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 Tuesday, 21 January, 2003, 22:44 GMT
Analysis: When Europe's privacy laws collide
Woman reading
British readers have developed a taste for scandal

European visitors are often astonished by Britain's raucous, sensational and scandal-obsessed tabloid press.

It seems very different in its relentless (and often unauthorised) scrutiny of the private lives of politicians, sports stars and celebrities of all kinds.

One reason is that Britain is one of the few European countries without a privacy law.

[In Germany] the ruling classes exist in a state of complacent arrogance, constantly confident that whatever their conduct, they may resort to the courts, which will help them hide behind a spurious cloak of privacy

Phillip Hensher
Independent newspaper columnist
Newspapers and magazines in countries like France and Germany are inhibited in what they can print by legislation; the British tabloids face no such constraints.

That's why last weekend's stand-off between Britain's Mail on Sunday and Germany's Chancellor Gerhard Schroeder is so interesting.

The row encapsulated the differences between the German and British media - as well as giving a famously Eurosceptic newspaper a chance to bash yet another European institution, its law.

Chancellor Schroeder's lawyers were back in court in Berlin on Tuesday, seeking to continue an injunction gagging an eastern German newspaper which was one of the first to air potentially damaging allegations about the state of Mr Schroeder's marriage.

Both he and his wife Doris have denied their marriage is in trouble.

On Tuesday the court agreed there was no public interest in publishing rumours about the chancellor's private life.

It is not the first time the chancellor has gone to law in this fashion. Last year he famously won a court order preventing the media claiming he dyes his hair (he doesn't).

'Spiritual protection'

He can do this because the right to privacy is enshrined in the German constitution, the Basic Law, drawn up after World War II.

The law protects personal information about an individual and their intimate personal life.

Late French President Francois Mitterrand
Mitterrand: Some say privacy laws gave him too much protection
It protects them against intrusions that might damage their honour, good character and public reputation, and gives them rights over their own personal appearance (for instance, in the way photographs are used) and their own name.

There are similar provisions in other continental European states. In France, for instance, the right to privacy embraces "all aspects of an individual's spiritual and physical being".

People can decide for themselves how much of their private life they wish to reveal.

What mistress?

This includes whether and how they want their own image to be used, and how much they want to publicise about their health, their political and religious beliefs, where they live, their own and their family's health, their marital status and romantic relationships.

So for years the French media refrained from publishing the fact that President Francois Mitterrand had a mistress.

And Sarah, Duchess of York, won damages from Paris Match after the magazine published unauthorised photos of Fergie having her toes sucked beside a swimming pool by her then boyfriend, John Bryant: British newspapers were able to publish the same pictures with legal impunity.

Britain has no such law and the media in the UK have fiercely resisted all attempts to introduce one, claiming it would be unworkable, would be an unjustified curb on the freedom of the press and would be open to misuse (like Britain's draconian libel laws) by criminals and others with something to hide.


The closest the UK press have come to acknowledging a right to privacy was the establishment of the Press Complaints Commission, bankrolled by the newspapers themselves, whose voluntary code of practice says: "Everyone is entitled to respect for his or her private and family life, home, health and correspondence."

But the code does not outlaw unauthorised intrusions into people's private lives, it simply requires them to be "justified".

Some politicians and a few judges still talk wistfully of the benefits a privacy law might bring, but the law as it stands does not recognise a right to privacy.

Sarah Ferguson
Fergie: sued in France, but powerless in the UK
Apart from the right to sue for libel if one's reputation is damaged, the only right recognised in English law is the right to expect anyone who owes you a "duty of confidence" (for instance, an employee) to respect that confidence and not disclose private information.

So when the Mail on Sunday published allegations about Chancellor Schroeder's private life on 5 January, and his lawyer sent the paper a letter asking it not to repeat the allegations and to pay a fine of 250,000 euros ($268,000) if it did so, the stage was set for an inevitable clash.

In the event, before the paper could formulate a suitably scathing response, the chancellor obtained an injunction against the Mail on Sunday in a Hamburg court.


Incensed at what it saw as the head of government in one European state trying to censor the press in another, the Mail on Sunday went ahead and repeated the allegations on 19 January - though prudently it did not distribute the issue in question in Germany, just as it had not distributed the original allegations.

"People such as Mr Schroeder, who dream of a federal European super-state ruled by elites and bureaucrats, clearly think German law ought to apply to us," the paper wrote.

"But for now, at least, we can ignore this blustering and these threats.

"Because of our different tradition and our robust democracy, we can publish this sort of material and believe we have every right to do so."

As it turned out, the injunction applied only to publication in Germany - a fact confirmed on Monday by a spokeswoman for the court in Hamburg.

But the Mail on Sunday was not alone in Britain in finding the chancellor's intervention unacceptable.

Philip Hensher, a columnist for the broadsheet Independent - a newspaper which is normally no friend of tabloid excesses - wrote of the differences highlighted by the case between British and German political cultures.

In Germany, he wrote, "the ruling classes exist in a state of complacent arrogance, constantly confident that whatever their conduct, they may resort to the courts, which will help them hide behind a spurious cloak of privacy."


And another liberal broadsheet, the Guardian, while it felt some sympathy for a German chancellor "on the receiving end of some traditional British nosey parker reporting", was just as alarmed by the Mail on Sunday at the suggestion that UK papers might be sued in foreign courts for anything they published.

The Guardian, which followed up the Mail on Sunday's report, was also prudent enough to keep its stories about the matter off its website, which can be readily accessed in Germany.

The experience of British tabloids suggest the public have an almost insatiable appetite for gossip and scuttlebutt about the private lives of the rich, the famous and the powerful.

Some German commentators have suggested the German public lack the same enthusiasm; a British cynic might say that's because Germany's privacy laws have ensured they've never been able to develop a taste for it.

See also:

21 Jan 03 | Europe
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