Privacy is back in the news. The Culture, Media and Sport Select Committee is due to report shortly on privacy and media intrusion, particularly in the treatment of those not generally in the public life.
In the meantime, Radio One DJ Sara Cox and her husband Jon Carter last week settled their action against The People and photographer Jason Fraser arising out of publication of pictures of her and her husband naked on holiday in the Seychelles in October 2001. They have agreed to pay Cox and Carter £50,000 damages, plus costs, and to destroy all the pictures. Several points arise.
Many reports referred to a “landmark ruling”. In fact there was no court ruling, so the case sets no legal precedent. There have been several similar such settlements (Amanda Holden for example). The case does, however, provide an important indicator of the way the law is perceived to be moving. Cox’s action was for breach of confidence, infringement of right to respect for private and family life under article 8 of the European Convention on Human Rights, and (in respect of use of photographic images) breach of the principles in the Data Protection Act 1998. The law of confidence is of uncertain ambit. There have been no cases yet clearly establishing a standalone right of privacy in UK law, although the UK courts may have to create one in due course to fill the gaps in the law of confidence (see Peck v UK, ECHR). But the newspaper would not have settled a year before the action was due to reach trial unless it thought the claim likely to succeed.
Second, there was no room for argument about the private nature of the photographs in this case. In 2001, Anna Ford failed in her application for a judicial review of a decision of the Press Complaints Commission to reject her complaint about publication of long-lens photographs of her and her ex-astronaut friend wearing swimming attire and applying sun cream on a public beach in Majorca. But in Cox’s case the couple were staying at a villa on a private island which admitted only paying guests. They were on honeymoon. They were naked. And there was no defence whatever of public interest (save for titillation) in publication.
Third, there was a dispute between The People and the photographer as to the circumstances in which the photographs were taken. A cautious editor may wish to obtain written confirmation from the photographer as to the circumstances in which the photographs were taken, and to publish only in the circumstances where there is an indemnity if things go wrong.
Fourth, and perhaps most important, the role of the PCC is again being questioned. Although not asked to adjudicate, it did intervene to obtain a rapid page-three apology for the couple. But they said the apology was inadequate and also wanted destruction of the photographs, damages and their legal costs, none of which it appears could be obtained without litigation. The temptation will be for those wealthy enough to sue to test the water with the PCC, whose Editors’ Code must be taken into account by the court when considering any restriction on freedom of expression (under section 12 of the Human Rights Act). The PCC may decline to rule on where it believes that that matter is better litigated. But then it is arguably not doing its job. Alternatively, it can rule and the matter may be litigated anyway since it cannot oust the jurisdiction of the courts.
Publication of the select committee’s report is awaited with interest.
Rupert Earle is a partner at Addleshaw Goddard
by Rupert Earle