There is no universal answer to these questions which fuelled the debate, particularly following the Human Rights Act 1998, on the merits of free speech weighted against the right to personal privacy.
While a law of privacy is long overdue in the UK, judges have actively construed common law principles of confidence, trust and contract to decide privacy claims. Long over a century ago, Prince Albert was successful in preventing a publisher from reproducing etchings made for the Queen’s pleasure on the basis of an implied relationship of confidence. 1
Since the coming into effect of the Human Rights Act 1998, the United Kingdom is under a positive obligation to ensure the comprehensive protection of privacy under Article 8. At the same time, Article 10 entitles the media to probe and publish without restraint. Both these rights are qualified and neither has precedence over the other.2
Privacy protects individuals’ dignity and preserves their personality and well-being. Privacy is a key to self autonomy and independence; it is an essential ingredient in the process of human flourishing. Lack of privacy can cause severe emotional distress and psychological disturbances, which can be more painful than physical injury.
Public figures do not have the same right to privacy the average citizen enjoys. In the United States, this practice is explained by the notion of ‘implied consent’; which assumes that public figures who voluntarily thrust themselves to the public eye, have impliedly waived most of their rights under privacy.
However, this does not mean that public figures are completely barred from any kind of protection, there are ‘some things all men alike are entitled to keep from popular curiosity, whether in public life or not’.3
‘Public interest’ or ‘the right to know’ is the essential argument justifying an intrusion into the private lives of public figures. Despite its ill-definition, the concept is critical to robust public debate.
In a liberal democracy, where the government is elected by the people and accountable to them, the press exercises a vital role of a “watchdog” by reporting cases of suspected corruption or misconduct by public officials. This process of constant press surveillance invites closer public scrutiny on matters of importance to the community.
Investigative journalism can also be justified on grounds of ensuring that prominent public figures set a positive ‘role model’ to the younger generation of the society. Garry Flitcroft, a former English footballer and Blackburn Rovers captain, was accused of engaging in extramarital affairs. Mr Justice Jack said that “footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example.”4
It is true to sports players that ‘although they have not courted publicity, are because of the nature of their occupation, nonetheless in the public eye.’5 However, one could morally argue that the tabloid and magazine front covers have paved the path to stardom for many of today’s well-known celebrities; hence, a practice of ‘pick and choose’ favourable publicity for personal benefits over unfavourable ones should not be tolerated.
The press is also interested in setting the record straight where dishonest or untruthful claims are made by a public figure. Supermodel Naomi Campbell who had previously lied about her use of drugs has accepted that the newspaper was legitimately entitled to uncover the truth about her drug addiction, although publishing pictures of her infront of the ‘Narcotics Anonymous’ treatment centre was held by the European Court to be excessively intrusive.6Similarly, celebrities, such as the Beckhams and ‘Brand Ramsay’, who ‘made million’ out of portraying a false image of their marriages to the world, should be publicly condemned and discredited.
The exposure of Jamie Theakston hypocrisy has been heavily weighted in favour of public interest, especially when considering the way he portrayed himself as a respectable enough person to present TV programs for young people.7
‘Kiss-and-tell’ stories appear to have no greater good than to occupy the indolent. They fail to contribute to the development of public opinion. For this reason, the ECtHR in Von Hannover could not justify publishing photographs of Princess Caroline, albeit in public places. It has also drawn the line between public figures who exercise official functions and those, including the claimant, who generally attract public attention (as a member of the royal family) but exercise no official functions; only in the former, an intrusion of privacy could be justified in terms of free speech. 8
Warren ; Brandies argued that publication of salacious invasive material is in fact counter-productive as ‘when personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community; Triviality destroys at once robustness of thought and delicacy of feeling.’ 9
In the United States, there is a strong commitment to the protection of the First Amendment freedom of speech right. The actual malice standard established by the US Supreme Court in New York Times v. Sullivan severely limited the number of privacy claims and particularly those brought by public figures rarely prevail. 10
In contrast, the UK since 2004’s landmark decision in Naomi v. MGN Ltd., has developed a new trend, strongly influenced by the European case law, towards extensively expanding the right to privacy, which inevitably opened a floodgate of breach of privacy claims by public figures; including most recently Sienna Miller who won a ï¿½35,000 damages from the Sun and News of the World and Max Moseley’s victory in the Nazi orgy court case. 11
The judges new approach is critical and in need for reconsideration. While breach of privacy may affect one person alone, an obstruction to freedom of speech can paralyze an entire nation.
When it comes to defamation, London is the libel capital of the world. For public figures seeking to preserve their reputation world-wide; the English defamation law provides the utmost plaintiff-friendly environment for libel cases, where the balance, until very recently was almost always struck in favour of protection of reputation over freedom of speech. 12Arab businessmen13, Russian oligarch14 and other international public figures chose London as their number one libel destination to protect their person from being lowered in the estimation of right-thinking members of society.15
Despite its appeal to claimants, Britain has become a ‘no-go’ area for the media to publish information which can be freely disseminated elsewhere in the world.
The common law, as it was, seemed to be tailored to serve the class system in Britain; where the idea of clearing one’s name is linked to an age where dignity and status where determined by libel cases. Libel was a measure of gentry and nobility and not for punishing erroneous publishers; thus, cases involving allegations of cheating at cards and shooting foxes came before the court. Judges helped solidify these presumptions by asserting that any slur on an individual’s character must be false and maliciously published unless proved otherwise by the defendant. 16
Traditionally, only privileged occasions were allowed to pass without having to be proven true; such as debates in Parliament or sworn evidence in court. A requirement of ‘duty’ to publish was established in Adam v Ward, which is triggered where the publisher has a legal, moral or social duty to publish the statement and the audience has a reciprocal interest to receive it.17 However, in Blackshaw, the Court held that ‘no privilege attaches yet to a statement on a matter of public interest believed by the publisher to be true and in relation to which he has exercised reasonable care”, and the concept of ‘duty’ has been narrowed down to cases where urgency is so great that it warrants communicating, for example, in times of danger to the public from a suspected terrorist or the distribution of contaminated food or drugs. 18
Indeed, this approach was so restrictive that it allowed public figures such as John Profumo, Minister of War at the time, to recover libel damages for accusations of dallying with a prostitute, a few weeks before he admits its truth in Parliament. Others such as Liberace recovered a great deal of money when the Daily Mirror alluded to his homosexual inclination, which in fact is true. This ‘chilling’ effect has hampered the British media for a long time and inhibited it from covering important scandals such as the sale of arms to Iraq and the collapse of Lloyd’s of London properly.19 And it is the same reason behind the highly cautious approach of critics of Robert Maxwell as well as the American court’s refusal to apply an English judgement; on grounds that English libel law was “anti-pathetic to the First Amendment”.20
In light of the European Convention on Human Rights (ECHR), a change in the strict formulation of the law of defamation was imminent.
In response to this call, the Court, in the famous Reynolds case, has sought to expand the ambit of “qualified privilege” defence to include; in absence of malice (where publisher knew the information was false or was recklessly indifferent to its truth); any communication made to the general audience to deliver credible material of public interest, where the publisher was motivated by a duty to inform the audience, and where reasonable care and fairness has been practiced when publishing.21
The Court of Appeal accepted that the publication of “political material”-a widely defined concept which includes “the conduct of government and political life, elections … and public administration” and also “matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure …” –could be protected by the qualified privilege defence if; “the nature, status and source of the material, and the circumstances of the publication, [were] such that the publication should in the public interest be protected …”.22
The House of Lords upheld this decision while recognising the importance of free speech in a democratic society and the media’s ‘watchdog’ role and went as far to say that “the court should be slow to conclude that a publication was not in the public interest and …the public had no right to know, especially when the information is in the field of political discussion’.
Further, Lord Nichols has established ten-fold illustrative guidelines to determine whether the publisher has acted responsibly. These include an assessment of the source of the information, the steps taken to verify this information and whether a comment was sought from the defendant.
Ironically, in the case itself; which involved a series of allegations in the British edition of the Sunday Times, about Albert Reynolds, the former Irish Prime Minister, accusing him of deceiving the Parliament and his party coalition colleague, the defence was not allowed. This was due to the sensational tone of the article, as it presented the allegations as statements of fact and did not give account to the explanation Reynolds provided to the Irish Parliament.
Reynolds privilege was intended to have a liberalising effect on investigative journalism where the defamatory story could not be justified or proved erroneous after publication time. In its immediate aftermath, a solicitor for the Sunday Times was perhaps being ‘unduly optimistic’ in assuming that the paper has won a “significant victory”, as the defence proved overcautious.
It is unfortunate that the defence which seeks to uphold a fundamental freedom was attached to the archaic concept of ‘privilege’; where it is believed that duty to publish defamatory claims only arise in times of emergency. Also, regrettably Lord Nichols criteria were taken by trial judges to be ‘ten hurdles’ which has to be satisfied in order for the defence to proceed.
Applying it this way, claims under Reynolds privilege were usually rejected.
In a case involving the well-known goalkeeper Bruce Grobbelaar against the Sun, he was accused of game-fixing and accepting bribes to lose matches. Due to the sensational tone of the article, the Court has quashed the qualified privilege defence. In Loutchansky, an international businessman was accused by the Times of running a Russian criminal organisation. The defence was again dismissed on grounds of failure to adequately check the truth of the allegations and contact the claimant for their side of the story. George Galloway, the leader of Respect coalition and MP won a sum of ï¿½150,000 when he was accused by the Daily Telegraph of being in the pay of Saddam Hussein’s regime. The paper, which relied on documents it found in government offices in Baghdad, lost before the court, as they did not put such serious claims forward to the claimant for verification before publishing.23
With a success rate of only twice and on atypical facts, in its first seven years of availability, by 2006, Reynolds defence has come to be regarded as an illusion. 24
The anomaly of Reynolds defence was further proved in trial and Court of Appeal in the case of Jameel v Wall Street Journal. However, when reviewing the facts, the House of Lords had a completely different view.