Interview: Michael Tugendhat
Michael Tugendhat, QC, on free speech and privacy.
Michael Tugendhat’s comments form part of the spiked-report Restraint or Revelation? Free speech and privacy in a confessional age.
I do not advocate a new privacy statute. The law is working well as it is. Self-regulation of the press is being effectively administered by Professor Pinker and his colleagues at the Press Complaints Commission.
The Independent Television Commission, and other bodies are administering other systems that are outside the courts. There are few complaints about these bodies.
In the past regulation of privacy through the courts has been rejected because the media do not have confidence in judges adjudicating upon freedom of expression. Judges themselves accept that they are not best placed to rule on these matters. It is better to have self-regulation.
But self-regulation does not always work. The case of Michael Douglas, Catherine Zeta Jones and OK! v Hello! is an example of a case where self-regulation did not work. Hello! published photographs of the wedding of Michael Douglas and Catherine Zeta Jones which had been taken without their consent. It was not just a case of celebrities versus the press.
I represented both the Douglases and OK!, and it was also a dispute between the publishers of the two magazines. OK! had paid about £1million for the exclusive rights to photos approved by the couple. They were very valuable photos. There was going to be a very large demand for photographs of the wedding, whether that deal had been done or not.
Although the wedding was on a grand scale, much of what the bride did was what any bride would do. She did not allow press photographers to be present at the celebrations, but hired her own photographer. She selected the photos that she wanted reproduced. She did not want somebody she did not know taking poor quality and unflattering pictures and then publishing them to the world.
People who become celebrities have usually chosen to do so. But no one can become a celebrity without the support of the members of the public who pay to watch the entertainments and sporting occasions where celebrities appear. And once a person has become a celebrity, they cannot prevent the public from taking an interest in whatever happens in their lives. You cannot stop being a celebrity on occasions which most of us would regard as private, such as weddings, births, illness or accidents.
The public will demand photographs of these occasions, whether the celebrity wants it or not. So on these occasions the celebrities must either hide away, if they can, and if they choose. Or if they cannot hide, or do not want to hide, they may try to manage the publicity by making exclusive arrangements with one publisher or photographer.
What the law should do about this has been debated for 20 years. To prevent legislation the press agreed to abide by the PCC Code. It had an uncertain start, but has gained respect over the years. Journalists agree that everyone, including celebrities, has a right to respect for their privacy. But the PCC Code, and the other privacy codes, do not apply to all publications.
The codes do not apply to books. They do not apply to publications coming from abroad. And the number of adjudications against the press show that even those who are bound by the codes commit quite a number of breaches of it. It was clear that the PCC Code was not going to prevent Hello! from publishing the photographs taken without consent of the Catherine Zeta Jones’s wedding where they surely had a reasonable expectation of some privacy.
When there is a breach of the code, an adjudication by the PCC is a poor remedy. The PCC cannot stop breaches that are threatened. It cannot grant compensation. So sometimes the courts must intervene if the right to private life is to be respected. There are cases where there must be a legal remedy, whether that be an injunction or damages.
The Human Rights Act 1998 s.12 recognises this. That section emphasises the importance of freedom of expression. But it also requires the judges to have regard to the privacy codes. Where there is a tension between the two, judges have to balance the need to protect privacy with the need to allow freedom of expression. Following the Douglas case the courts are being asked to do this increasingly. So far they have applied principles similar to those developed by the self-regulatory bodies.
So the two systems of protection for privacy are now operating together and in harmony. There is no reason to doubt that they will continue to do so. There is no need for any new legislation at this stage.
But that still leaves the question: why is society so interested in the private lives of celebrities in the first place?
This is a copy of a speech given at the debate entitled ‘Private Lives, Public People’ at the London School of Economics on 7 March 2001. It was co-organised by the LIRE media group, the Society of Editors, the Media Society and the LSE Media group.