the press. ‘ (Ref.10) Mosley (won a high-profile privacy battle against the News of the World in July in the High Court) applied to the European Court of Human Rights in Strasbourg for ‘ a change in the law that would make it compulsory for newspapers to inform people before they publish private information about them.(...) Mosley is arguing that English law is in breach of Article 8 of the Human Rights Act, the right to privacy, by not requiring editors to inform people that their private lives are being written about. (...) A statement from Mosley’s legal team said that his right to privacy had been compromised as soon as the paper published its salacious claims that he enjoyed a Nazi-themed sex orgy in a west London flat. Mr Justice Eady rejected the paper’s claim that the incident had a Nazi theme and ordered that it pay an unprecedented £60,000 in damages.
The statement said: “Although this is the highest sum ever achieved in a claim for an invasion of privacy… The only effective remedy would have been to prevent the publication in the first place by means of an injunction.
“But because he did not know about the article before hand, the opportunity of an injunction was not open to him.”
Mosley’s team argues that the law change would not affect anyone’s freedom of expression, as any claimant would have to ask the courts for an injunction which, they say, “will always be refused if there is a strong and legitimate interest in publication”. (...) “The procedure that enables the courts to grant an injunction is something where courts make a snap decision based on the evidence in front of them and primarily is aimed at preserving the status quo while the parties have a longer period in which to put more detailed cases in front of the court.
(...) Media solicitor Brid Jordan, from Reynolds Porter Chamberlain, said: "Any attempt to re-cast the law based on the particular facts of the Mosley case would be a worrying development for media law and Editors".
"There is a real danger that it would tip the scales against the press and would have a chilling effect on investigative journalism in this jurisdiction." ‘(Ref.10)
But privacy law is string – so the rule is if there’s a picture of a person in your newspaper/ TV station website, make sure you know who they are, what they are doing and whether or not they have consented to having their picture taken and published. (Ref.2)
“Section 12 of the Human Rights Act also saus that when a court is considering imposing an injunction in a matter affecting freedom of expression, and where journalistic material is involved, it must have particular regard to the public interest in publication.” (Ref.3)
PRINCESS CAROLINE OF MONACO
“Princess Caroline case – the creation of defector privacy law. Can now only justified the publication of pictures of people if they are engaged in a clear public duty – new dangers for taking “wallpaper” type pictures of identifiable people without permission.” (Ref.2) In July 2004 it has been published on the legal commentary site that ‘the European Court of Human Rights handed down a judgment in the case of von Hannover v Germany which may radically alter the extent to which the paparazzi and tabloid press are permitted access to the private lives of celebrities.’(Ref.11) Princess Caroline of Monaco was the applicant ‘who took her case for protection of her privacy to the ECHR after several mainly unsuccessful applications in the German courts over a period of ten years. (...) Princess Caroline took action over a series of photographs taken in France and published in Germany of her everyday life (...). Under German law, Princess Caroline is deemed to be a "public figure par excellence", and as such the public is deemed to have a legitimate interest in knowing how she generally behaves in public, even when not performing any kind of official function.
The German government claimed that the level of protection afforded to such public figures under German law was compatible with Article 8 of the European Convention on Human Rights and struck a fair balance between Article 10 (Freedom of Expression) and Article 8 (Respect for Private and Family Life). The ECHR found unanimously, however, that there had been an infringement of Article 8 rights, and that German law did not provide adequate protection for a person's right to private and family life.
The majority of the judges said that the question of the correct balance between Article 8 and Article 10 centres on "the contribution that the published photos and articles make to a debate of general interest." In the case of Princess Caroline, the photographs made no such contribution as she exercised no official function and the photographs related solely to her private life.
The ECHR held that the public does not have a legitimate interest in knowing where the applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as "secluded". Even if such an interest existed alongside the commercial interest of the magazines in publishing the pictures, "these should yield to the applicant's right to the effective protection of her private life." The German criteria were not sufficient to ensure the effective protection of Princess Caroline's private life and she should have a "legitimate expectation" of the protection of her private life. (...) The most obvious impact of this judgment is on press photography, since a clear "public interest" is now required to justify a photograph of a person who neither holds public office nor is engaged in an "official" activity. The ubiquitous pictures of celebrities in public places are no longer justifiable, and prominent individuals therefore have at least some privacy rights even in public places. The contextual test in the PCC Code of locations in which an individual has "a reasonable expectation to privacy" is now obsolete under this new ruling.
This means that failure by the courts and the PCC to protect individuals against publication of pictures, and by extension stories, merely for "entertainment purposes" where there is no public interest, will be a breach of the Article 8 rights of an individual. This case is a strong warning to the UK courts that they have a positive obligation to protect the privacy rights of individuals, thereby inevitably curtailing to some degree the freedom of the press, and in particular of press photography.’ (Ref.11)
Taking all the above examples into the consideration, it is essential to remember that the accurate consent is everything in photography. If a person photographed is smiling or posing for the camera then there is no danger of saying it is an invasion of privacy. For radio there could be a danger of invasion of privacy, but the issue of identification is of course not so serious. (Ref.2)
NAOMI AND DAILY MIRROR DRUG REHAB CASE
“The model Naomi Campbell received damages when a paper published pictures of her in a public street, emerging from a Narcotics Anonymous therapy session.” (Ref.3)
From the case history on the BBC website we know that in February 2001: Mirror publishes photo of Naomi Campbell leaving Narcotics Anonymous in London, then in March 2002: Campbell successfully claims breach of privacy. High Court orders £3,500 damages from Mirror. Following that in October 2002: Appeal Court overturns High Court ruling and eventually in May 2004: Law Lords overturn Appeal Court decision, reinstating High Court ruling and damages. (Ref.13)
In October 2002, BBC news website published an article saying that ‘The Daily Mirror has won an appeal against a High Court ruling that it breached the confidentiality of supermodel Naomi Campbell. Three Appeal Court judges said a story about the model's drug addiction was justified in the public interest. The newspaper was contesting a High Court decision that it must pay £3,500 damages to Miss Campbell and her legal costs. (...) Mr Morgan said the article on Miss Campbell had been "sympathetic" and said the judgment was highly symbolic.
He added: "It is a firm message to celebrities out there who want to use the law as an extension of their PR firm that we newspapers will defend ourselves very vigorously." ‘ (Ref.13)
However in May 2004 eventually, the BBC news website published another article that Naomi won her breach of confidentiality claim against Daily Mirror, ‘ Miss Campbell had objected to the publication of pictures of her leaving drug addiction treatment in early 2001. (...) ‘ (Ref.12) ‘The case centred on the publication in February 2001 of a report about her drug addiction, including a photograph of her leaving a Narcotics Anonymous meeting in King's Road, Chelsea. ‘(Ref.12)
‘Lord Hope, who voted in favour of Miss Campbell, said on Thursday: "Despite the weight that must be given to the right to freedom of expression that the press needs if it is to play its role effectively, I would hold that there was here an infringement of Miss Campbell's right to privacy that cannot be justified."
The Law Lords reinstated the High Court award of £3,500, based on breach of confidentiality and breach of duty under the 1998 Data Protection Act.
The judgment leaves the Daily Mirror facing a total legal costs bill of more than £1m.
Lord Hoffmann said: "From a journalistic point of view, photographs are an essential part of the story. (...)' (Ref.12)
References:
Ref.1) Media Law Lecture ba Journalism, year 3, week 5
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 5 http://journalism.winchester.ac.uk/?page=102
Ref.3) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.4) Official Secret Act 1989: http://www.legislation.gov.uk/ukpga/1989/6/contents
Ref.5) The Zircon case: http://www.fas.org/irp/eprint/alpha/zircon.htm
Ref.6) Bill Goodwin case: January 1994, freedom of information awards: http://www.cfoi.org.uk/awards93pr.html#goodwin
Ref.7) Graham Pink case: “NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” article: http://www.independent.co.uk/news/uk/nhs-whistleblower-wins-pounds-11000-damages-health-authority-pulls-out-of-tribunal-brought-by-former-nurse-1491719.html
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Ref.8) ‘OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price’ article from Mail Online, by STEVE DOUGHTY and RICHARD SIMPSON, 03 May 2007 http://www.dailymail.co.uk/tvshowbiz/article-452164/OK-magazine-wins-appeal-Zeta-Jones-wedding-photos--price.html
Ref.9) A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie, The Guardian, Monday 28 July 2008 http://www.guardian.co.uk/media/2008/jul/28/mosley.newsoftheworld
Ref.10) Press Gazette Journalism today, article: “Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media” http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=42168&c=1
Ref.11) Princess Caroline of Monaco (06/04) http://www.legalday.co.uk/lexnex/simkins04/simkins200704.htm
Ref.12) Naomi Campbell wins privacy case article on BBC news, May 2004 http://news.bbc.co.uk/1/hi/uk/3689049.stm
Ref.13)Mirror wins Campbell appeal article on the bbc news website: http://news.bbc.co.uk/1/hi/uk/2327385.stm
--------------------------------------------------Refferences for part 2: Ref (1-3) & (8-13)---
