Should people have a right to privacy?

by bethanyrach (student)

Beth Lair

Extended project – ‘Should people have a right to privacy?’

Privacy, should people have the choice to keep their business private? I am going to interpret the question of ‘should people have a right to privacy’ in a way that will explore a series of different angles. The dictionary definition of the word privacy is ‘the right to be free of unnecessary public scrutiny or to be let alone’ yet the definition for right to privacy is ‘the possible right to be let alone, in absence of some "reasonable" public interest in a person's activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity (such as a magazine or television show) violating the right. However, the right to privacy does not extend to prohibiting someone from taking another person's picture on the street’ 1(Law.com accessed 20/09/11 ) It is clear to see therefore that privacy rights are not simple. In England there is no straight forward privacy legislation. The above definition provides the basis for the different alleged violations and claimed rights I need to discuss in my essay. Why is phone hacking illegal but taking a person’s photograph or using their image without their permission is a lot more complicated regarding its legality? Firstly, I will discuss the right to privacy regarding photography supported by the important legal cases of Max Mosley and Douglas v Hello which I will then compare to the right to privacy regarding phone hacking supported by the recent News of the World scandal. This will lead on to the rights of personalities and to control and exploit names and images supported by the legal case of Eddie Irvine and Talksport Limited. After researching the privacy and personality rights in England, I will then go on to look at both the differences and similarities of the USA and Europe (France and Germany) in order to make comparisons between the different legal systems. This will then lead on to a discussion concerning the growth of the US legal system; should England eventually create a law on privacy? Furthermore, I will develop research on the different types of super injunctions, for both business and affairs supported by the case of Ryan Giggs. Finally, I will then discuss the first satirical magazine, Private Eye by Ian Hislop where I will discuss how this has broadened my knowledge of the whole concept of control over ones private life.

There are clear differences between ones right of photography without consent and ones right to hack into a phone without consent. In certain situations taking a picture without permission can be seen as an offence regarding the law, for example persistent photography of an individual can be seen as harassment. The protection of children act in 1978 restricted certain serious subject matter from being published in the UK such as indecent pictures of under 18 year olds. Similarly, it is a criminal offence to take photographs in a court and under no circumstances should any photographs be published from a court room, this is seen as a very serious offence and can lead to a prison sentence. However, regarding legal restrictions on photography, in the United Kingdom one cannot stop photography of private property from a public place.

This is supported by the legal case of Max Mosley. In 2008, Max Mosley, a world motorsport boss, took legal action on a Sunday Newspaper who took claimed that he took part in an orgy with Nazi suggestions. Even though there is not a law on public photos, the High Court came to the decision that Mosley was breached of his privacy rights and rewarded him £60,000 damages after being incorrectly accused him of participating in a "Nazi orgy". The judge who dealt with the case stated that ‘he (Mosley) could expect privacy for consensual "sexual activities (albeit unconventional)’ 2(Eady, 2008). However, recently Max Mosley failed whilst attempting to force newspapers to warn people before publishing about their private lives. It stands that ‘article 8 (Human Right Convention) does not require a legally binding pre-notification requirement. Accordingly, the court concludes that there has been no violation of article 8 of the convention by the absence of such a requirement in domestic law’2 3(Strasbourg ruling, 2011)2 therefore the news of the world was not legally bided to warn Mosley that he was going to publish the photographs and story.

Another case regarding privacy of photographs was the case of Douglas v Hello! Ltd in which and tried to gain an injunction towards the unauthorized photos of their wedding. The application by the Douglases and OK! was rejected by the Court of Appeal so the publication of their wedding photos continued. Unsurprisingly, the Douglases sought damages from Hello with the claim of breach of privacy and breach of the Data Protection Act 1998 and were successful in the High Court and the Court of Appeal. On the other hand, OK! had the award of damages over turned in the Court of Appeal but chose to appeal to the Lords. In the end, ‘A 3-2 majority of the Law Lords found in favour of OK! and re-instated the High Court’s award of £1,033,156. According to the majority, publication of the unauthorised photographs by Hello! breached OK!’s right of confidentiality in the authorised pictures and simultaneous publication by OK! of those authorised had not put the unauthorised images in the public domain and out of the reach of this action’4(http://www.law.ed.ac.uk/ahrc/script-ed/issue4-2.asp accessed 28/10/11) This is supported by Lord Hoffman who stated that “being a celebrity or publishing a celebrity magazine are lawful trades and I see no reason why they should be outlawed from such protection as the law of confidence may offer” 5(http://www.law.ed.ac.uk/ahrc/script-ed/issue4-2.asp accessed 28/10/11)

In the UK phone hacking is illegal and violates the Regulation of Investigatory Powers Act. This act is an act that allows requirements for secret surveillance and admittance to communications records by public bodies. Phone hacking is the term used to describe the interception of telephone calls or voicemail messages without the permission of the phone's owner. ‘When the act was passed in 2000, only nine organisations, including the police and security services, were allowed access to communications records but privacy campaigners say that too many public bodies now have access to the information’ 6(anon, 2009) yet ‘Civil liberties groups and privacy campaigners claim the act fails to provide adequate safeguards to protect individual privacy and offers no way for an individual to obtain effective redress if the powers are abused’ 7(anon, 2009).

This is a preview of the whole essay

A number of offences have been prosecuted involving the abuse of investigatory power. A major example is the News of the World scandal. One example of hacking was the phone hacking of Millie Dowler which created public outrage. Mille Dowler was a thirteen year old girl who was abducted in March 2002 and subsequently murdered. It was exposed in 2011, that her phone was hacked by News of the World reporters who had accessed her voicemail while she was reported missing. Consequently, the British public were outraged which played a part in the closure of the newspaper and led to a series of investigations and inquiries into phone hacking. Mr Ed Miliband (Leader, Labour Party) said that ‘anyone who could hack into her phone, listen to her family's frantic messages and delete them, giving false hope to those parents, is immoral and a disgrace’ 8(Miliband, 2011). Detectives found evidence of the pursuing of the Dowlers in a compilation of 11,000 pages of notes kept by Glenn Mulcaire who was the private investigator jailed for phone hacking on behalf of the News of theWorld. It was said that the messages were only deleted to free up space on her phone yet the parents of Millie Dowler unfortunately concluded that she could still be alive. The law in the UK states that this is illegal and abuses the RIPA, Glenn Mulcaire who was the private investigater started illegally intercepting mobile phone messages. However, maybe wrongly, police didn’t take action against the News of the World as their main focus was to find Millie Dowler and also because this was only one example of tabloid misconduct.

However, the scandal really blew up when it was revealed that the police had a possible 4000 targets of a variety of people who had been hacked by News of the World including sport stars, celebrities, victims of crime and politicians. Although Hacking is illegal, the police were criticised for a lack of willingness to investigate. Lord Justice Leveson is ‘conducting a initially looking at "the culture, practices and ethics" of the UK media and its relationships with police and politicians. It will later examine the extent of unlawful conduct within newspaper groups and the police's original phone-hacking investigation’ 9(http://www.bbc.co.uk/news/uk-11195407 accessed 28/09/11)The fact that phone hacking is against the law leads me onto how the English Legal system dealt with it. Numerous cases have been won in the courts, for example Sienna Miller won £100,000 damages, Andy Gray received £20,000 and Max Clifford brought a private case and obtained a reported settlement of £700,000. Glenn Mulclaire was jailed in January 2007 for when he confessed unlawfully intercepting voicemail messages received by three royal aides and he was also convicted of hacking the phones of a number of other public figures. Similarly, Clive Goodman former News of the World royal editor was jailed for four months in 2007 for phone hacking after admitting that he unlawfully intercepted hundreds of telephone voicemail messages obtained by three members of staff at Buckingham Palace. In July 2011 he was arrested again and released on bail on suspicion of corruption. This suggests to me that phone hacking in England is seen as a very serious crime once substantial evidential research is done.

A similar idea is the right to publicity, what are the rights of personalities to control and exploit their names and images around the world? Is there any right to privacy in this case? In England, fundamentally it is the right of an individual to monitor the commercial use of his or her name and image and the right to receive payment from that exploitation but in the United Kingdom these rights fail to exist. Although such courts in the United Kingdom have lengthened current laws to make quasi-image rights, the UK is still some way from making a self-standing right. In the United Kingdom, people have depended on a framework of intellectual property rights to prevent unauthorised exploitation of their names and images. Yet such rights have proceeded with difficulty because ‘to succeed in a libel claim a person must show that the offending publication has lowered his reputation in the minds of the public; trade mark registrations for images are difficult to secure and, if registered, may only protect a particular distinctive image used as a trade mark but not the general image of an individual; copyright will protect a photograph or drawing of an individual as an artistic work but not the image of the individual himself; and passing off requires a misrepresentation i.e. consumers believe the goods and services complained about are licensed or endorsed in some way by the individual’ 10(Rudnick Gray Cary, 2005).

The legal case between Eddie Irvine and Talksport Limited emphasized the degree to which English law protects personality rights, in this case regarding defamation, which is ‘the act of making untrue statements about another which damages his/her reputation’ 11(law.com accessed 28/10/11). Prior to this case, the agreement was that the English courts were disinclined to protect well-known people. For example, the decision of the Court of Appeal in the Elvis Presley case where Elvis Presley Enterprises was turn down a trade mark for `Elvis' on toiletries and similarly, in BBC Worldwide v Pally Screen Printing involving the unauthorized use of pictures of the characters from the children's television show Teletubbies. It is clear that recognized characters had no rights in their image unless they could determine that the public would be mistaken into thinking that the ‘unauthorized product had been approved, licensed or was in some other way connected to the well-known person’ 12(David Rose,2002) In the Eddie Irvine case the radio broadcaster Talk Sport, used a picture of Eddie Irvine (a Formula 1 racing driver) holding a mobile phone that was utilized to look like a Talk Sport branded radio. Irvine successfully sued for ‘passing off, namely that nobody has the right to represent his or her goods as the goods of somebody else’ 13(David Rose,2002) in this case, people would think Irvine had endorsed Talk Sport's services. However, the judge ordered the parties back to court a mere 12 days after judgment and concluded that £ 2,000 would be a reasonable sum to pay to Irvine by way of damages. Regrettably for Irvine, Talksport had presented £5,000 to settle previously in the action which meant, as a matter of English procedural law, that Irvine would be accountable for the bulk of the costs, plus the trial costs of both the parties. Although the Eddie Irvine case is frequently acknowledged as signalling the arrival of image rights, the English High Court's verdict alters very little.

To emphasise the problems regarding the English law, there has been rapid growth of the US system. A general definition of the right of publicity is every individual has the right to have power over any marketable use of his or her name, image, likeness, or other features of identity, limited (under U.S. law) by the First Amendment which therefore means that the US have a stricter system regarding privacy. The term "right of publicity" was invented by Judge Jerome Frank in the 1953 case of Haelan Laboratories v. Topps Chewing Gum who recognized ‘that a celebrity has a right to damages and other relief for the unauthorized commercial appropriation of the celebrity's persona and that such a right is independent of a common-law or a statutory right of privacy’ 14(Sheldon W. Halpern, 2003).

More than 30 states in America have some type of image or publicity right including common law or statutes. In certain states, the right ends on death; in California the right follows the term of copyright; and in Tennessee the right is everlasting. Because the Right of Publicity is governed by state (as in opposition to Federal) law, the amount of acknowledgment of the Right of Publicity differs considerably from one state to the next. For example, Indiana is thought to have the most extensive Right of Publicity statutes worldwide, supplying acknowledgment of the right for a hundred years after death and furthermore, guarding not only ones name, image and likeness but also signatures, photographs, gestures, movements, distinctive appearances, and mannerisms.

Similarly, the UK’s legal system falls short compared to most other countries in the EU as almost all of them have some right protecting commercial use of an individual's name and image. The countries which have particularly strict personality right laws are France and Germany. In France, image rights were notably developed by judges during the 20th century, until they were formally combined into Code Civil by the enactment of European Court of Human Rights Article 8 as CC article 9 (www.franco-british-law.org/pages/FR/.../assets/.../Image_Rights.pdf)bibliography. In Germany, image and publicity rights have lately been prolonged even after death when Marlene Dietrich’s estate a business from marketing and selling perfumes under the Marlene Dietrich name where ‘the courts confirmed that Marlene Dietrich's name and image rights had survived her death and commented that such rights would exist for as long as the person in question remained well-known’ 15(Rudnick Gray Cary, 2005) The problems become clear however, when we can see that in the US, it is evident that name and image rights are property rights which can be bought, sold and licensed within an individual's lifetime and sometimes after death but in Europe the rights are extremely closely connected to rights of personal privacy so it is not evident whether such rights can ever be completely transferred. Contrasting to the US, Europe’s rights stem from rights of individual privacy, which are essentially bound within the cultures of many European countries. Over time ‘these negative rights of privacy--the right to prevent intrusion into a person's private and personal life--have been adapted to become positive commercial rights--the right to receive income for use of one's own name and image to the exclusion of others’ 16(Rudnick Gray Cary, 2005).

It is clear to see that the United Kingdom is behind the US and Europe in protecting image rights. There is very little judicial development, in spite of lawyer’s efforts to develop the torts of passing off even though there are several dissimilar pieces of legislation protecting image rights in rare situations. One reason for the lack of development in England is the principle of freedom of expression – which has also developed problems regarding super injunctions. The United Kingdom subsequently, has to rely on a varied range of legal policies in order to prevent, control, or recover damages for regarding the exploitation of unpermitted images or identity. In an interview (appendix A) David Wingate agreed that England should create a privacy law, he said ‘I think that there should be a privacy law. If someone is in the public eye then they should not have as much privacy as someone who is not in the public eye. However the level of privacy to be afforded should be balanced with public interest’ supporting the fact that England’s level of privacy could afford to be increased. His view on privacy differs within the amount of privacy that should be given to different individuals. For example ‘an MP who extols family and marriage should not be afforded privacy when not demonstrating those same values in his home life. On the other hand celebrities being hounded to death during periods of their life seems to amount to harassment. Children should have a right to privacy well in excess of an adult.’

Controversially, it is now possible for one to be granted anonymity to protect ones privacy which is known as a super-injunction, the most effective injunction. A super-injunction is defined as the broadcasting of information about someone which is meant to be confidential or private and furthermore, stopping anyone from stating that the injunction even exists. A right to privacy, whilst never authorized in statute, has for a long time been recognised largely through the courts and, and lately, through the introduction of the European Convention on Human Rights into English law by the Human Rights act in 1998. However, it is very hard to balance the competing rights of freedom of speech and right to privacy as they both have separate protections. The Attorney General, Dominic Grieve QC told the House of Commons recently that “The government believes that freedom of speech is a cornerstone of our democracy and it is of the greatest importance that people should be able to discuss and debate issues as freely and openly as possible” 17(Katy Andrews, 2011). This creates problems because it is extremely difficult to weight the separate rights. Although a balance needs to be made, ‘successive governments have favoured the pendulum tilting more towards freedom of speech that privacy’ 18(Katy Andrews, 2011) which as been effected by Section 12 of the 1998 Act, ‘which contains safeguards concerning court or tribunal orders that might breach the right to freedom of expression. Parliament foresaw the need for clear guidance in balancing rights, and section 12 was supposed to be used by the courts to achieve this’ 19(Katy Andrews, 2011) yet section 12 has been interpreted in different ways with judges taking sharply different approaches. It seems that super inunctions should be regarded with importance yet modern technology such as the internet makes it extremely difficult to achieve.

A well-known example regarding breach of privacy is the revelation of Ryan Giggs’ injunction which indicated a vital success for freedom of expression and a knock to super injunctions. On May 24th, Ryan Giggs was named by John Hemming the Liberal Democrat MP, as the footballer who had taken out a super injunction. During an interview between John Hemming and Alastair Campbell, Hemming stated ‘If I hadn't done what I did on Monday, I accept that Sky wouldn't have just run with it as they did. We can't say what would or wouldn't have happened had I not spoken about the issue in the House. But I don't think I used parliamentary privilege in the sense that I needed to have it. The story had been printed in Scotland at the weekend; it had been all over Twitter and was on Wikipedia. It was in the public domain. Even though all speeches are privileged, I did not have to make use of privilege’ 20(Saner, 2011).May 28, 2011) which suggests that Hemming felt so intensely that he disregarded a court injunction and conversed about the case under the cover of parliamentary privilege, which media was then able to report. On May 19th, a report by a judicial committee led by Master of the Rolls, Lord Neuberger recommended and observed that in brief, the media should be given advanced notice of the passing of any super-injunction yet the media should not inform those who the accusations refer to. Secondly, he stated that the judiciary had not initiated a "privacy law" but super-injunctions were being used too regularly and should be more limited. He summed up the dilemma by saying ‘Our starting point was the maintenance of the fundamental principles of open justice and freedom of speech. Where privacy and confidentiality are involved, a degree of secrecy is often necessary to do justice…(but) it should only be to the extent strictly necessary to achieve the interests of justice. And when it is ordered the facts of the case and the reason for secrecy should be explained. As far as possible, in an openly available judgment.’21 (Katy Andrews, 2011). Another view on this case was provided in my interview (appendix A) as David Wingate stated that ‘if one party gains a super-injunction all those involved should be afforded the same protection such as Imogen Thomas in the Ryan Giggs case. If there was an effective privacy law then there would be no need for super injunctions’. After all evidence was considered, to me this suggests that a privacy law is needed in England yet Jeremy Hunt said: “I don’t believe a privacy law is the way forward but we’re not ruling out the need for legislative changes.” 22(Hunt, 2011).

On the other hand, injunctions regarding sex crimes and the media are a serious consideration. A rape victim will get security and anonymity but the accused does not. My interview (appendix A) provided the explanation that given the stigma of sex crime it seems that the lasting effects of being accused of such crimes are horrendous if you are found innocent. Taking this further some would say that the damage is already done once something is in the public eye hence there is a need for a privacy law to stop wild accusations being made and then individuals trying to repair their reputations. This led me to contemplate whether it is acceptable to provide one party with anonymity and the other party with none, if the party has not been proven entirely guilty.

The case regarding Joanna Yeates murder and the landlord that was accused guilty provides support to the fact that anonymity should be given to both parties until proven guilty. Yeates went missing after an evening out with friends on 17 December 2010. Her body was discovered a week later a few miles away from her home in the snow. The blame was incorrectly placed on Jefferies until Yeates’ next door neighbour Vincent Tabak was found guilty. Christopher Jefferies said he was ‘very upset at the media portrayal of him and his arrest and its aftermath was the most difficult time of my life’ 23 (http://www.guardian.co.uk/uk/2011/oct/28/yeates-landlord-criticises-police accessed 20/12/11). Jefferies was proven guilty yet the effects of people’s portrayal of him were very negatively hindered – it seems hard to repair the damage regarding his reputation.

Private Eye is Britain's first satirical magazine which has been successful yet has received criticism for its disrespectful style and enthusiasm to print stories that are controversial and supposedly insulting. In the past this has resulted in a large number of libel lawsuits against it, a spectacle for which it became ill-reputed. To gain further insight into ‘Private Eye’ I went to the Victoria and Albert museum (18th September) in London where there was an exhibition exploring the talent of Private Eye. The room was filled with a selection of the finest illustrations including politics, royalty and social observations. Visiting the museum helped me distinguish between the way that the magazine combines both humour and serious topical issues. Obviously, there were no controversial illustrations due to the fact that people may get offended. An example of a controversial issue was that of the issue following the death of Princess Diana displaying crowds of mourners outside Buckingham Palace with "Media to blame" headlined with three debatably offensive speech bubbles symbolising the speech of figures from the crowd. At the time it was banned by WH Smith because for most people the magazine had crossed a line...It dared to suggest that people were being emotionally indulgent - both appalled by the media coverage and yet wanting to buy the car crash pullouts. Now we've woken up from our drunken reaction to Diana's death, a lot of people would say Private Eye got it right. 24(http://www.bbc.co.uk/news/magazine-14969672 accessed 22/09/11).This suggests that even thought people show public outrage, the more outrageous the information/article the more articles will sell. Therefore, this is why Private Eye, for example, pushes the boundaries between basic news stories and offence.

A well known litigation case against Private Eye was in 1989 regarding the Yorkshire Ripper's wife. A jury at the High Court in London awarded £600,000 damages to Sonia Sutcliffe, wife of Peter Sutcliffe, against the satirical magazine Private Eye. 25( accessed 22/09/11)It was shown that the award given to Sutcliffe was a hundred times bigger than that awarded to three of Sutcliffe's victim which is naturally a horrifying prospect. A famous quote regarding Hislop’s reaction to this fact was "If that's justice, then I'm a banana.” summing up the inadequacies of the awards in just seven words. After researching this case, I began to think that the United Kingdom’s legal system had many problems yet it became clear that huge awards granted to libel defendants were common in the late 1980s. Although libel law has not been reformed on paper, in practice, damages awarded these days are much more realistic. Those that are regarded as excessive are usually reduced on appeal.26 ( accessed 22/09/11)

Howvever, the somewhat offensive nature of Private Eye became the reason as to why Peter Carter – Ruck, a very successful lawyer, regularly acted for the oppositional client. In two cases, Ruck acted for the same client called Nora Beloff, an Observer journalist. An Auberon Waugh piece stated that one “Nora Ballsoff” went to bed with Harold Wilson ‘but nothing improper occurred’ 27(New Law Journal, 15 & 22 April 2011). Private Eye dismissed the demand for damages yet Ruck fought to withstand that Private Eye was clearly in the wrong by making an obviously sarcastic and judgmental comment about his client– unsurprisingly Beloff was awarded £3000. Another claimant was Sir James Goldsmith who issued over 70 writs against the Eye’s distributors and newsagents, which Lord Denning held to be an abuse of process. Goldsmith gained an apology off the Eye and a contribution towards his legal costs.

Should people have a right to privacy? Having thoroughly researched the subject of privacy and reviewed the evidence, I can appreciate that this is a very complex matter and I can understand why the law is so inconclusive. At the beginning of this project, before I had conducted any research, I had a very biased vie, believing that people had a right to privacy in every situation, as the actions they partake in are their own business. However, I can now understand that privacy goes far deeper than a simple yes or no to whether an individual should have the right to privacy. I discovered that there are different rules for different situations. For example, privacy and photography as in some cases the claimants win their right to privacy such as the Douglas v Hello! Case whereas in the Max Mosley case he only won to a certain extent as there was no violation of article 8. On the other hand, photography regarding rights to personalities has different regulations as rights fail to exist in England. This questions how far England is behind other countries such as the USA regarding privacy rights, as they have image and personality rights in over 30 states. Should England follow in the direction of the growth of the US legal system or is it fine as it is? Personally, after reviewing my research I believe that the United Kingdom could benefit greatly from creating certain rights regarding privacy as legal cases would be much easier to finalise the end result. Phone hacking, however, seems to be illegal in both the USA and the United Kingdom as it violates the Regulation of Investigatory Powers Act which after researching, I agree with entirely as it can be very dangerous and cruel such as the Millie Dowler case which proved that phone hacking can have severe and morally unacceptable consequences. Therefore, although certain aspects of privacy such as phone hacking is entirely illegal, distinguishing an individual’s right to privacy is very complicated as there is not a privacy law which entitles a person to privacy. Instead, each situation has a separate rule and regulation and some have none at all. This leads me to conclude that the legal system is too complicated to make a definite decision as to whether an individual is entitled to privacy or not.