Steve Foster tracks the shift in attitudes of judges towards celebrity scandals


How can the law achieve a fair balance between protecting individual privacy from press intrusion and ensuring that the public is fully informed?



The public's appetite for receiving information regarding an individual's private life appears insatiable, and, of course, the press are more than willing to feed them this material, both as part of their public duty to inform and to satisfy commercial needs. Yet, the law must also protect a person's basic right to private and family life, and must draw the line somewhere.



One possible way out of this dilemma is to strip the claimant of his privacy rights when he or she is a public figure, used to public exposure. The individual is therefore 'fair game' for the press and cannot complain if the public is fed information about their private lives. This solution is attractive if the claimant has previously courted press attention and is now complaining about bad publicity.



Another possibility is to accept that this figure has a right to a private life, but then to allow exposure on the grounds that publication of such details is in the public interest. In practice, the balance between privacy and free speech has been more complex than the simple acceptance of either of these possibilities, but some principles are emerging.



Private matters

First, the courts have refused to accept that public figures forgo their right to privacy simply because of their status. In Campbell v MGN Ltd [2004] 2 AC 457, the House of Lords accepted that Naomi Campbell had a legitimate expectation of privacy with respect to her treatment for drugs and protected her from disclosure of unconscionable details of such. This stance follows the European Court of Human Rights' judgment in Von Hannover v Germany [2005] 40 EHRR 1, where the former Princess Caroline of Monaco succeeded in her claim that constant harassment and photographing by the paparazzi was in breach of her right to private and family life.



Secondly, this expectation of privacy is not lost simply because the claimant has participated in immoral behaviour. For example, in the recent case of CC v AB [2007] EMLR 11, it was held that there was no general rule that an adulterer could never restrain the publication of matters relating to an adulterous relationship, such a relationship attracting a reasonable expectation of privacy.



Thirdly, although the courts are prepared to accept that there may, in some cases, be a public interest in divulging details of a public figure's private life, it is beginning to draw a clear distinction between what is in the public interest and what the public is interested in.



Legitimate interest

Thus, in Von Hannover, the European court held that, while the general public might have a right to information, including, in special circumstances, information about the private lives of public figures, they did not have a legitimate interest in knowing the applicant's whereabouts or how she behaved generally in her private life, even if she appeared in places that could not always be described as secluded and were well-known to the public. The fact that such information sells newspapers and attracts the attention of the public is not sufficient to constitute a real and genuine public interest.



The above distinction presupposes that there is certain material which the public is, or rather should be, interested in and which therefore allows us to invade an individual's privacy. So what is that material? Certainly, if the information relates to a matter of political or constitutional importance, then it is likely to be regarded as of public interest.



For example, if a politician's private activities impinge on the performance of his public functions, then the public will have a prima facie right to know, and it should only be deprived of that information if the claimant's privacy claim outweighs freedom of expression and the public's right to be informed. This would apply to other officials whose functions affect the public, and in the recent case of Browne v Associated Newspapers [2007] 3 WLR 289, it was accepted that there was a public interest in publishing details of the affair between the chief executive of BP and a young man in so far as they related to claims that he had misused his position and an alleged misuse of the company's facilities.



The principle can also extend to the disclosure of private details of celebrities, and in Campbell it was accepted that there was a public interest in disclosing the fact that the claimant took drugs; partly because she was a role model, but mostly because she had previously denied such and the article thus set the record straight.



However, the courts are beginning to place severe limitations on the public interest defence. As we have seen, they have rejected the idea that the public has a right to that information simply because it is curious to know, even to the extent that they are willing to pay for such information. Thus in CC, the court held that there was no public interest in allowing a person to go to the media and expose the claimant as an adulterer for no better reason than spite, money-making or to spread 'tittle tattle'. Similarly in Browne, it was accepted that the claimant had a legitimate expectation of privacy with respect to the details of the affair itself, and that there was no overriding justifiable public interest in publication of those details.



Changing attitudes

Those cases contrast with previous case law, where it was accepted that the public had a real and thus genuine interest in such details, and that the press rather than the courts should be the final arbiters of taste and press tactics (A v B plc and another [2001] 1 WLR 2341). They would also appear to question the broad approach taken in Theakston v MGN Ltd, [2002] EMLR 22, where the court refused to grant an order with respect to an article describing how a well-known television presenter had visited a brothel. In that case, neither the prostitute's personal knowledge of the events, nor the nature of events in a brothel, was felt to have the inherent quality of confidentiality. Further, the court accepted that there was a public interest in the story because the claimant was a well-known celebrity who served as a role model for young people and who had regularly used the newspapers to publicise his activities.



Even where there may be a genuine public interest in publication of private information, that will not justify extreme and unconscionable disclosures. Thus in Campbell, not even the claimant's high public profile, her thirst for self-publicity and her previous deception of the public, justified disclosure of intimate details of her treatment for drug abuse.



Equally, in HRH Prince of Wales v Associated Newspapers [2007] 3 WLR 222, the Court of Appeal granted injunctions to prohibit the publication of private diaries which included the Prince's thoughts on matters of public and constitutional interest. Nevertheless, the court felt that the Prince had a legitimate expectation of privacy in what were undoubtedly private and confidential documents, especially as the diaries had been given to the press in breach of a clear duty of confidence.



The courts have noted recently that there was a significant shift taking place between freedom of expression for the media and the legitimate expectation of citizens to have their private lives protected (McKennitt v Ash [2007] 3 WLR 194). That shift has involved the enhancement of privacy rights of public figures, and the whittling down of freedom of the press and the public's right to know, and it may be necessary for the press to refer a case to the European court in Strasbourg to test the compatibility of this approach with principles of free speech and the public right to know.



Steve Foster is principal lecturer in law at Coventry University