Channel 4 Diana saga was a privacy non-starter

Nearly 10 years after the death of the Princess of Wales, the media fascination with her continues. But an indication that most of what can be said about her death has been said already is the fact that the much-hyped Channel 4 programme Diana: The Witnesses in the Tunnel, when shown last month, passed off without much comment.

Before its broadcast it attracted numerous complaints and of course a high-profile request from Princes William and Harry that it should not be shown, but these did not lead to an application for an injunction.

On first sight this is surprising given that the developing law of privacy appeared to offer them assistance. So why didn’t they injunct?The starting point for any claim in privacy in respect of a broadcast programme is the Ofcom Broadcasting Code, which specifies that any infringement of privacy in a programme or in connection with the obtaining of material included in a programme must be warranted. This is usually in circumstances where the broadcaster can show it is in the public interest.

Privacy is described in the code as “a legitimate expectation of privacy”. This echoes the wording of Lady Justice Hale in Naomi Campbell v Mirror Group Newspapers Limited (2004) and is elsewhere described in that case as the “misuse of private information”.

There must be a reasonable expectation that, in the tragic circumstances of a fatal crash, the last moments of life will be private. Accordingly, Princess Diana clearly had a reasonable expectation of privacy. Following her death that expectation would extend to protecting her children from any invasion of their private grief by the misuse of private information about her death.

Photographs as held in the Campbell case have a far greater impact and effect than words. This was reinforced in Von Hannover v Germany (2004) in the European Court of Human Rights, when the court decided that constant publication of photographs of Princess Caroline of von Hannover did breach her Article 8 human rights.

Clearly, then, photographs of the princess’s death would have been held to be ‘private information’. But the question then was whether or not they were now so publicly accessible that they had lost any quality of privacy or confidentiality. It is apparent that the photographs were ones that had been seen before, in their present form in tabloid newspapers and in an even more explicit form in European magazines. It would appear that the princes did not make an application for an injunction because the information was already in the public domain.

The other test for the courts was to balance the princes’ right to privacy against the media’s right to freedom of speech.

Lord Woolf in Garry Flitcroft v Mirror Group Newspapers Limited (2002) made the bold statement that “the courts must not ignore the fact that, if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest”.

This applies just as much to the media as a whole as to newspapers, but has, following the decision in Von Hannover, been somewhat discredited.

What real news value there is in further exposure of what are obviously distressing photographs 10 years after the event is questionable. Again, as Flitcroft shows, the court has no role as a censure of taste – it has to look at the ‘substantive’ content.

What the court would have decided as to whether it was in the public interest we shall never know, but I suspect it would have avoided it by deciding the information was already in the public domain.

So the princes’ failure to apply for an injunction should not be seen as a failure of the developing law of privacy, but acceptance that, as Channel 4 said, the information was already in the public domain and had lost its essential ‘private’ quality.