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Privacy: ignore at your peril
11:06am Thursday 8th December 2011 in Advice
No doubt each and every one of you will have an opinion on whether, and if so to what extent, the actions of the News of the World should be condemned and the individuals responsible chastised.
However, I have every confidence, it having been the best-read Sunday newspaper in the English speaking world, that many of you who hold such a view will have spent at least a few minutes reading the sensational headline stories regarding Max Mosley, the Duchess of York or the recent fixing of cricket matches, to name but a few.
Michael Kinsley, an American journalist, working for the online magazine, Slate, during the Monica Lewinsky affair, rather neatly observed this apparent hypocrisy when he said: “Their e-mails say no no, but their mouse clicks say yes yes.”
Without making excuses for the News of the World, the public’s need for celebrity gossip goes to the very heart of the debate about the extent to which an individual has a right to privacy.
Right to Privacy versus Freedom of Expression
Before the introduction of the much-maligned Human Rights Act, English law did not recognise an individual’s right to privacy. That has now changed.
Article Eight of the Human Rights Act protects an individual’s private and family life. Many would argue those rights should be regarded as sacred. Or would we?
If we regarded these rights as sacrosanct then we should, for example, be outraged that John Terry’s “fling” with Wayne Bridge's ex-girlfriend Vanessa Perroncel was splashed all over the media.
We should be appalled that Max Mosley’s private life is reported the world over and dismayed Sven Goran Eriksson’s conversations with someone he thought was a genuine sheikh were on the front page the following day.
But that simply isn’t the case.
To justify these front page stories about the likes of Max Mosley or John Terry and so satisfy our craving for scandal and gossip, the media cite Article 10 of the Human Rights Act and their rights to Freedom of Expression.
Whilst both rights are vital cogs in a democratic society, only one can prevail in a legal case for breach of privacy.
When cases concerning privacy have come before the courts, the judiciary have had to balance that individual’s right with the right to free speech.
In determining this, the court considers which, comparatively speaking, is the more important right, considering issues of proportionality as well as whether the infringement is justified.
The legal defence most regularly advanced by the press in defence of an infringement of the right to privacy is that the story was “in the public interest”. But what does this mean?
This is far from certain. What is sure is that what engages the interest of the public is not necessarily information which is in the public interest.
In the majority of high-profile cases, the right to privacy has prevailed notwithstanding the fact that the complainant is a celebrity who often courts publicity.
A balance must be met between the rights of the individual and the right to freedom of expression. But what is clear is that the fact the individual concerned is a celebrity does not mean they are somehow fair game.
Newspapers and magazines sell by printing stories that interest the public.
Paul Dacre, editor of the Daily Mail, recently went before the Leveson inquiry to address the issue of the future regulation of the media which has been prompted by the phone hacking scandal.
Mr Dacre condemned phone hacking.
But he advised the inquiry that newspapers give voice to the voiceless and expose the misdeeds of the rich, the powerful and the pompous.
He added: “In an age of global communication, imposing rules on British print publications is not going to stop the spread of "celebrity tittle tattle’.
In the wave of recent decisions on the law of privacy, editors of the UK’s media will have to increasingly balance the rights of those about whom it writes with the desire to sell newspapers.
The majority of the cases to date concern celebrities. But do not be fooled into thinking you are never going to come into contact with the law of privacy.
Individuals in legal disputes regularly engage private investigators to track, follow and trace.
Bins are often rifled through. Individuals get hold of documents (often electronic) they are not entitled to and which are clearly personal. Phones are sometimes hacked, e-mails intercepted and surveillance is often done covertly and without due regard to the rights of the individual.
Information obtained in this way may be regarded as private and the person who has obtained that information or instructed them to obtain that information may be guilty of infringing an individual’s right to privacy.
This may result in injunctions, damages, or, worse, criminal sanctions such as a fine or a prison term.
Whether you are an A-list celebrity, a large news corporation or a mere Jack Jones, privacy laws are here to stay and you should ignore them at your peril.