Privacy: Dead or Alive?

Readers of British newspapers could be forgiven for jumping to the conclusion that the judge in the recent Zeta-Jones/Douglas v Hello! case drove a sword through what the media portrays as a dreaded monster, privacy law.

Negative headlines abounded. The red-top tabloids were the worst. The Sun ran an article under the headline 'Hollow!', and the article beneath it said in its introduction '…she LOSES on privacy'. The Mirror echoed these sentiments with its headline, 'Victory for Sense Over Star Vanity', and said, 'No privacy law exists in this country and nor should it'. Indeed, the Mirror Group was so vehement in its proclamation that the UK's nascent privacy law had been still-born by the Human Rights Act 1998 that a Sunday Mirror column proclaimed: 'Thank God justice and good sense prevailed and [Zeta-Jones] and husband Michael Douglas lost their ludicrous claim against Hello! magazine for invasion of privacy'.

The broadsheets were little better in their analysis of the case. The Times said: 'The judge threw out their invasion of privacy claim'. The Financial Times came nearer the reality of the matter when it said '[The judge] rejected any need to find that the film stars were entitled to damages under a separate and more recently mooted privacy right'.

But even comment such as that obscures the fact that the judgment in the case actually and unequivocally indicated that far from privacy law being dead, it is alive, growing and soon will be established law. Privacy law simply was not needed to win the Douglases' case. As OK! and Hello! had bid for exclusive rights to photograph the wedding and the Douglases had insisted on guests respecting the privacy of their wedding, the law of confidentiality was applied by the judge rather than the law of privacy.

This is very different from saying that privacy law is dead. What the judge (Mr Justice Lindsay) actually said was that the law of confidence was adequate for this case but in other cases privacy law may be needed. In no part of the judgment did he say that privacy law did not exist. Indeed, he stated that privacy law could be applied 'when a case arises in which the existing law of confidence gives no or inadequate protection'. However, he warned that privacy law in the UK did not go far enough and urged Parliament to introduce legislation.

Notwithstanding the judge's concerns about the current shortcomings and uncertainties in UK law, people who want to protect their privacy should also take heart from the Douglases' case because it indicates how far the law of confidence can be used to protect privacy. The judge in the case said: 'I… regard photographic representation of the wedding reception as having had the quality of confidence about it… As I have said, the very facts that Hello! and OK! competed for exclusivity as they did and that each was ready to pay so much for it points to the commercial confidentiality of coverage of the event. The event was private in character and the elaborate steps to exclude the uninvited, to include only the invited, to preclude unauthorised photography, to control the authorised photography, and to have had the Claimants' intentions in that regard made clear all conduce to that conclusion… Everyone there knew that was so.'

The judge also scotched any argument that being famous reduces a person's right to the law of confidence protecting their privacy, or that welcoming the press in other situations meant the press had a right to intrude whenever it chose. He did say, however, that the context surrounding any given situation would be taken into consideration. The judge said that in this case the Douglases had shown 'a genuine and reasonable belief' that their steps to maintain the confidentiality of their wedding would ensure that 'an offensive media frenzy would be avoided'.

When deciding the case, the judge weighed the right of the press to freedom of expression against the claimant's right to confidentiality over their private affairs. He looked to the Press Complaints Commission's Code - similar codes exist for other areas of the media, such as broadcast, and would no doubt hold the same sway in future cases - and found that, 'I do not hold the intrusion to have been justified'. This demonstrates that the human right of freedom of expression does not have a presumptive priority over other rights.

What also gave the claimant's case weight was that it was clear on the facts that the case was not about money for the Douglases. What they set out to do was obtain an injunction against Hello! to stop it publishing the photographs. This was refused by the Court of Appeal in November 2000, which set aside the injunction granted by the court below and said the Douglases should look for financial compensation. The High Court has now re-imposed an injunction to stop future publication of the offending photographs and financial compensation has been left for a hearing at a future date.

The judge said: 'I have no doubt but that Mr Douglas and Miss Zeta-Jones both suffered real distress, though it is no present task of mine to attempt to put some compensatory cash value upon it. An aspect of their distress, which led Miss Zeta-Jones to tears, was their wondering, if it was a guest, which of their guests it was that had betrayed them.'

In fact the photographer was a paparazzo named Rupert Thorpe who had infiltrated the wedding without anyone knowing and surreptitiously taken the pictures.

What this case has established is that no one, whether famous or not, should have to endure unjustifiable invasions into their private lives, and that the law will do its best to protect them. This can be through the law of confidence or the law of privacy, depending on which is the most relevant for the case in hand.

Another lesson of the case, and the media reaction to it, is that perhaps people should not always take at face value what they read in newspapers. The press likes to portray itself as an entity that fights injustice and exposes the truth. These are noble aspirations, but the ability to achieve them requires liberty, and unlimited liberty can curtail the freedom of others. That is why the legal system imposes checks on the power of the press via laws such as defamation, contempt of court and confidence. A new and increasingly potent weapon in this armoury is the law of privacy.

Ryan Dunleavy

In the Douglas/Hello case the legal teams of both parties were headed by Carter-Ruck trained lawyers - Maninder Gill, the Group Secretary and Legal Director of Northern & Shell Media (the publishers of OK! magazine) and Chris Hutchings at Charles Russell (who represented Hello!).

Get Carter-Ruck
Summer 2003