Public property?

Despite recent cases upholding stars' rights to privacy, the media show little willingness to keep their distance, says Amber Melville-Brown
Click to follow
The Independent Online

Almost three months after the House of Lords upheld Naomi Campbell's privacy claim and one month after the European Court of Human Rights (ECHR) found for Princess Caroline of Hanover in hers, there is little evidence that the press's interest in celebrities has been curbed.

Almost three months after the House of Lords upheld Naomi Campbell's privacy claim and one month after the European Court of Human Rights (ECHR) found for Princess Caroline of Hanover in hers, there is little evidence that the press's interest in celebrities has been curbed.

The end of a relationship is a private matter. But the ins and outs of the break-up of boy-wonder Wayne Rooney from fiancée Colleen, together with distressing allegations of his playing away from home, were reported not just to Colleen but to the entire British public. And the private affairs of Sven Goran Eriksson have become equally public. Photographs of him with a Football Association secretary published in the national newspapers allegedly led to the breakdown of his stormy relationship with Nancy Dell'Olio, with resounding repercussions for his professional life, too.

Despite a run of claimant-friendly privacy decisions, Fleet Street shows no sign of reining in its photographers. Perhaps this is because the case law does not precisely define where the line is to be drawn.

If Naomi Campbell and Princess Caroline were to become best friends and were snapped on a private shopping trip, could the resulting pictures be published? Not according to the judges of the ECHR which found that photos in the German magazines Bunte and Neue Post, of the princess skiing and shopping, invaded her privacy. The German law, which did not sufficiently protect the privacy of a public figure "par excellence" such as she unless in a secluded place out of the public eye, effectively condemned her to a life with an entourage of paparazzi. While glimpses of her private life were interesting and entertaining to the public, according to the judges their "sole purpose was to satisfy the curiosity of a particular readership"; they did not contribute to "any debate of general interest to society".

Contrast this with what was said by our Law Lords in Campbell's case. She won her claim that the meat put on the bones of a legitimate story outing her as a drug addict - including surreptitiously taken photographs - had infringed her privacy. But according to Baroness Hale, "If this had been... a picture of Naomi Campbell going about her business in a public street, there could have been no complaint... Readers will obviously be interested to see how she looks if and when she pops out to the shops for a bottle of milk". Lord Hope concurred that street shots were "one of the ordinary incidents of living in a free community." So gossip magazines would be free to snap the Streatham girl buying her daily pinta, but could not publish the princess with hers.

Paul Mottram, legal adviser at MGN Limited, rejects any suggestions of inconsistency. "The court in the Caroline case clearly made its decision with one eye on the harassment that she had suffered from the press, rather than completely on the intrusiveness, or otherwise, of the photographs themselves".

Mark Bateman, a partner specialising in media at the London firm Davenport Lyons, said that what was clear to publications was that they should "stay away from children and obviously private moments". Any uncertainty as to what those "obviously private moments" are does not seem to be bothering the magazine industry. Heat recently offered its readers "100 per cent unapproved. Stars making utter fools of themselves", and Star magazine proposed "Don't print that! Photos the stars don't want you to see". Listen as hard as you might, it's not easy to hear the death knell of the celebrity magazine.

Marie O'Riordan, editor of Marie Claire, puts this down to commercial imperative: "We at Marie Claire present a Hollywood picture of celebrities, wearing the best clothes and in the best hair and make-up. But the gap between celebrities and real people is diminishing all the time, with reality TV closing it further still. The celebrity-magazine market has made a great success of showing the public celebrities looking and behaving like real people." While anticipating the celebrity-magazine industry would make minor changes for self-preservation, such as pixellating the faces of children or avoiding them altogether, she did not foresee any great industry sea change for fear of invading privacy: "it's just too lucrative", she said.

The philosophy of "live by the camera, die by the camera" must also be on the minds of some editors. Mottram says: "I suspect that the English courts would not have any time for a celebrity who sold their story to Hello! or OK! one week, and then decided to take action over an unflattering picture of them out shopping the following week. Our courts have always taken a firm line with hypocrisy and the Caroline judgement does nothing to change that". The importance of the unholy alliance between celebrity and magazine cannot be over-emphasized, with the latter feeding off celebrities while the former require the oxygen of publicity to survive. "Your average C-grade celeb probably buys two copies of every publication they are in", Bateman suggests.

Mottram agrees: "There appears to be a fundamental misconception in the eyes of the public and the judiciary that every famous person wants their private life protected. The vast majority of celebrities are only too pleased to see flattering pictures of themselves published, because it means that the press and the readers are interested in them, which translates into more work and more money. The complainers tend to come from quite a narrow band of "the usual suspects" who have either transcended from celebrity to stardom (and therefore don't need the press so much), or merely think that they have".

Duncan Lamont, a partner at the media firm Charles Russell, noted a tendency towards greater care over the use of children, as evidenced recently by the actor Ewan McGregor's successful claim, settled with The Sun and the Daily Record, over photographs published of him and his family on a beach in Mauritius. But while the media may be self-regulating in terms of children, according to Lamont for the most part "the public will still get what the public wants".

A balance has to be struck between the two competing rights guaranteed by Articles 8 and 10 of the Convention: the right to publish unauthorised flab, cellulite and sweat patches; and the rights of spoilt, prima-donna celebrities only to be photographed when they're good and ready (I paraphrase somewhat). The press appears perfectly at ease in this task, little fearing that recent decisions tie their hands too tightly.

Britain's love affair with celebrity has not been dampened by the specifics of Campbell's success, nor by the ECHR decision against Germany. We can rest assured that the publication of vital stories such as Star magazine's recent "The Best & Worst Bums! Christian's Pert Butt and Donatella's Jelly bot" are safe for some time to come.

The writer is a media specialist solicitor and a consultant at the London media firm David Price Solicitors & Advocates