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Last Updated: Monday, 9 June, 2003, 15:40 GMT 16:40 UK
Privacy law remains confused

By Nick Higham
BBC Media Correspondent

Newspaper headlines can be dangerous things. Saturday's Guardian splashed with a sensational story headlined "Sara Cox wins key human rights ruling against press".

From that it sounded as if the Radio 1 breakfast presenter had persuaded a judge to rule in her favour in a landmark privacy case against the People newspaper.

It was only on detailed reading that you realised the People had agreed to pay Cox 30,000 and her husband Jon Carter 20,000 not as a result of a formal judgement, but in an out of court settlement.

Michael Douglas and Catherine Zeta-Jones won their case

There was no court hearing, no "ruling", no legal precedent, no landmark.

I plead guilty here - when the front page of the Guardian was delivered to my home at 0100 BST on Saturday I assumed there had been a court hearing, and neither of the two people I managed to contact knew enough about the case to disabuse me.

The piece I filed for the BBC's morning radio news bulletins reflected my assumption that there had been a judge's ruling and that this was indeed a landmark case. In that respect my piece was wrong.

Nevertheless the case brings up three interesting questions.

  • What does it mean for the newspapers' voluntary watchdog, the Press Complaints Commission?

  • What does it mean for other celebrities who think their privacy has been invaded and want to go to court over the issue?

  • And will it make any difference to what the newspapers publish in future?

Sara Cox and her new husband, Jon Carter, were photographed naked on their honeymoon in a private island in the Seychelles in October 2001.

PPC credibility

The pictures were taken without their knowledge, while they were at their own villa, by a paparazzo photographer in another villa.

Critics of the PCC say it has been discredited as a watchdog

The week after publication The People apologised - part of a deal brokered by the Press Complaints Commission.

Nonetheless Cox and her husband went ahead and sued, under Article 8 of the Human Rights Act (which establishes a right to privacy) and the law of confidence.

After many months the newspaper has settled out of court, agreed to pay the couple's costs (something over 100,000) and destroyed the pictures.

Critics of the PCC say it has been discredited as a watchdog by Cox's decision to go to law even after the PCC had negotiated an apology.

In its defence the Commission says it was prevented from taking the case further and imposing possible sanctions on the paper precisely because Cox had started legal proceedings.

More regulation?

It can also argue that its procedures are free and that not everyone can afford to go to court.

But many of the celebrities for whom privacy is such an issue are quite able to afford a good lawyer.

The PCC's credibility takes a knock every time someone is seen to ignore it and resort to the law instead.

It is also facing publication shortly of a report into privacy and the press by the Commons select committee on culture, media and sport.

That may well be critical of the PCC and the system of self-regulation.

One report suggests the MPs want the press to come under the new communications regulator, Ofcom, or a new independent ombudsman.

No legal precedent

But whatever the committee may say, the chances of any government acting to impose regulation on the press are zero: it would risk antagonising the entire newspaper industry.

Amanda Holden was given 40,000 over topless photos
So what about other celebrities? Will they stand a better chance of persuading a court to recognise their right to privacy as a result of this case?

The answer is no, because out of court settlements establish no legal precedent. The law on privacy remains as confused today as it was before the Cox settlement.

Take for instance the Blackburn footballer Gary Flitcroft. A High Court judge issued an order protecting his privacy and preventing him from being named in a kiss and tell story - also in the People.

Law of confidence

But the paper successfully appealed. The Court of Appeal decided that as a public figure he was entitled to some privacy - but not that much.

Catherine Zeta-Jones and Michael Douglas won their case against Hello! magazine over unauthorised photographs of their wedding - but not because their privacy had been invaded
Or what about Naomi Campbell? She successfully sued the Mirror for picturing her emerging from a Narcotics Anonymous meeting.

She won on the grounds that whoever tipped the paper off about her treatment had owed the model a duty of confidence.

But that ruling was overturned by the appeal court, on the grounds that she had courted publicity and had lied by saying she did not take drugs. She is now appealing to the House of Lords.

Catherine Zeta-Jones and Michael Douglas won their case against Hello! magazine over unauthorised photographs of their wedding - but not because their privacy had been invaded.

The couple won because their 1m exclusive deal with rival magazine OK! meant pictures of their wedding were in effect a trade secret, and so protected under the law of confidence.

Privacy being established

The judge said it was not necessary for him to decide on whether such a thing as a right to privacy existed in English law.

But he warned that if Parliament did not act to establish such a law the judges might do it themselves.

In fact they seem to be doing that anyway by extending the law of confidence, just as Mr Justice Lindsay did.

Whether or not such a thing as a privacy law exists, both judges and newspapers sometimes behave as if it does

In the present opaque state of the law both sides, celebrities and the media, have some freedom to manoeuvre.

Sometimes newspapers settle without letting the case come to court, as the People did with Sara Cox and as the Daily Star did when it paid Amanda Holden 40,000 after publishing unauthorised topless photos.

Libel example

And that may offer a clue to the real impact these cases are having on the tabloids' behaviour.

The massive libel damages of the 1980s produced a greater reverence for facts... perhaps the threat of having to shell out to the likes of Sara Cox will do the same where privacy is concerned

Whether or not such a thing as a privacy law exists, both judges and newspapers sometimes behave as if it does.

The former does so by expanding the law of confidence - the latter by paying outraged celebrities to go away when it seems prudent.

Newspaper publishers do not like having to pay out large sums, whether for libel, breach of confidence or invasion of privacy.

The massive libel damages of the late 1980s and early 1990s produced a more cautious attitude, and greater reverence for facts, on the part of the tabloids.

Perhaps the threat of having to shell out to the likes of Sara Cox and Amanda Holden will do the same where privacy is concerned.


SEE ALSO:
Cox wins privacy case
07 Jun 03  |  UK
I'm staying, says Radio 1 DJ Cox
16 Jan 03  |  Entertainment
Complaint against DJ Cox fails
28 Nov 02  |  Entertainment


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