Table of Contents
Press Intrusion and Princess Diana
The UK Privacy Laws
Definition of Privacy
Why do we need Privacy ?
Protection of Privacy in the UK
Protection of Privacy in the USA
Before her death in September 1997, Lady Diana, Princess of Wales, following continuous media intrusion into her private life, confronted the British press in a vain plea for privacy for herself and her sons. Following the revelation of her friendship with Dodi Fayed, the son of the wealthy and controversial owner of Harrods, Mohammed Fayed, the press and photographers were anxious to photograph her on holiday in France with Dodi.
Exasperated at the attention bestowed on her family by journalists, she hopped from his yacht into a launch and made her way to a boat carrying reporters and photographers. Wearing a leopard-print swimsuit, she remonstrated for five minutes with representatives from the Daily Mail, the Mirror and the Sun, who had been training binoculars and camera lenses on her throughout her private holiday.
Eralier in April 1997, Lady Diana described an incident in which a passer-by forced a freelance cameraman into an armlock so that she could confiscate his film as a distressing intrusion into her private life. The incident was captured by another photographer, and displayed over three pages of the Sun newspaper. In response, the Princess issued a statement condemning the action of the photographer. The statement read:
|Once again the Princess of Wales has been harassed by a photographer. Once again this has become the subject of inaccurate press comment. The Princess hopes that the recently passed Protection from Harassment Act will give greater protection to people such as herself who are victims of this kind of distressing intrusion into their private lives.|
The incident was the latest in a series of disputes between the Princess and photographers. Many freelance paparazzi (professional photographers who specialise in taking photographs of famous people and selling them to the media) refused to heed her pleas for privacy, believing that she was a fair target. Apart from being a public figure - the mother of the next King - she was known to have meetings with favoured journalists, leaving her open to accusations of manipulating the media for her own purposes and only copmplaining about publicity when it was not controlled be her.
Following her divorce from the Prince of Wales, the Princess appealed to the media several times to leave both them and their children alone so that they might get on with their lives. In July 1996, Princess Diana complained to the Press Complaints Commission about 'intrusive' pictures of her on holiday in France which were published in the Daily Mirror. Princess Diana also obtained an injunction against a press photographer, who has allegedly been harassing her for a long time in August 1996. The injunction prevented him from coming within 300 metres of her. The man, named in the writ as Martin Stenning, was the photographer involved in an incident earlier in 1996 in which the Princess jumped out of her car and took his motor cycle ignition key to prevent him from following her.
The writ appeared to treat the freelance press photographer like a stalker. He was prevented from communicating or attempting to communicate, molesting, assaulting and harassing her or otherwise interfering with her safety.
Anthony Julius, the Princesss lawyer, stated that:
My client has been compelled as a last resort to take legal action. She hopes that, as well as alleviating her own distress, this will highlight the destructive effect of persistent harassment on women's lives.
Yet the death of the Princess Diana was the subject of more newspaper coverage than the most dramatic events of the Second World War and set a media record, according to Durrants Press Cuttings agency which monitors nearly 200,000 newspapers and magazines a year. No other subject in the agencys archives, which go back to 1880, compared with the coverage devoted to Dianas death, funeral and subsequent stories. In death, there was even more press interest than during her life.
Princess Diana's tragic death in a car crash in Paris (Dodi was also killed, as was the driver, an employee of Mr Fayed) and the presence of paparazzis at the crash scene raised concerns about privacy laws and press freedom in Britain. During her funeral service in Westminster Abbey, Earl Spencer, her brother stated that Princess Diana talked to him endlessly of getting away from England, mainly because of the treatment that she received at the hands of the newspapers.
|Lord Spencer also stated that:
I would rather cherish the days I spent with her in March when she came to visit me and my children in our home in South Africa. I am proud of the fact apart from when she was on display meeting President Mandela we managed to contrive to stop the ever-present paparazzi from getting a single picture of her - that meant a lot to her.
My own and only explanation is that genuine goodness is threatening to those at the opposite end of the moral spectrum. It is a point to remember that of all the ironies about Diana, perhaps the greatest was this - a girl given the name of the ancient goddess of hunting was, in the end, the most hunted person of the modern age. She would want us today to pledge ourselves to protecting her beloved boys William and Harry from a similar fate and I do this here Diana on your behalf. We will not allow them to suffer the anguish that used regularly to drive you to tearful despair.
The following sections will examine the UK Privacy laws and the new proposals for press reform and the criticism press laws received following Princess Diana's death.
The earliest and simplest definition of privacy came from Judge Cooley. He defined privacy as "the right to be left alone". This was only a negative claim. During the century different definitions moved from a negative claim towards a more positive right, a right to control the information about ourselves, be able to communicate the information or to keep it for ourselves.
The Younger Committee (an official inquiry into privacy which reported in 1972: Report of the Committee on Privacy, Cmnd. 5012, HMSO,1972) decided that the word privacy could not be defined satisfactorily. The Calcutt Committee (an inquiry specifically into press behaviour in respect of personal privacy: Report of the Committee on Privacy and Related Matters, Cm. 1102, HMSO, 1990) said in 1990 that "nowhere have we found a wholly satisfactory statutory definiton of privacy". But they were satisfied that it would be possible to define it legally and adopted this approach in their first report on privacy:
"The right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information."
There was also a follow-up Calcutt (no.2) report which called for immediate legislation on the subject: Cm. 2135, HMSO,1993). The latest official attempt to define privacy came from the UK Government's Response to the National Heritage Select Committee (Government Response to the National Heritage Select Committee, Privacy and Media Intrusion, Cmnd. 2918, HMSO, 1995)
"Every individual has a right to privacy comprising:
(a) a right to be free from harassment and molestation; and
(b) a right to privacy of personal information, communications, and documents."
This report followed an earlier paper from the Lord Chancellor's Department (Infringement of Privacy) in 1993 which had boldly criticised English law as not adequately protecting privacy and calling for the infringement of privacy in any way which caused "substantial distress" to be a tort (a civil wrong) which the courts could take action to prevent. However, in the 1995 paper, the last official statement on the issue, the Government by then concluded that a general right to privacy of this kind should be rejected:
Privacy is an interest linked to the development and enjoyment of the human personality. It protects the inviolate personality, the individuals independence, dignity and integrity. According to Ruth Gavison there are three elements in privacy: secrecy, anonymity and solitude. It is a state which can be lost, whether through the choice of the person in that state or through the action of another person.
Everyone needs some privacy, for their physical, mental, emotional and spiritual well being. Although it has not been a fundamental and enforced right in English law, the need for some sort of individual privacy has been often recognised.
The Younger Committee in 1970 stated that:
"privacy is a basic need, essential to the development and maintenance both of a free society and of a mature and stable individual personality."
But the Younger Committee thought that a general right of privacy would create uncertainty. Instead of creating a general right, they took the view that:
"[the] best way to ensure regard for privacy is to provide specific and effective sanctions against clearly defined activities which unreasonably frustrate the individual in his search for privacy."
The principal areas of complaint with regard to intrusions into privacy were identified by the Younger Committee as:
(a) unwanted publicity - by the press and broadcasting
(b) misuse of personal information - By e.g. banks, employers, educational institutions (student records), credit rating agencies
(c) intrusions on home life - E.g. neighbours, landlords, press.
(d) intrusion in business life - E.g. industrial espionage including trade secrets
To these listed may also be added in the public sector such matters as:
(a) intrusion in the course of the administration of the criminal law
(b) the misuse of information held by public authorities
Let us start with the fundamental question: "is privacy as a human value worth protecting within the UK legal system?". Sir Robert Megarry held with regard to the interference with privacy in the Malone case that:
"English law did not entertain actions for interference with privacy unless the interference amounted to one of the established causes of action in tort or equity."
See Malone v. Metropolitan Police Commissioner (No.2)  2 All ER 620
He accepted that his decision was inconsistent with Article 8(1) of the European Convention on Human Rights, but the fact that the Convention is not directly enforceable in England justified his decision. Megarry took the view that anyone is entitled to do anything which is not prohibited by law.
Lord Justice Glidewell in another famous case, Kaye v. Robertson ( FSR 62)stated that:
"It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a persons privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals......"
Gordon Kaye, a well-known television actor, was seriously injured and was in hospital. Two journalists took his picture ignoring a notice of prohibiting entry. The picture was later published in their newspaper. The Court of Appeal held that the only cause of action available to him was malicious falsehood (the implication that he agreed to the pictures being taken and therefore that he would go to any lengths to obtain publicity for himself) admitting that English Law recognised no right of privacy. The judge urged legislative action to be taken.
Privacy is not a legal concept directly recognised, so there is no legal definition for privacy in the English legal system. But the old case of Prince Albert v. Strange, which was the inspiration of developments in American law on privacy (See D Warren and L D Brandeis, "The Right to Privacy" (1890) Harv L Rev 193), did recognise the right to an "inviolate personality" in the context of the plaintiffs right of property. The case arose when Prince Albert, husband of Queen Victoria, wanted the courts to stop his private paintings being exploited for commercial purposes
The Vice-Chancellor in the Prince Albert v. Strange declared that:
"Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known."
Despite the general rejection both by Parliament and by the courts of a general right to privacy, there has been some important legislation which protects privacy in specific respects. Much of this has followed the Younger Committees advice on these areas. Examples of specific protections for privacy which have been provided by Parliament over the years include:
Britains first law protecting personal privacy on a more general basis was announced as part of Queens Speech on the 14th of May 1997. It is a part of the new Labour Government policy Bringing Rights Home to Britain, and the new privacy legislation will arise through legislation which incorporates the European Convention on Human Rights into UK law. If it is incorporated, it would mean that a right to respect for a private life will be part of the British law for the first time. However, much of the development will be left to the discretion of judges, and it is not clear how quickly or how far the judges will move the law in the direction of the protection of privacy. One concern which might give them pause for thought is that individual privacy cannot be considered in isolation. Privacy must be weighed alongside freedom of speech and expression, which is also an important right under the European Convention.
Protection of Privacy in the USA
Privacy has not been so elusive in the legal traditions of other countries. Privacy as a fundamental human right has been affirmed by the US Supreme Court, the constitutions and laws of many countries, the European Convention on Human Rights, and the United Nations Universal Declaration of Human Rights. Privacy is not an explicit right under the Constitution of the USA. The Fourth Amendment guarantees:
"the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."
The US Supreme Court implied a right to privacy and this also effected the state laws by virtue of the Fourteenth Amendment. Cases decided by the US Supreme Court such as Griswold v. Connecticut (1965) 381 U.S. 479 and Roe v. Wade (1973) 410 U.S. 113 show that privacy has been given constitutional status when the freedom of speech and the First Amendment is not in issue. This has been called a "penumbra right" of the Constitution.
Justice Harlan clarified the expectation of privacy in a two stage test in Katz v. United States 389 U.S. 347 (1967) which requires:
"[F]irst that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation to be one that society is prepared to recognise as reasonable"
The ideas of Warren and Brandeis, two leading American academics and judges from the early part of this century, are the main starting point for the privacy arguments in the US. According to their thesis:
"The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasion upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury."
Fifteen years after the publication of their paper, following a decision of the Supreme Court of Georgia most of the US states incorporated "the right to privacy" in their legislation. It is important to note that Warren and Brandeis based their thesis on the English cases but no similar development has occured in England. So, can we learn anything from the American developments? Here are some leading cases to give you a flavour of how the law has developed in the USA. In most respects, the differences from English law are not dramatic and the main reason for this is perhaps that, whilst recognising privacy as a value, the US courts have tended to recognise press freedom as an even greater value.
Example 1: In the US Supreme Court case of Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974), a mother and her son (plaintiffs), brought an action against respondents, a newspaper publisher and a reporter, for invasion of privacy based on a feature story in the newspaper discussing the impact upon the plaintiffs' family of the death of the father in a bridge collapse. The story concededly contained a number of inaccuracies and false statements about the family. The District Judge struck out the claims for punitive damages for lack of evidence of malice "within the legal definition of that term," but allowed the case to go to the jury on the "false light" theory of invasion of privacy, after instructing the jurors that liability could be imposed only if they found that the false statements were published with knowledge of their falsity or in reckless disregard of the truth, and the jury returned a verdict for compensatory damages.
The Court of Appeals reversed, holding that the District Judge should have directed a verdict for respondents, since his finding of no malice in striking the punitive damages claims was based on the definition of "actual malice" established in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and thus was a determination that there was no evidence of the knowing falsity or reckless disregard of the truth required for liability.
The US Supreme Court held that the Court of Appeals erred in setting aside the jury's verdict.
Example 2: In Time, Inc. v. Hill, 385 U.S. 374, the Supreme Court considered a similar false-light, invasion-of-privacy action.
The Appellee, Hill, and his family in 1952 were held hostage in their home by some escaped convicts and were ultimately released unharmed without any violence having occurred. They later moved away and appellee discouraged further publicity efforts about the incident, which had caused extensive involuntary notoriety. A novel about a hostage incident but depicting considerable violence later appeared, and was subsequently made into a play, these portrayals having been shaped by several incidents. Appellant's magazine, Life, published an account of the play, relating it to the Hill incident, describing the play as a re-enactment, and using as illustrations photographs of scenes staged in the former Hill home. Alleging that the Life article gave the knowingly false impression that the play depicted the Hill incident, appellee sued for damages under a New York statute providing a cause of action to a person whose name or picture is used by another without consent for purposes of trade or advertising. Appellant maintained that the article concerned a subject of general interest and was published in good faith.
The trial court instructed the jury that liability under the statute depended upon a finding that the Life article was published, not to disseminate news, but as a fictionalized version of the Hill incident and for the purpose of advertising the play or increasing the magazine's circulation. The court also instructed the jury that punitive damages were justified if the jury found that the appellant falsely connected Hill with the play knowingly or through failure to make a reasonable investigation and that personal malice need not be found if there was reckless or wanton disregard of Hill's rights. The jury awarded compensatory and punitive damages.
The New York Court of Appeals had interpreted New York Civil Rights Law 50-51 to give a "newsworthy person" a right of action when his or her name, picture or portrait was the subject of a "fictitious" report or article. Material and substantial falsification was the test for recovery. Under this doctrine the New York courts awarded the plaintiff James Hill compensatory damages based on his complaint that Life Magazine had falsely reported that a new Broadway play portrayed the Hill family's experience in being held hostage by three escaped convicts. This Court, guided by its decision in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which recognized constitutional limits on a State's power to award damages for libel in actions brought by public officials, held that the constitutional protections for speech and press precluded the application of the New York statute to allow recovery for "false reports of matters of public interest in the absence of proof that the defendant published the report with knowledge of its falsity or in reckless disregard of the truth." Although the jury could have reasonably concluded from the evidence in the Hill case that Life had engaged in knowing falsehood or had recklessly disregarded the truth in stating in the article that "the story re-enacted" the Hill family's experience, the Court concluded that the trial judge's instructions had not confined the jury to such a finding as a predicate for liability as required by the Constitution.
Though liability was sustained on appeal, the Appellate Division ordered a new trial as to damages, at which only compensatory damages were awarded, and the Court of Appeals affirmed. The New York courts have limited the reach of the statute as applied to reports of newsworthy persons or events, and have made it clear since reargument here that truth is a complete defense. However, the New York courts allow recovery under the statute when such reports are "fictitious," Held by the US Supreme Court:
(a) Erroneous statements about a matter of public interest, like the opening of a new play linked to an actual incident, which was the subject of the Life article, are inevitable and if innocent or merely negligent must be protected if "freedoms of expression are to have the `breathing space' that they `need to survive . . . .'"
(b) But constitutional guarantees of free expression can tolerate sanctions against calculated falsehood without impairment of their essential function. P. 389.
Example 3: The District Judge in Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974), in contrast to the trial judge in Time, Inc. v. Hill, 385 U.S. 374 (1967), did instruct the jury that liability could be imposed only if it concluded that the false statements in the Sunday Magazine feature article on the Cantrells had been made with knowledge of their falsity or in reckless disregard of the truth. No objection was made by any of the parties to this knowing-or-reckless-falsehood instruction. Consequently, this case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard announced in Time, Inc. v. Hill applies to all false-light cases. Rather, the sole question that we need decide is whether the Court of Appeals erred in setting aside the jury's verdict.
Example 4: U.S. Supreme Court case of Cox Broadcasting Corp. v Cohn, 420 U.S. 469 (1975)
(a) The commission of a crime, prosecutions resulting therefrom, and judicial proceedings arising from the prosecutions are events of legitimate concern to the public and consequently fall within the press' responsibility to report the operations of government.
b) The interests of privacy fade when the information involved already appears on public record, especially when viewed in terms of the First and Fourteenth Amendments and in light of the public interest in a vigorous press.
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Last Updated 30 October 1997