Privacy vs free speech: two competing rights?

Part Two of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

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• The Human Rights Act (1998) views privacy and free speech as two competing rights, which need ‘balancing’ against each other.
• Judges become the arbiters of what speech is permissible, and what is not.
• A confessional culture within the media raises questions about journalistic standards.
• These questions are best resolved through editorial judgements, not regulation or censorship.

‘Balancing’ free speech against privacy

Free speech in the UK today is said to need ‘balancing’ with a right to privacy in law. The new approach to both free speech and privacy places these ‘rights’ in competition with each other. This can only have negative consequences.

Under the new Human Rights Act (1998) (HRA), judges are already deciding how a right to privacy (Article 8) will impact on the right to freedom of expression (Article 10).

Article 8, the Right to Respect for Private and Family Life, states that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’

Article 10, the Right to Freedom of Expression, states that: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’

It was by balancing Article 10 against Article 8 that appeal court judges, in the case of Michael Douglas, Catherine Zeta Jones and OK! magazine against Hello! magazine, following the publication of unofficial photographs of the couple’s wedding, ruled on 21 December 2001 that the couple have a ‘powerful prima facie claim to redress for invasion of their privacy’ – although an injunction to stop publication was overruled. The case is due to be heard in January 2003. (1)

Public figures are increasingly bringing cases, or making complaints to regulatory bodies, based on the argument that the media has invaded their privacy. In recent years such cases include:

• Prime Minister Tony Blair, who complained about the press photographing his young children;
• Prince Charles, for coverage of a sports injury suffered by Prince Harry;
• Bob Crow, general secretary of the Rail, Maritime and Transport Union (RMT) for journalists hanging around his home;
• Supermodel Naomi Campbell, for the publicising of her visit to a drug rehabilitation clinic;
• TV presenter Vanessa Feltz, for coverage of her private life;
• TV presenter Angus Deayton, for stories about his sex life;
• TV presenter Jamie Theakston, following his visit to a brothel;
• Radio 1 DJ Sara Cox, for photographs taken of her naked;
• TV newsreader Anna Ford, for photographs of her in a bikini; and
• Premiership Footballer Garry Flitcroft, for revelations about his sex life.

It is not only public figures who complain about privacy invasion by the press. People who are not normally in the public eye have told journalists to ‘get lost’ after intrusions from a ‘media scrum’ in the aftermath of tragedies.

In May 2002, one man won his complaint to the Press Complaints Commission (PCC) – the organisation funded by the press industry that oversees standards in the press – for invasion of privacy, after a local newspaper photographer photographed him in a restaurant without his consent. (2)

Geoff Peck, a man from Essex who was filmed by the local council’s CCTV cameras as he attempted suicide, has submitted his case against the council and the media organisations that broadcast the footage to the European Court of Human Rights (3). Peck’s solicitor wrote in a national newspaper that ‘it is welcome that the extent of personal privacy is being tested here not by a celebrity but by “the man in the street”’ (4).

In a landmark case in August 2001, Esther Thomas, a former civilian clerk with the City of London police, used the UK stalking law to claim damages against the Sun newspaper. After the Sun ran stories blaming Thomas for disciplinary action against two police officers, Thomas received hate mail and had to leave her job. She sued the Sun under the Protection from Harassment Act (1997), arguing that she had suffered distress. (5)

What public figures and members of the public have in common, however, is that they often claim that an invasion of privacy by words or images caused them some kind of emotional damage. Victims have said they felt harmed, distressed, offended or even raped by media coverage.

These developments are qualifying a right to free speech by limiting its remit. People are told they are vulnerable and in need of extra protection from privacy invasion and emotional harm caused by words and images. What journalists, filmmakers and photographers say, write, broadcast or photograph is taken to be as intrusive into people’s private lives as somebody bursting into their bedroom.

The contemporary conception of privacy is also problematic. Privacy, as it is traditionally understood, means freedom from intrusion by the state into one’s private life. But over the past few decades, the struggle to define privacy has become more confused. When the Younger Committee on Privacy, one of the foremost parliamentary committees charged with discussing privacy and the press, was set up in 1972, it concluded that privacy was too fluid a concept to define as a general right of privacy. (6) Today, the concept of privacy has arguably become even more fluid, and harder to define.

The current debates about privacy and the media raise a series of questions. Is it possible to judge whether what you write or say will cause emotional harm? How do you define what people cannot talk or write about, film or photograph, as a private affair?

An individual’s private life can be of no public interest in one situation and of immense public interest in another. For example, should the public know if the baby son of the prime minister has had the triple mumps, measles and rubella (MMR) jab during a time of great public controversy surrounding the vaccination? (7) Should the media be content to accept royal consent when publishing images of the private life of Prince William – as they were when photographers and camera crews were invited to publicise certain aspects of Prince William’s gap year in Chile in 2000/2001 (8) – or should they organise their own independent coverage? OK! magazine did the latter, only to find itself censured by the Press Complaints Commission (9).

The issue is further complicated by the fact that plenty of people voluntarily invite the media to invade their privacy. Celebrities willingly give interviews in which they confess their drink binges (Caroline Aherne), drug habits (Robbie Williams), emotional problems (Kate Moss), eating disorders (Geri Halliwell), relationship problems (Ulrika Jonsson), and abortions (Nicole Appleton).

Edwina Currie, the former Tory junior minister for health, reveals details of her four-year extramarital affair with John Major before he became prime minister. Tony Booth, the father-in-law of current prime minister Tony Blair, writes a book revealing private moments he shared with his daughter and son-in-law . Thousands send showreels to Channel 4’s Big Brother series, and celebrities appear on programmes such as ITV1’s I’m a celebrity! Get me Out of Here!, happy for their everyday lives to be under 24-hour surveillance. Celebrities such as Hollywood star George Clooney complain about video stalkers and the paparazzi engaging in a ‘malicious free-for-all’ to report their private lives (10), but reveal details about their private life in magazine interviews (11).

Objections are not made to privacy intrusion per se. Rather, it seems that claiming ‘privacy intrusion’ is one of the most effective ways for certain individuals to control unwanted publicity and stop investigations into their lives. This raises the question, what if somebody’s private life is worth investigating and discussing, precisely because it is the kind of information he or she does not want to be publicly broadcast?

The Human Rights Act (HRA) is said to offer a new solution to such dilemmas. Judges have been given powers to develop the meaning of free speech and privacy rights, introducing considerations of privacy (however they wish to define it) in free speech cases.

But should free expression be treated on a par with privacy in the first place? After all, nobody is arguing for journalists’ ability to enter people’s bedrooms physically, but simply their ability to use words and images. Plenty of laws exist restricting physical invasions of privacy – for example, laws against breaking and entering. There are already over 50 pieces of legislation that can be used to gag people, relating to issues such as confidentiality, reputation or national security (12). Is another law really necessary?
Judges as arbiters

Judges and policymakers constantly deny they are trying to curb the right to free speech. In 2002, after years of concern within the media industry about whether the Human Rights Act – in particular, Article 8 on the right to privacy – would be used to censor free speech, Lord Mostyn, the Leader of the House of Lords and a former senior judge, spoke out. ‘If you look at decisions now, you will find that Article 10 [the clause of the act that focuses on freedom of speech] is firmly in the forefront of judicial thinking,’ he said (13).

Free speech may well be in the minds of judges – and indeed, many judges in media cases stress its importance. For example, Lord Nicholls of Birkenhead (Reynolds v Times Newspapers Limited, 1999) (14), Lord Steyn (McCartan Turkington Breen v Times (2000) (15) and Lord Justices Laws and Simon Brown (R (Pro Life Alliance) v BBC, 2002) (16) have all made reference to the importance of free speech. As the British judge Lord Steyn put it:

‘Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market”: Abrams v. United States (1919) 250 US 616, 630. per Holmes J. (dissenting).

‘Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.’ (17)

In 1997 Lord Irvine, the Lord Chancellor, said that freedom of the press ‘will be in safe hands with our British judges’, adding that ‘any law of privacy will be a better law after incorporation’ (18). A year later, when then Home Secretary Jack Straw was arguing for the incorporation of the European Convention on Human Rights into domestic law (the Act received Royal Assent in 1998, and came fully into effect in 2000), he also voiced his support for free speech, saying: ‘There was concern in some sections of the press that the Bill might undermine press freedom and result in a privacy law by the back door. That was not the Government’s view. On the contrary, we have always believed that the Bill would strengthen rather than weaken the freedom of the press.’ (19)

However, the more Lords, judges and MPs try to assert their free speech credentials, the more hollow their pronouncements sound. As is shown both by the way the UK’s HRA has been written, and by the results of recent cases, free speech is being censored in the name of privacy.

In fact, this is not privacy legislation by the ‘back door’, but by the ‘front door’. The Human Rights Act is intended to, and in practice is used to, ‘balance’ competing rights with each other – and the outcome of this balancing is that free speech is qualified and restricted.

The Human Rights Act (1998) in practice

Under the Human Rights Act, the right to freedom of expression (Article 10) is considered important, but it is not an absolute right. Article 10 can be curtailed in the interests of ‘national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’

The Human Rights Act replicates Article 10 with its restrictions on the right of free speech. But it also provides in section 12 that, ‘The court must have particular regard to the importance of the Convention right to freedom of expression’ and ‘to any privacy code’ (such as the PCC’s Code of Practice for the press) – additions that were made after consultation with media organisations.

Yet today the courts are developing the UK human rights law on free speech in relation to a right to privacy. As a consequence, the modern parameters of these rights are decided in an arbitrary manner.

For example, in 2002, the results of two legal cases revealed the dangers of trying to ‘balance’ a right to privacy with a right to free speech in the courtroom.

In the case of A v B & C, a Premiership footballer brought a case against The People newspaper (previously The Sunday People) to stop the publication of details about his extramarital affairs. The Court of Appeal found in favour of free speech (20). On 11 March 2002, the Lord Chief Justice Lord Woolf, argued that the courts should not ‘act as censors or arbiters of taste’, enabling The People to publish details of the footballer’s affairs with a lap dancer and a nursery nurse (21).

Although the outcome of the A v B & C case was proclaimed a victory for free speech, it had some negative implications. The key implication was the implicit recognition by the courts that a legal right of privacy could override free speech. The court held that ‘where an individual is a public figure, he is entitled to have his privacy respected in the appropriate circumstances’. And a claim may now succeed where the recipient of information ‘either knows or ought to know that the giver can reasonably expect his privacy to be protected’ (22).

Lord Woolf added, ‘Where the protection of privacy is justified…an action for breach of confidence now will, where this is appropriate, provide the necessary protection’ (23). As barrister Jon Holbrook wrote in The Times (London), this means that ‘the law of confidence was expanded so as to become a law of privacy in everything but name’ (24).

In the case of Naomi Campbell v Mirror Group Newspapers, the supermodel brought a case against the Mirror newspaper after the publication of a story, and an accompanying photo, concerning Campbell’s attendance at a Narcotics Anonymous drug rehabilitation clinic (25).

Campbell won £3500 damages against the Mirror on 27 March 2002. The newspaper had relied on a source whose identity was unknown to journalists, but whom the court concluded must have been a fellow attendee of Narcotics Anonymous, or a member of Campbell’s staff or entourage. This meant that the source and the newspaper had broken a duty of confidentiality, not by publishing the fact of her drug therapy, but the details (26).

Even though Campbell’s claim was not for a breach of privacy, the court ruled that her privacy was protected under the law of confidence, taking into account of the right to privacy under the HRA. In addition, the court ruled that the newspaper had broken the Data Protection Act 1998. It had collected ‘personal data’ on Campbell after a concealed photographer took surreptitious photographs of her (27).

Although the damages awarded against the Mirror were small, and it was shown that the newspaper had corrected lies Campbell had told about her drug addiction, the ruling established that:

a) a right to privacy within the law of confidence can be used to stop the publication of some details about a person’s private life if they originate from somebody in a confidential relationship with them;

b) surreptitious photography in a public street can be against the law.

However, the Mirror appealed and won its case at the Court of Appeal on 14 October 2002. The Appeal Court judges concluded that it was right for the Mirror to use the contested material to show that Campbell had lied about her use of drugs. Lord Phillips, Master of the Rolls, said that Campbell had courted publicity and had gone out of her way to tell the media that, in contrast to other models, she did not take drugs, stimulants or tranquillisers (28).

For anyone concerned about free speech, the Campbell case shows that judges have differing views about what counts as speech that is in the public interest. This means that whether judges will allow publication or not is always a grey area, subject to their own views.

These two cases followed 18 months of media and legal wrangling after the HRA came fully into force in October 2000. Immediately after the Act’s introduction, the media adopted a wait-and-see approach to judicial interpretations of these ‘conflicting’ rights. But many journalists have found the outcomes of these recent court rulings perplexing, claiming that they have created more anxiety about legal restrictions on free speech.

As Marcel Berlins, commentator on legal issues for the Guardian and Radio Four’s Law In Action wrote after the Appeal Court’s judgement in the case of Michael Douglas, Catherine Zeta Jones and OK! v Hello!: ‘It is impossible to predict how effective the privacy law will be in shielding celebrities or other newsworthy people from media attention and exposure…How it will work in practice is in the uncertain and unpredictable laps of the judges.’ (29)

The above cases aside, there have so far been few people willing to take a media organisation to court for privacy invasion. While part of this may be explained by the costs involved, it cannot be the only reason. Despite all the claims made by lawyers and policymakers on behalf of other people, about their need for privacy protection from the media, only 12 percent of complaints made to the PCC in the year 2001 were related to privacy (as defined under Clause 3 of the Code of Practice on privacy). In the past five years, the number of complaints about privacy to the PCC have remained the same, at about 350 a year (30).

Voluntary press codes

In 2001, a Broadcasting Standards Commission (BSC) survey of attitudes found that, while two thirds of people thought there to be too much intrusion into privacy on the part of television, they did not feel that it caused great personal offence (31). When the respondents were asked to say spontaneously what was an issue of concern about television, privacy intrusion did not rank as an issue (32).

Another reason for the relatively low levels of complaint about privacy intrusion may be that there is less to complain about. The gradual retreat of the media industry in the face of threats of a privacy law may have had an effect on coverage of privacy-related matters. In 1990, David Calcutt QC’s report on privacy, ‘Report of the Committee on Privacy and Related Matters’, said that the press should be given a ‘last chance’. (Then heritage minister David Mellor famously commented that the press were ‘drinking in the last chance saloon’.) The press was told to strengthen its own codes of conduct, or risk a privacy law. It responded by setting up the Press Complaints Commission and a code of practice to oversee press standards in 1991.

In 1993, the UK government asked the press to appoint a special press ombudsmen to oversee complaints. The press responded by creating the first post for a Privacy Commissioner to act specifically about privacy complaints on behalf of the public. In 1998, following calls by public figures for tougher measures against the media, which were precipitated by the coverage of Princess Diana’s life, the PCC drew up additional codes of practice on harassment and privacy.

Some media reformers view codes of conduct regulated by the media industry as a preferable measure to legal curbs. According to Toby Mendel, head of the Law Programme at Article 19, a global campaign for freedom of expression: ‘Self-regulatory or professional mechanisms provide the primary remedy for an invasion of one’s privacy in the media. I submit that these remedies are largely, albeit not entirely, effective in preventing the worst abuses by the media without unduly restricting freedom of expression, and that they should, therefore, be promoted…

‘Given the signal failure of strong criminal and civil privacy laws in France to protect Diana, Princess of Wales, one cannot help wondering whether ethical self-regulation is not a more appropriate way of addressing these [privacy] concerns.’ (33)

Although the idea of developing a voluntary code of press standards is in itself no bad thing, the press appears far too willing to yield to political pressure on these issues, rather than to act independently of them. There has been a creeping editorial shutdown on the reporting of the private life of public figures, such as members of the Royal Family. For instance, in September 2001, journalists kept away from Prince William after an official photo-call at St. Andrews University, following an unwritten agreement with Buckingham Palace. (Only television researchers from a production company owned by the prince’s uncle ignored this agreement) (34).

Some royal reporters are unsettled about the implications of such an agreement. Jane Kerr, royal reporter for the Mirror, explains that: ‘Codes of conduct on privacy, intrusion and harassment have influenced my work quite substantially. After the death of the Princess of Wales, the rules surrounding the privacy and protection of Prince William and Prince Harry during their school years were tightened. There was obviously an official code of practice drawn up by the PCC and we were aware of the limitations about reporting on the boys, but on a day-to-day basis what could and could not be reported was worked out through informal discussion with St James’ Palace.’

However, Kerr added: ‘There were not enough photo-calls in return for the number of stories that we’ve kept quiet about.’ (35)

The issue of privacy and press freedom in recent years has been further complicated by the development of another trend – namely, the obsession in public debate and cultural life with people’s personal life. Many of those committed to the importance of free speech are fundamentally uninterested in reading about the private lives of footballers. Does the fact that sales of celebrity magazines have risen mean that the drug-taking pursuits of supermodels should be elevated to the status of serious news?

Labour MP Clive Soley summed up the disquiet that many now feel with the personally focused content of much news. ‘In terms of media intrusiveness there is too much intrusiveness about sex and not enough on serious corruption,’ he said. ‘And, who investigates the press?’ (36)

Although there is clearly support within the media industry for free speech, there is also embarrassment that the kinds of stories often defended against charges of privacy intrusion are not particularly interesting or important. There is also concern that such reportage reflects an ‘ethics-free zone’ (37).

Following Diana’s death in 1997, photographers and TV cameramen were described as ‘stalkarazzis’, ‘scum’ and even ‘murderers’. At Diana’s funeral, Earl Spencer described his sister as ‘hunted’ – a reference to the clamour by the media for information and photographs relating to her private life. In 2002, Eurobarometer, the polling arm of the European Commission, found that British people trusted their national newspapers less than people in other EU member states – only 20 percent of Britons surveyed trusted the British press, compared to a EU average of 46 percent who trusted their national newspapers (38).

What lies behind the current debate about journalistic standards is a concern about the demise of public confidence in journalists, and the ethical role of the media. Is the journalist’s job to report the news as he sees it – or should journalists be more conscious of broader social duties and responsibilities?

Ethics and standards in journalism

The discussion of ethics and standards provokes divided opinions within the media – particularly, between broadcast and print, and between tabloid and broadsheet. Clive Jones, chief executive of Carlton Channels, argues that ‘New privacy legislation doesn’t really impact a great deal on television because it is already highly regulated and subject to self-regulatory privacy codes’ – codes which he describes as ‘much more stringent’ than the proposed legislation. But, he says, ‘I continue to be concerned particularly with the red top newspaper end of the business. They are currently observing the media codes in a fairly nodding way and not observing them to the full’ (39).

‘Decent papers, honest journalists are put in the uncomfortable position of defending organisations which are often ethically, completely indefensible,’ says Alex Renton, former chief feature writer and foreign reporter for the London Evening Standard. ‘But we have to speak up to protect them for the greater good of the trade – to protect freedom of the media, to stave off legislation. We decent journalists are harming ourselves and the trade by sticking up for what is an inherently corrupt system. ’ (40)

It seems that many journalists agree with Lord Mostyn’s comments, made in the House of Lords in early April 2002: ‘The press is sometimes its own worst enemy with its over-concentration on trivia.’ (41)

Where free speech issues are concerned, who should decide what counts as ‘decent’ reportage or ‘trivia’? Neil Wallis, editor of The People, has argued that: ‘People like me, an editor of a national tabloid newspaper, don’t often come to public events discussing privacy and the press. We are frankly on a hiding to nothing. The entire debate hinges effectively on a pejorative perception – justified or not – of newspapers like mine of newspapers like mine by people like you.’

Wallis goes on to draw the connection between defending the publication of trivia and allowing for the possibility of serious news. ‘Take away the right to investigate the drug habits of a children’s TV presenter or the sex antics of an apparently upstanding and happily married police chief, role models all in their public personas, and you also take away the right to investigate Aitken, Archer, Hamilton and the rest,’ he says – in reference to recent stories of public figures’ corruption.

The law courts, argues Wallis, cannot be trusted to rule in favour of free speech: because ‘the judiciary in this country is overwhelming elderly, upper class, public school educated, male – members of a self-perpetuating establishment that has demonstrated no sympathy whatsoever to the causes of press freedom in this country’ (42).

Bob Satchwell, executive director of the Society of Editors, claims that the spectre of a privacy law would stifle the diversity of speech. ‘If the papers were emasculated by a privacy law, they would become bland and boring,’ he says. ‘We would finish up with a less diverse press, not a better one…By attacking the tabloids you’re not bruising Rupert Murdoch’s or Piers Morgan’s egos. You are patronising the millions of people who read the papers every day.’ (43)

And Ray Bellisario, a photo-journalist and video documentary-maker who worked for 18 years as a royal specialist, makes the point that ‘from personal experience ‘privacy’ and ‘intrusion’ are much over-used terms. What should be worthy principles in ethical journalism are often side-issued by scarcely veiled barriers to prevent real investigative reporting – invariably benefiting the wealthy and the powerful section of society. In these circumstances, a true description of “codes of conduct on privacy and intrusion” is censorship.’ (44)

Even when journalists rely on voluntary media industry codes of practice, disagreements about whose standards should be enforced and criticisms of the adjudication process have ensued.

In 2002, a series of events to do with the privacy of public figures’ children and what appeared to be contradictory PCC rulings led to a row between newspaper editors about press self-regulation. On 13 January 2002, the News of the World printed details about Prince Harry’s drug-taking. On 28 January the Daily Telegraph and the Daily Mail were censured by the PCC for publishing the fact that Tony Blair’s son Euan had applied for a place at Oxford Univerity. Charles Moore asked the PCC to clarify its position on the privacy of public figures’ children.

The next day, an article by a journalist in the Telegraph reported that at the time of the News of the World’s revelations, ‘strangely, the PCC declared, immediately after publication, it was all in order, almost as if the acres of breathless coverage were in the best traditions of investigative journalism. “St James Palace rightly recognised that there were important matters of public interest involved here”, said Mr Black. “There was no issue to be raised in respect of privacy.”’ (45) Guy Black is director of the PCC.

Charles Moore, editor of the Daily Telegraph, accused the PCC of being a ‘stitch-up’ service for royals and politicians. Simon Kelner, editor of the Independent, commented that ‘we need to get away from the idea that the PCC cosies up to the rich and powerful’. And Alan Rusbridger, editor of the Guardian, said at the time that ‘there is clearly a perception that it is not a completely effective and robust regulator’ (46).

Whatever the views of the media industry, judges, lawyers and media regulators continue to support the further regulation of free speech. The Human Rights Act is written so that judges have to ensure that all ‘public authorities’ comply with Article 8 on privacy. To date the media has not been considered a ‘public authority’, and Guy Black has argued that his organisation, the PCC, should not count as one either.

Yet Rabinder Singh QC, a barrister at Matrix Chambers, wrote recently that media companies may not be public authorities, ‘but this does not mean that there should not be a right to privacy against them. There are indications from the courts that they will be prepared to develop a common law right to privacy against private bodies like newspaper companies but the trend is not all one way’ (47).

The fact that public debate is increasingly concentrated on people’s private lives is undoubtedly problematic. The rise of personally orientated and confessional styles of journalism undermines broad-ranging news and debate – the foundation of a progressive, open democratic culture. But censoring confessional speech in the name of ‘balancing’ a right to free speech with a right to privacy, emotional harm or trivia, is not a solution either.

This is part two of the spiked-report ‘Restraint or Revelation? Free speech and privacy in a confessional age’.

Read on:

Part Three: A qualified right to free speech

Part Four: Free speech and trivia

Part Five: Free speech and the ‘right to know’

Part Six: Free speech and the public interest

Part Seven: The confusion over privacy

Part Eight: Privacy loses its meaning

Part Nine: Privacy, free speech and the media: some conclusions

Part Ten: Contents and acknowledgements

Part One: Restraint or Revelation? Free speech and privacy in a confessional age

(1) Michael Douglas, Catherine Zeta Jones and Northern Shell plc v Hello! Ltd

(2) PCC rules in favour of ‘man in the street’, Guardian, 23 May 2002

(3) An individual’s right to privacy, Christopher Hutchings, Charles Russell Solicitors (London)

(4) ‘Keep out: it’s my life – when does the man in the street have the right to privacy asks Philip Leach’, The Times, 12 June 2001

(5) Case of Esther Thomas v News Group Newspapers Ltd. and Simon Hughes, Court of Appeal, 18 July 2001 [2001] EWCA Civ. 1233

(6) Report of the Committee on Privacy, The Younger Committee, Cmnd. 5012, HMSO,1972 quoted in Are the Cameras to Blame? Princess Diana, Privacy Laws and Press Freedom in the United Kingdom, UK Law Online, 1997/8

(7) ‘We never have commented on our children’s health’, statement by prime minister Tony Blair, quoted in Observer, 23 December 2001

(8) Palace’s PR campaign takes media by storm, Guardian, 11 December 2000

(9) Prince ‘harassed’ by magazine, BBC News online, 20 November 2000

(10) Clooney amputates ‘ET’, News, E-online, 28 October 1996

(11) John H. Richardson, ‘The Common Tough of the Leading Man,’ Esquire magazine (US edition), 1 October 1999

(12) These include the Administration of Justice Act (1960), Adoption Act (1976), Air Force Act (1955), Aliens Restriction (Amendment) Act (1919), Army Act (1955), Broadcasting Act (1990), Children Act (1989), Children and Young Persons Acts (1933, 1963,1969), Civil Service Reform Act (1978), Contempt of Court Act (1981), Copyright, Designs and Patents Act (1988), Criminal Justice Acts (1925, 1987, 1988 and 1995), Customs Consolidation Act (1876), Data Protection Act (1984), Defamation Acts (1952 and 1996), Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968, Family Law Act (1986), Financial Services Act (1986), Forgery and Counterfeiting Act (1981), Incitement to Disaffection Act (1934), Indecent Displays (Control) Act (1981), Interception of Communications Act (1985), Judicial Proceedings (Regulation of Reports) Act (1926), Magistrate Courts Act (1980), Magistrates Courts (NI) Order (1981), Matrimonial Causes Act (1980), Naval Discipline Act (1957), Northern Ireland (Emergency Powers) Act (1975), Obscene Publications Act (1959), Official Secrets Acts (1911-1989), Police Act (1964), Police and Criminal Evidence Act (1984), Prevention of Corruption Act (1906), Prevention of Terrorism (Temporary Provision) Act (1989), Protection of Harassment Act (1997), Public Order Act (1986), Race Relations Act (1976), Rehabilitation of Offenders Act (1974), Representation of the People Act (1983), Sexual Offences Act (1956), Sexual Offences (Amendment) Acts (1976 and 1992), Telecommunications Act (1984), Theft Act (1968), Trade Union Reform and Employment Rights Act (1993), Tribunal Enquiry (Evidence) Act (1921), Unsolicited Goods and Services Act (1971) and the Wireless Telegraphy Act (1949) from Hugh Stephenson, ‘Tongue-Tied,’ Index on Censorship 6, 1999, p37

(13) Lords calm fears of press curbs, Guardian,10 April 2002

(14) Lord Nicholls of Birkenhead concluded that, ‘The elasticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today’s conditions, to the importance of freedom of expression by the media on all matters of public concern’, quoted from the House of Lords judgement on the case of Reynolds v Times Newspapers Ltd. and others, House of Lords, 28 October 1999

(15) Lord Steyn quoted in the House of Lords judgement on the case of Turkington and others (Practising as Mccartan Turkington Breen) v Times Newspapers Ltd. (Northern Ireland), 2 November 2000

(16) Court of Appeal judgement on the case of The ProLife Alliance v The BBC, 14 March 2002

(17) Lord Steyn quoted in the House of Lords judgement on the case of Turkington and others (Practising as Mccartan Turkington Breen) v Times Newspapers Ltd. (Northern Ireland), 2 November 2000

(18) ‘Irvine says freedom of the press will be safe with British judges’, Guardian, 4 November 1997

(19) Jack Straw, the Home Secretary, speaking on the Human Rights Bill[Lords] in the House of Commons, quoted in Hansard, Column 535, 2 July 1998

(20) Footballer loses year-long fight for privacy, Guardian, 30 February 2002

(21) Lord Chief Justice Woolf in the case of A v B & C, Court of Appeal, 11 March 2002 [2002] EWCA Civ 337

(22) Lord Chief Justice Woolf in the case of A v B & C, Court of Appeal, 11 March 2002 [2002] EWCA Civ 337

(23) Lord Chief Justice Woolf in the case of A v B & C, Court of Appeal, 11 March 2002 [2002] EWCA Civ 337

(24) Jon Holbrook, ‘Privacy law by the back door’, The Times, 29 March 2002

(25) Campbell wins privacy case against the Mirror, Guardian, 27 March 2002

(26) Naomi Campbell v Mirror Group newspapers, 22 March 2002

(27) Naomi Campbell v Mirror Group newspapers, 22 March 2002

(28) Campbell privacy case thrown out, Guardian, 14 October 2002

(29) Marcel Berlins, Now you see us, now you don’t, Guardian, 8 January 2001

(30) From the Press Office of the Press Complaints Commission, 9 September 2002

(31) Broadcasting Standards Commission, Concerning Regulation (.pdf), Briefing Update No.8, (BSC, 2001), Table 1

(32) Broadcasting Standards Commission, Concerning Regulation (.pdf), Briefing Update No.8, (BSC, 2001), Figure 1

(33) The Right of the Public to Know and Freedom of Entertainment: Information Seen From the Consumer’s Angle, a paper given by Toby Mendel, Head of Article 19’s Law programme, at the ‘Freedom of Expression and the Right to Privacy conference,’ Strasbourg, 23 September 1999

(34) Charles demands Edward choose TV or royals Guardian, 28 September 2001. For further discussion, see A princely approach to privacy, by Tessa Mayes

(35) Interview: Jane Kerr

(36) Clive Soley MP (Lab) in a questionnaire by The LIRE media group

(37) David Aaronovitch, Those horrible rags are ruining people’s lives, Independent, 11 April 2001

(38) ‘British newspapers ‘the least trusted in Europe’, Guardian, 24 April 2002

(39) Interview: Clive Jones

(40) Interview: Alex Renton

(41) Lords calm fears of press curbs, Guardian,10 April 2002

(42) Neil Wallis, editor, The People, in a speech given at a debate organised as part of the research for this report at the London School of Economics, 2001

(43) Bob Satchwell, Executive Director, The Society of Editors, in a speech given at a debate organised as part of the research for this report at the Sugar Reef nightclub, 2001

(44) Ray Bellisario, photo-journalist and video documentarist, in a questionnaire by The LIRE media group

(45) Stephen Robinson, Blair’s boy and a question of privacy, Daily Telegraph, 29 January 2002

(46) Row erupts over press watchdog, Guardian, 2 February 2002

(47) ‘Rights Time,’ Rabinder Singh QC, ‘Big Brother’ privacy supplement, Guardian, 21 September 2002