Mark Stephens report

Wednesday 26th November 2008

6.30pm

BPP Law School - Room 4.4

68-70 Red Lion Street, London

Mark Stephens Solicitor

Renowned international expert

Click here for full biography

Media Law and Human Rights

The Development of English Privacy Law – Mark Stephens

Although privacy has traditionally been something of an anathema to English law, a culture of “privacy tourism” has recently emerged, as foreign celebrities travel to the UK and stake a claim to privacy in English courts.

The development of this culture can be traced from Von Hannover v Germany and Naomi Campbell v Mirror Group Newspapers, where courts recognised the necessity of introducing Roman law standards of privacy to the UK. Lord Hoffman highlighted the need to distinguish between cases of public interest and gratuitously salacious details.

In Theakston v MGN the judge ruled that a prostitute had the right to sell her side of the story with regard to a particular sexual encounter. However the inclusion of photographs was taken to be disproportionate. When a political element was introduced in Kate Middleton and Prince of Wales v Associated Newspapers courts struck a more interventionist stance, extending their usage of the Protection from Harassment Act, primarily an anti-stalking measure, to police the bounds of media decency.

This trend continued in Mosley v News Group Newspapers. Mosley, unable to obtain an injunction in the UK, sought one in France instead. During the trial it was suggested that as Mosley had allegedly committed a criminal offence (assault) he forfeited any right to privacy. Comparisons were drawn with the Polanski case where a convicted child molester was granted privacy rights and allowed to give evidence by video link to avoid deportation. Broader issues raised included the extent of privacy to be afforded in criminal cases, the police frequently finding a public interest in displaying photographs of criminals despite the conflict with privacy laws.

The evolution of fully fledged privacy laws rendered illegal the media staple of “kiss and tells” unless both parties consent to sell their stories. In CC v AB an injunction prevented a cuckold from selling his story, though details had already become common knowledge by word of mouth. Furthermore, celebrities photographed during their routine lives can now use UK law to enforce the removal of these shots from the internet, whereas they may be legal according to the American and other Constitutional laws around the world.

Courts often look to editors’ and BBC guidelines to determine a reasonable expectation of privacy, as in recent events regarding Ross and Brand’s radio exposé. Judges may also consider the issue of “jigsaw identification”, where it may be possible to piece together a celebrity’s identity from different snippets of publicly revealed information. In conclusion Mark Stephens highlighted potential problems emerging from these developments for NGOs such as Amnesty and Greenpeace and stating his broad opposition to the extension of privacy laws.

The floor was opened to questions. Following a lively discussion the chair concluded by reiterating his request for the establishment of a new media affairs sub-group.