Privacy. Intruders not welcome here
9 May 1995
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14 November 2013
The latest invasion of Royal privacy in The Housekeeper's Diary by Wendy Berry has once again focused attention on our privacy laws and those which exist abroad.
Parallels have been drawn with the Spycatcher affair when the UK Government was unable to prevent the publication of Peter Wright's memoirs in Australia. Prince Charles intends to sue his ex-housekeeper in the US for damages, including a claim for all the profits made by the book.
Privacy arguments are well rehearsed. Many were aired after the Daily Mirror's 1993 publication of illicit photographs of the Princess of Wales working out in a gym in London, and again at the subsequent trial in her action against the Mirror Group and gym manager Bryce Taylor, earlier this year.
The Government has for some time been considering changes to libel law, the regulation of the press and the possible introduction of a statutory tort of infringement of privacy.
Sir David Calcutt QC reviewed press self-regulation and reported in January 1993. He recommended a new criminal offence prohibiting bugging or secret photography on private property without the subject's consent should be enacted by Parliament, subject to proposed public interest defences. But on 17 July 1995, Heritage Secretary Virginia Bottomley ruled out a crackdown on the media.
Instead, the Government's White Paper Privacy and Media Intrusion proposed a new press fund to compensate victims of breaches of privacy and called for a tougher Code of Practice for editors. But she ruled out a statutory tribunal or press ombudsman. The Government concluded that the difficulties of defining the scope of a criminal offence of breach of privacy were too formidable.
So in the UK there remains no law of privacy. Although many foreign jurisdictions have laws which seem to protect the rights of prominent individuals few penalise such abuses with sufficient ferocity to dissuade the press from publishing what it feels will sell copies. Therefore, the protection tends to be illusory. In any event, many prominent figures are only too happy to sell their image or secrets when it suits them so the courts feel reluctant to protect celebrities when they complain.
Many people, including lawyers, believe foreign jurisdictions are better able to protect private and public figures from intrusive photographers, biographers and reporters. But is this the case?
An indication of how some foreign jurisdictions would cope with invasions of privacy such as the Princess of Wales gym photographs or those of a naked Prince Charles caught with a telephoto lens and published by German newspaper Bild and French magazine Paris Match, is set out below.
The Argentinian Civil Code was introduced in 1975 and prohibits the publishing of private photographs - it is a criminal offence. It empowers a judge to compensate the victim according to the circumstances at that time. Although the courts give some weight to the principle of press freedom when considering the right to protect privacy, Prince Charles and Princess Diana would have been able to claim damages.
Privacy legislation is in its infancy in Australia. The existing federal statutes relate to the activities of government agencies, credit providers, credit reporting agencies and private enquiry agents rather than the press. As here, copyright vests in the photographer not the person photographed and, as the then Prime Minister Margaret Thatcher found out to her cost in the Spycatcher litigation, Australian courts are reluctant to protect allegedly confidential material unless it reveals something in the nature of a "secret". Australian courts would be unlikely to find anything confidential in a picture of a naked man or the private lives of British Royalty.
Except for some legislation on the protection of privacy in relation to databanks the right of privacy is not protected by statute. The courts, however, apply the principles of article 1382 of the Civil Code (tort liability) and article 8 paragraph 1 of the European Treaty of Human Rights and Fundamental Liberties: "Everyone has the right to the respect of his private life, his family life, his home and his correspondence."
As the Prince did not consent to the photograph being taken he would be entitled to compensation for actual and "moral" damage.
In Denmark the criminal law protects privacy by law number 389 (1989): "He who is responsible for an unlawful invasion of another person's liberty, peace, honour or person must pay an indemnity for injury." It is a crime to take photographs of individuals when on private property or to publish such photographs. There is a penalty of a fine or up to six months imprisonment. The law is not, however, restrictive to broadcasters as the damages awarded are so low as to be ridiculous. Cases are usually settled by the offending newspaper making a payment to charity.
No privacy law as such exists at present but the Egyptian Parliament is considering passing legislation to limit press liberty in the private lives of celebrities and political figures. The Egyptian press is rather conservative, however, and did not publish the photographs of Princess Diana in the gym.
Privacy is protected by article 9 of the Civil Code which provides that everyone has the right to respect of their private life. Any violation of the right to privacy can lead to the plaintiff obtaining civil remedies such as the imposition of damages, seizure of the offending material and the newspaper's mandatory publishing of details of any judgment against it. In 1986 the former Empress of Iran, Farah Diba, was awarded 150,000 francs after a newspaper published photographs of her in a bathing suit.
The French press can, however, publish photographs of famous people without their authorisation if they relate to their profession or their public appearances so long as the publication is legitimised by a right to inform. This "justification" is rolled out every time topless photographs of Caroline Grimaldi, Princess of Monaco, appear. But right-wing French politician Le Pen was awarded 100,000 francs after the publication of a picture showing him partially naked on a beach. The award of such damages does not stop magazines such as Paris Match from invading the privacy of Charles and Diana.
The Germans are fiercely litigious - nearly half of the country's home owners invoked the law against their neighbours in 1992. Offensive invasions of privacy are often the subject of actions in the civil courts which require newspapers to publish corrections. But the German press is still able to publish salacious stories and pictures.
Damages can be awarded where there has been a breach of privacy but there are exceptions to the general law that "the portrait of a person shall not be exposed, reproduced or offered for sale without the consent of the latter". Italian courts do, eventually, award damages for intrusive journalism but not in sufficient sums to dissuade Italian media moguls from seeking to satisfy the public's desire for gossip.
There is a right of privacy under Irish law which stems from the Irish constitution of 1937. This right has been confirmed in a number of cases in the Irish courts, notably Norris v Attorney General (1984). David Norris asked the Court to rule that an 1861 Act criminalising homosexual conduct between consenting males in private was unconstitutional as there was a limit on the State's power to control private conduct. The court upheld the constitutionality of the statutory provisions but accepted that a right to privacy was guaranteed in Ireland.
Privacy is protected but judges are reluctant to grant high damages: the highest award is only the equivalent of £3,000.
The Privacy Act 1993 sets out 12 privacy principles which regulate the collection, use and disclosure of personal information. A breach may give rise to a claim for damages. The privacy commissioner believes that a photograph is personal information and, most probably, would have prevented the publication of photographs of Princess Diana in a leotard or Prince Charles naked. Interestingly the privacy commissioner is to act as a mediator in settling disputes and may call a compulsory conference of the parties with a view to reaching a settlement, a practice which could prove useful here.
The Spanish Royalty has an understanding with the media that intimate photographs will not be published. In return they make themselves available for various photo opportunities. There is a privacy law although penalties are not severe.
The right of privacy is a relatively young doctrine in the US but has developed at break-neck speed. The need for such a right was first proposed over 100 years ago and things have not changed much. In 1890 Lewis Brandeis and Samuel Warren stated: "The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip...has become a trade, which is pursued with industry as well as affrontery."
The right of the US plaintiff to "be let alone" has developed into four types of actionable invasion of privacy: public disclosure of private and embarrassing facts (true but offensive material of no legitimate public concern); publicity which places an individual in a false light; intrusion into seclusion; misappropriation of someone's name or likeness for advantage (for example using Elvis Presley's image without the consent of his estate).
But the First Amendment guarantees the right to free speech and press freedom. The dustbins of the famous are inspected by newshounds and contents listed and published. But the "public has a right to know about public figures" defence fails when malice can be shown - a dominant improper motive provable to the satisfaction of the jury.
Revelations about Princess Diana's private life would be unlikely to be actionable. The determination of the US press to search out secrets and "expose" them can be seen from the reporting of the OJ Simpson murder trial in California.
Duncan Lamont is a media solicitor at Biddle & Co.