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The Law Of Privacy In England And Wales Part 3

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28 May 2008

In last week’s edition we examined Naomi Campbell’s dispute with the Mirror newspaper and followed the conflicting decisions through to the House of Lords. Their Lordships’ judgment was heralded by many as marking a turning point in the law – with the balance shifting to favour celebrities wanting a private life rather than the media who wrote about them.  Whilst this was happening in London, in Strasbourg the European Court of Human Rights were about to make their position absolutely clear, in a decision we are looking at this week.

Von Hannover v Germany

The applicant was Princess Caroline of Monaco.  She had, on several occasions, unsuccessfully applied to the German courts for injunctions to prevent the further publication of photographs of her which had appeared in German magazines.  Her claim was that such photographs infringed her right to protection for her private life and her right to control the use of her image.

In December 1999 the German Federal Constitutional Court had allowed her appeal regarding photographs which featured her children, but considered that as a figure of contemporary society “par excellence” she had to tolerate the publication of photographs of her in a public place, even if they showed her going about her daily life (as opposed to being engaged in official duties).  Reference was made to the freedom of the press and to the public’s legitimate interest in knowing how such a person behaved in public.  In public places no right of privacy could be enjoyed unless the subject of any intrusion had retreated to a “secluded place” where it was objectively clear they wanted to be alone.  Accordingly, photographs of the applicant with her partner in a restaurant courtyard were found to be private but none of the others complained of.

The photographs which were the subject of the proceedings before the Strasbourg Court showed the applicant in a variety of situations going about her daily business, including:

    * Shopping;

    * Riding a bicycle;

    * Skiing;

    * Visiting a horse-show;

    * Leaving her house;

    * Playing tennis; and

    * At the Monte Carlo Beach Club (wrapped in a beach towel and falling over).

ECHR Judgement

The applicant stated that she had spent more than 10 years in unsuccessful litigation in the German courts trying to establish her right to the protection of her private life.  She alleged she was constantly hounded by the paparazzi who followed her every move “be it crossing the road, fetching her children from school, doing her shopping, out walking, practising sport or going on holiday.”   

Her submission was that the protection afforded by German law was minimal due to the notion of privacy only being accorded to public figures when they had retreated to a “secluded place.”  This meant that the onus was on the applicant to prove she had been in a secluded place at the time any photographs were taken.

The European Court reiterated that the concept of private life extends to aspects relating to personal identity, such as a person’s name, or a person’s picture.  Furthermore, private life “includes a person’s physical and psychological integrity.”  The Court found there is a zone of interaction with others, even in a public context, which may fall within the scope of “private life.”  The Court did not accept the German court’s view that, as the photos were taken in public, they did not engage Article 8, and felt that there was no doubt “that the publication by various German magazines of photos of the applicant in her daily life either on her own or with other people falls within the scope of her private life.”

It is important to note that the pictures of the Princess and her children and the one of her in a restaurant courtyard were no longer in issue.  The Court was only concerned with the less sensitive photos showing the Princess going about her daily business and not engaged in anything which would be recognised under English law as a “private” situation.  In fact, the Court noted that the photos in question showed the applicant in scenes simply going about her daily life, and many were accompanied by anodyne titles such as “Out and about with Princess Caroline in Paris.” The Court also noted that while the applicant may represent the ruling family of Monaco at certain events, she exercises no function within or on behalf of the State or any of its institutions.  A “fundamental distinction” was needed between reporting facts (even controversial ones) capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and “reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions.”  People have a right to privacy, even if what they do for a living means they are known to the public.  The Court confirmed that this protection extends beyond the private family circle and also includes “a social dimension.”

The Strasbourg Court made it clear that “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.”  In Von Hannover the Court concluded they made no contribution whatsoever.  The Court was uncomfortable with the idea that a contemporary figure “par excellence,” who carried out no official function whatsoever (as opposed to politicians), could not enjoy a private life unless she was in a “secluded place.”

After Von Hannover

Following Von Hannover, there have been significant developments in England in this area with a House of Lords decision in Douglas v Hello!; four relevant Court of Appeal decisions (Browne v Associated Newspapers Limited, McKennitt v Ash, HRH The Prince of Wales v Associated Newspapers Limited and Murray v Big Pictures (UK) Limited) and interesting trial level decisions such as CC v AB and X&Y v Persons Unknown.

Douglas v Hello! Limited (No 3) (House of Lords)

This case involved the unauthorised publication of photographs secretly taken at the New York wedding of actors Michael Douglas and Catherine Zeta Jones.  The couple had signed a contract with OK magazine granting it exclusive rights to publish official photographs of their wedding held before several hundred guests at the Plaza Hotel in New York.  A freelance photographer pretending to be a guest managed to evade security and secretly took photographs which he then sold to rival celebrity magazine Hello.  OK obtained an injunction to prevent the publication of the photographs by Hello, but when that was subsequently discharged OK rushed forward with its publication of the official photographs, followed closely by Hello’s publication of a “spoiler” issue with the unauthorised photographs.

At trial, Mr. Justice Lindsay upheld the couple’s claims for breach of confidence against Hello magazine and awarded them modest compensation of approximately £8,000.  He also upheld OK magazine’s breach of confidence claim against Hello.  The Court of Appeal upheld the claims by the Douglases, but reversed the ruling in relation to OK’s claim on the ground that the obligation of confidence applied only to the photographs it was “authorised” to publish, not the “unauthorised” photos published by Hello.

Essentially the Court of Appeal decided that Douglas and Zeta Jones had a legally recognisable interest in determining how images from their wedding would be presented to the public at large.  The Court discussed this as a type of privacy interest even though there were several hundred guests at the wedding and the couple had contracted with OK to publish photographs from the wedding.  But the Court rejected OK’s claim that Hello had violated its rights  under the contract.

OK appealed the decision to the House of Lords.  In a throwback to Campbell, the Lords were split on the decision 3:2, though by this majority they ruled in favour of OK and restored Lindsay J’s award for breach of confidence.

The majority of the Lords focused on OK’s commercial interest rather than strict legal principles of breach of confidence or privacy.  Lord Hoffman, supported by Baroness Hale and Lord Brown, reasoned that OK had paid £1 million for the photographs and the benefit of an obligation of confidence that covered all those at the wedding and “any” photographs of the wedding.  OK could not claim to have had a right to privacy over the wedding as their Article 8 rights were not engaged and they could not make a claim piggy-backing on the Douglases’ Article 8 rights.  But they did have a right to protect commercially valuable information.

Lord Hoffman also stated that it made no difference to the case that the images were to be published to the world at large.  He found that information could be of a commercial value, even if it is shortly to be published.  A related issue was the effect of the subsequent publication of photographs by Hello (just a few hours after OK who had brought their publication forward to hit the news stands first).  Was it the case that once any “information” contained in the photographs was fully in the public domain there remained nothing to protect?  Lord Hoffman felt that each separate picture was to be treated as a separate piece of information which OK would have had the exclusive right to publish; the photos published by Hello “fell within a generic class of commercially confidential information which OK were entitled to protect.”

Lord Nicholls’ dissent appeared to be based on a more specific and focused approach, looking at the similarities of the authorised and unauthorised photographs and debating the extent to which publication of the authorised photographs by OK precluded a claim in relation to Hello’s subsequent publication of the unauthorised photographs.  He noted the developing law in this area covers two distinct causes of action protecting two different interests: privacy and secret (confidential) information.  He thought OK’s interest in this case was wholly commercial; no question of personal privacy was involved with its claim.  Therefore its claim had to be based on the right to confidentiality for a commercial secret, but after publication of the authorised photographs he could see no secret information contained in the differences between the authorised and unauthorised photographs.

Although Lord Walker’s dissent included these points (the information in both the authorised and unauthorised photographs was essentially the same), he felt that the confidentiality that the Douglases and OK were claiming was coming close to a “character right,” (akin to an American right of publicity) something not recognised under English law.  As OK’s interest was wholly commercial, its claim would need to be founded on the right to short term confidentiality in relation to the “information” in question, the photographs, akin here to a trade secret.  However, he felt that such a right could not persist after publication of the authorised photographs.

Whilst the Douglas v Hello! case had been eagerly awaited by many media lawyers, it actually did little to indicate how the law of “privacy” was likely to develop and whether or not a “Von Hannover” type strict approach would be adopted in England and Wales.  However, further guidance was set to emerge from the lower courts as a body of case law began to build, as we will see in next week’s edition.  

© Davenport Lyons 2008. All rights reserved.

This document reflects the law and practice as at May 2008. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances. 


About the Author

Davenport Lyons [www.davenportlyons.com] is an international business law firm based in the West End of London. The firm has an excellent reputation in areas spanning corporate to property, defamation to intellectual property, music to film finance and digital rights to sport.


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Article Published/Sorted/Amended on Scopulus 2009-03-25 19:25:02 in Legal Articles

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