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Last Updated: Thursday, 14 December 2006, 20:48 GMT
Ruling puts pressure on celebrity books
By Jon Silverman
Legal affairs analyst

Catherine Zeta Jones and Michael Douglas
Legal experts are awaiting a ruling over wedding pictures in OK!

Canadian singer Loreena McKennitt has won a privacy case in a judgement at London's Court of Appeal seen as significant for celebrities facing media exposure.

English law, unlike that of France for example, does not recognise a statutory right to privacy.

Any legal developments have had to be made through interpreting the law on breach of confidence.

Inevitably, in a media-driven age, much of the argument played out in the courts has revolved around celebrities - the model, Naomi Campbell, the actors, Michael Douglas and Catherine Zeta Jones, and the Beckhams.

The McKennitt judgment involves a lesser-known figure (at least in the UK) but the legal issues are of fundamental importance in the contest between the right to privacy and the right of free expression.

Third parties

The media may see the judgment as a setback.

A cluster of media organisations, including the BBC, had sought to intervene in the case, recognising its significance.

What the appeal judges have said is that a pre-existing relationship of confidence existed between the Canadian singer, Loreena McKennitt, and her friend and business associate, Niema Ash.

And that, by writing a book containing information about Ms McKennitt's health, her emotional state and her feelings about her dead fiance, the writer was breaching her duty of confidence.

Without their consent, you may be breaching a duty of confidence
Martin Soames, media lawyer

Ms Ash had argued that, because of her intimacy with the singer, they had had a "shared experience" and that she was entitled to tell her side of it.

To this, the judges retorted that the book was not about Ms Ash at all, so the argument fell.

Media lawyer, Martin Soames, said the ruling would pose problems for certain kinds of revelatory book.

"If you are writing an autobiography, you may have to think very carefully in future about aspects of the story which involve revelations about third parties," he said.

"Without their consent, you may be breaching a duty of confidence."

Moreover, even material already in the public domain can be held to be private and thus protected from further exposure.

Image rights

Those hoping that the judges might have made some ground-breaking comments about the balance of power between Article 8 of the European Human Rights Convention, the right to privacy and family life, and Article 10, guaranteeing freedom of expression, will be disappointed.

They conclude that neither has precedence over the other and that a test of proportionality must be applied in every case to decide which is the more persuasive.

The next focus of interest will be on the law lords when they deliver judgment on an appeal in a case concerning the publication of wedding photos of Catherine Zeta Jones and Michael Douglas.

A ruling in the lengthy court battle between OK! and Hello! magazines over publication of the pictures is expected in early 2007.

OK! secured a deal with the couple to publish exclusive pictures of the wedding in 2000.

If the ruling goes the way of OK!, celebrities may be able to claim "image rights" which will prevent the publication of photographs taken on private occasions.


SEE ALSO
Singer wins book privacy case
14 Dec 06 |  Entertainment
Zeta Jones wedding photo row ends
24 Nov 06 |  Entertainment

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