Lord Justice Sedley: courts are ‘rabbits in the headlights of the press’

Catherine Zeta-Jones famously laughed off the 1m GBP OK! Magazine paid for photos of her wedding to Michael Douglas as “not that much to us”, so one can only imagine how insignificant was the paltry 14,600 GBP damages they are to receive for the damage caused by the publication of unauthorised paparazzi pictures of their wedding, as announced on Friday (7 November). To break the figure down, Hollywood’s golden couple were awarded only 3,750 GBP each for the distress they suffered, plus 50 GBP each for a breach of their rights under the Data Protection Act, and 7,000 GBP to cover expenses. By contrast, OK! was awarded 1.03m GBP against its celebrity rival Hello! in the landmark case that has been running for three years and which is reckoned to have cost in the region of 4m GBP in lawyers’ fees.

As far as lawyers are concerned, the message was clear: as “unconscionably” as Hello! had acted, as the High Court put it in April, the court did not uphold a freestanding right to privacy. But not every judge was towing the party line last week.

The ‘secret policeman’ whom the architects of the European Convention on Human Rights (the convention) had in mind in 1950 had “in significant part been supplanted by the tabloid journalist”, argued Lord Justice Sedley at the Legal Action Group’s annual lecture last week. The judge has a unique vantage point, as he was one of the three Appeal Court judges in the Hello! case.

He went on to argue that the reporter was not – or “not yet” – a “state official” for Article 8 purposes, and enjoyed rights of free expression protected by Article 10. Such convention rights “could have been developed” in the recent string of high-profile privacy cases to create “the kind of balance between the rights of celebrities to a little peace and the rights of journalists to tell all”.

“That has not happened,” Judge Sedley reflected. “But the weakness – and I believe it to be a serious weakness – has not lain in our understanding or use of the convention.” He flagged up last month’s Wainwright case (see (LawZone Newswire 233) concerning the non-celebrity scenario of a mother and brother visiting a prisoner, who were subjected to a degrading and unnecessary body search but were denied any remedy for the invasion of their privacy. That decision reflected “a reasoned hesitancy, but a hesitancy nonetheless” to tackle the problem, he added.

“That moment has now gone,” said Judge Sedley. “Some will see it as a wise policy of leaving the complex issue of privacy to Parliament. Others will see both Parliament and the courts as rabbits in the headlights of the press.”

It is not difficult to work out which camp his lordship was in.