The Football Association recently warned editors not to use photographs of David and Brooklyn Beckham, taken on a beach in Sardinia at the England team base for preparations for Euro 2004. The statement said, “David and Brooklyn Beckham’s right to privacy must be respected. Publication of any such picture taken on a private occasion in a private family place without their consent would be a wholly unjustifiable intrusion into the private life of Mr Beckham and his son”.
The FA’s solicitors cited clauses 3 and 6 of the PCC Code (on privacy and children).
Yet only a few weeks ago the Beckhams made no objection to Brooklyn and Romeo being part of a photo call on the slopes at Courchevel, to photographs being published of Brooklyn playing on a mini-quad bike at their family home or to Brooklyn being pictured at the Scooby Doo 2 premiere. The only difference between the photographs that the Beckhams found acceptable and those that they considered an invasion of their privacy was the Beckhams’ assertion that the beach in Sardinia was somewhere they considered they had “a reasonable expectation of privacy”.
If no warning had been received from the FA, clarifying that David Beckham considered this to have been a private occasion, editors being offered the photograph (following the Naomi Campbell judgment) would have asked themselves whether a reasonable person, put in the Beckhams’ position, would consider the information contained in the photograph to be private. This was not a privately-organised family holiday but a trip at the invitation of the FA for family of the England team prior to Euro 2004. There would have been an expectation that the press would be present.
Further, the Beckhams had been happy to pose with their children in previous weeks. Presumably there was nothing new in the appearance of either David or Brooklyn. An editor could be forgiven for concluding that this was not somewhere where David or Brooklyn Beckham had a reasonable expectation of privacy.
The privacy test set out in the PCC Code (revised from 1 June) is that: “It is unacceptable to photograph individuals in private places without their consent”, with a note that “private places are public or private property where there is a reasonable expectation of privacy” (note that the previous reference to long lens photography has been removed so the provision applies to all photographs). The PCC Code makes the consent of the Beckhams key – without their consent to use the photographs, even though the Beckhams may have given permission to other very similar photographs in previous weeks, publishers would need to be able to justify the ‘intrusion’.
This all means that a heavy burden is placed on publishers to collect information about the circumstances in which all photographs are taken. Internal systems also need to be sound to ensure that all staff are aware of Beckham-style privacy clarifications from celebrities.
Anna Norman is a specialist media lawyer at media firm Wiggin & Co