Legal Opinion: An over-complex privacy law may trigger new legislation
The Human Rights Act created a right to privacy but case law has made it difficult to define what it is. Robert Verkaik, Law Editor, tries to reconcile the legal differences
Wednesday, 23 May 2007
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There may never have been a simple answer to the question: what is the law of privacy? But a recent spate of cases has added to the dense jungle of rulings and legal principles through which even experienced judges are finding it difficult to navigate.
Perhaps the most confusing case of all, to the public at least, was the attempt by Mr Justice Eady this month to explain why he had allowed the media to publish accounts of a relationship between Lord Browne of Madingley, the former chief executive of BP, and his gay lover.
After his judgment had been translated into media-friendly newspaper copy, the message seemed to be that the only reason the injunction had been lifted was because Lord Browne had lied about how he had met his partner. More careful consideration of the judge's reasoning reveals that there was also a strong public interest in knowing about the business of BP, a publicly owned multinational company answerable to its shareholders.
In recent years, claims to privacy by celebrities and public figures have delivered difficult results. Naomi Campbell and Michael Douglas and Catherine Zeta Jones won their legal actions despite acting in ways that appeared to undermine their right to privacy. But the courts rejected a privacy complaint made by the premiership footballer Gary Flitcroft that revelations about his extra-marital affairs would intrude on the privacy of his family life.
Lawyers looking for clear guidance on the law of privacy have to cut through a growing body of opposing principles, caveats and unhelpful obiter. It means legal certainty has become a costly commodity, leaving clients to play the lottery of privicy litigation.
But help may be around the corner. In the next few weeks the House of Lords will decide whether to hear The Mail on Sunday's appeal in relation to the publication of the Prince of Wales's journals.
Last year the Court of Appeal ruled that the Prince's privacy, confidentiality and copyright were breached when the paper published extracts from his 1997 journal about the handover of Hong Kong. The journals of a future king would have great constitutional significance, the paper had argued. And in any case, the Prince appeared to want people to read them, otherwise why would he have handed them out to his friends?
On Monday The Mail on Sunday was granted a "stay" by the High Court allowing the paper to keep possession of the journals until the House of Lords had ruled. Prince Charles's legal team had argued that the newspaper had no excuse for continuing to hold onto eight journals after the Court of Appeal had decided in its favour.
Charles took action after extracts from a diary entitled "The Handover of Hong Kong or The Great Chinese Takeaway" were published, in which he referred to members of the Chinese hierarchy as "appalling old waxworks". The journals had been disclosed to the newspaper by Sarah Goodall, a disaffected former secretary in the Prince's office, despite her having signed a confidentiality agreement.
Judges have resisted pressure to create a new and clear privacy law, consistently saying this is a job for Parliament. But given MPs current antipathy to the media, a statutory right to privacy may end up being too restrictive. If the House of Lords fails to grasp the nettle this time, then the buck passes back to the politicians.
