[ql06] TORT: Are you worthy of privacy?
- From: "K.K. Campbell -- LAW'06" <2kc16@xxxxxxxxxxxxxxxx>
- To: <ql06@xxxxxxxxxxxxx>
- Date: Mon, 20 Oct 2003 18:00:36 -0400
This one makes me puke. Author and lawyer Soames sums it up at the end:
"The moral of this story is, if you want to protect your private life
make sure your image has commercial value."
Charter s.8 is probably where privacy rights will be found here, in
Canada, when the government is intruding. Shouldn't be a need to show
economic damages there and should not be a need in TORT.
Ken.
P.S. The Guardian is one of the world's most intelligent newspaper. Read
it.
--
The United States is putting together a Constitution
now for Iraq. Why don't we just give them ours? It's
served us well for 200 years, and we don't appear to
be using it anymore, so what the hell?
-- Jay Leno
--- cut here ---
Are you worth it?
The lesson from a House of Lords privacy ruling last week is that if you
want to protect your private life, make sure your image is valuable.
Martin Soames
The Guardian
Monday October 20, 2003
We have had wedding cake privacy (Douglas and Zeta-Jones), catwalk
privacy (Naomi Campbell), even a television presenter claiming privacy
in a brothel (Jamie Theakston) and a sportsman crying foul for intrusion
on footballers' lives (Garry Flitcroft). Can a working law of privacy be
built on these candyfloss cases or do they take place in a parallel
universe which has nothing to do with the lives and concerns of ordinary
people?
Whether they are brought under the traditional heading of
confidentiality or not, the strength of feeling in celebrity intrusion
cases cannot be doubted. The common cry of anyone famous whose party or
private life has been gate-crashed by the media is one of violation.
When the Daily Mirror ran a story about Naomi Campbell's drug addiction
she said: "I felt shocked, angry, betrayed and violated by the article."
Catherine Zeta-Jones described Hello!'s bad fairy appearance at her
wedding in similar terms: "It was an appalling and very upsetting shock
... I felt violated and that something precious had been stolen from
me."
Catherine Zeta-Jones was, of course, right: something valuable had
indeed been stolen from her -- her image. She acknowledged that
controlling her image was vital to her career as a film star. She and
her husband did not try to block publication of all photographs of their
wedding: instead they tried to retain control and approval of the ones
which they chose. They could do this because their images are valuable
commodities in the market.
Similarly, Naomi Campbell makes her living by being photographed in
public -- admittedly on occasions of her own choosing rather than in a
woolly hat outside Narcotics Anonymous in the King's Road. By contrast,
people without wealth who neither have nor seek fame of any kind simply
cannot protect their image or exercise control over their right to
privacy by selling it; they have nothing to bargain with.
Peck v UK is a good example. In August 1995 Geoffrey Peck was, like
Naomi Campbell, the Douglases and Jamie Theakston, photographed without
his knowledge. The similarities end there. Peck was not a star: he was
an ordinary person suffering from depression. He was filmed on CCTV in
Brentwood High Street with a kitchen knife in his hand shortly after
trying to slash his wrists. In order to publicise the virtues of its
CCTV system, Brentwood Council sold stills from the footage to two local
newspapers and longer extracts to Anglia Television and the BBC, all of
whom printed or broadcast it.
The surrounding circumstances were not made clear in the published
material: Peck was presented not as a failed suicide but a dangerous man
wandering the streets with a knife. He complained successfully to the
Broadcasting Standards Commission and the Independent Television
Commission, but unsuccessfully to the Press Complaints Commission. And
he applied unsuccessfully for a judicial review of the council's
decision to license the CCTV footage. None of the commissions to which
he complained could award damages.
Having exhausted all legal possibilities in this country, Peck finally
went to the European court of human rights which in January this year
ruled that his right to respect for private life had indeed been
violated (that word again), and awarded him £11,800. Further, it found
that in giving Peck no effective remedy for the violation, the English
law of privacy was deficient. In highlighting the failings of English
law the Peck case has achieved more than any of the celebrity actions.
An incident on a suburban high street has established that there should
be an actionable right of privacy in this country.
When the House of Lords gave judgment last week in Wainwright v Home
Office the focus was again on the protection which the law gives to the
private lives of ordinary people. Again, this was a case about privacy
alone, not confidentiality.
Unlike the celebrity cases, Wainwright involves actual personal
violation. In January 1997 Mrs Wainwright went to visit her son Patrick,
an inmate at Armley jail in Leeds. She was accompanied by her 21 year
old son, Alan, who suffered from cerebral palsy and some mental
impairment. While waiting for their visit they were told they were
suspected of bringing drugs into the prison. They were then separated
and strip searched in humiliating circumstances. Mrs Wainwright believed
that while being searched she could be seen from a building across the
street. She cried during the search. The search of her son was so
grossly insensitive and intrusive that he suffered psychological harm.
Both Wainwrights sued for trespass to the person and invasion of
privacy; Alan also sued for battery. All claims were rejected by the
court of appeal except for the one of battery, which was not contested.
The Home Office appealed to the House of Lords.
In a very conservative ruling, the Lords have found that the Wainwrights
have no actionable right of privacy. They say that the issue of whether
or not there is an actionable right of privacy "must wait for another
day". They have decided to apply the law narrowly rather than to
recognise new aspects, adding that reform of privacy "can be achieved
only by legislation rather than the broad brush of common law
principle". Unfortunately for the Wainwrights parliament has already
passed the buck on this one, too, rejecting the reforming conclusions of
Gerald Kaufman's select committee report on media intrusion.
Given parliament's refusal to acknowledge its responsibilities it is
pitiful that the House of Lords has shied away from the challenge on
privacy. The Wainwrights may hope for something better from an appeal to
the European court of human rights. It is unlikely that there will be
another chance to influence the evolution of this area of the law at
such a timely moment. The Wainwright case is about ordinary people and
their right to privacy. It is uncluttered by celebrities, kiss and tell
confidentiality, considerations of image control or media manipulation.
It is a case based on genuine social need.
The next major decision in this area will be the announcement of damages
for the Douglases and OK! against Hello!. That is, of course, an award
for breach of confidence, not privacy; how could anyone confuse the two?
The moral of this story is, if you want to protect your private life
make sure your image has commercial value.
· Martin Soames is a media litigation partner at DLA
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