Private Lives?: The tightrope between free expression and privacy; the Law

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The Independent Online
ISABELLE ADJANI, the French actress, walks down the street holding hands with her boyfriend, Daniel Day Lewis. The Paris magazine Voici takes a photograph: Adjani sues, claiming that her privacy has been infringed, and wins about pounds 6,000.

Seventeen years earlier, a Californian man, Oliver Sipple, saves President Gerald Ford from assassination and finds himself in the spotlight. A San Franciscan newspaper reports that Mr Sipple is homosexual, which his parents do not know. He sues, claiming infringement of privacy, but his case is dismissed. The French and Americans respond in different ways to the same issue, but they are united in at least one sense - recognition that the citizen's privacy is an issue to be addressed. In Britain successive Governments have refused to recognise any right to privacy. Nor do they recognise any right to information. So journalists are allowed to invade the hospital bedroom of an injured actor, but prevented from knowing, for instance, what dental services were provided for policemen during the Second World War.

It was into this vacuum that Sir David Calcutt, QC, was propelled, with a brief to curb what were seen as press excesses. His report, published last week, called for the creation of new criminal offences, allowing prosecution of journalists who trespass on private property, bug private conversations or take photographs of people on private property without their consent. The Government said it accepted the need for new criminal offences.

But Mark Stephens, a solicitor specialising in media law, warned that reporters would probably get round them. In California, where similar measures have been introduced, journalists have bugged telephone conversations and published the information. But because newspapers refused to say where the information had come from, the authorities were left without the evidence to bring a prosecution. Others lawyers said the new offences would not stop journalists telephoning or door-stepping parents of children who have been killed. And they apply only to the press, so they would do nothing to stop British Airways, for example, spying on Virgin's passengers.

So should a general law on privacy be introduced, enabling anyone who felt there had been an unwarranted intrusion into their lives to sue the newspaper - or company - responsible? In his report, Calcutt says it should be considered. He does not attempt to define privacy, but refers to earlier efforts to draft a Bill.

One attempt would allow people to sue newspapers for the 'unauthorised public use or public disclosure of private information'. The editor would have to argue that his or her action was in the 'public interest' or for the 'public benefit'. Thus, Roy Cornes, the Birmingham man infected with HIV who slept with a series of women, could have taken action against journalists who named him and printed his photograph. Reporters would have said that it was in the public interest to foster discussion about Aids and to warn women about Mr Cornes. A judge, or perhaps a jury, would have decided which argument was stronger. But some lawyers say this case illustrates precisely why Britain needs laws guaranteeing free speech.

How, for instance, would a judge faced by a claim from Roy Cornes under a Privacy Act decide what weight should be given to freedom of expression if there was no such law. Article 19, a group which campaigns against censorship, makes the same point. In a study of 11 Western democracies, it found that only Britain and Sweden failed to guarantee the right to privacy. But Britain alone lacked a specific right to freedom of expression or freedom of information.

Further, Anthony Lester, QC, argues that a privacy law on its own could put Britain in breach of the European Convention on Human Rights. This guarantees the right to free speech (Article 10) as well as privacy (Article 8). The Human Rights court has thus far accepted that Britain has arrived at an uneasy balance by failing to guarantee either right. A privacy law without a corresponding free speech law, Mr Lester argues, would lay the Government wide open to complaints that it was authorising breaches of Article 10.

But the experience of other nations suggests that a balance is hard to find. In Paris, Stephane Simon, an investigative journalist with France-Soir, believes his country's privacy laws serve to protect the famous and offer little help to ordinary people. He can prove, he says, that a leading French actress had an affair with a production assistant on the set of a recent film. But he cannot name her. On the other hand, as soon as crimes are committed, journalists can identify those involved. Thus, his newspaper has printed full details of a love triangle involving a husband, his wife and her affair with another woman, who was later found dead.

Other journalists point out that even for the famous, the laws do not always serve as a deterrent. For instance, Voici must have known it would be fined for the Isabelle Adjani/Daniel Day Lewis picture but probably reckoned the revenue from extra sales would exceed the pounds 6,000 fine. Karina Hesse, a lawyer at the company which publishes the German tabloid Bild, said privacy laws would have prevented the newspaper reporting details of David Mellor's affair with Antonia de Sancha. And if Bild had printed the photograph of a German equivalent of Mr Cornes, 'I would not even go to court; I would pay that beforehand'.

In most European countries, including France, public figures, including politicians, lose their right to privacy when they are carrying out public functions: an actress who opened a supermarket with her boyfriend in tow would, therefore, be fair game for journalists. In the US protection of privacy is defined differently. Public figures have almost no right to privacy, and virtually all their actions - including their sex lives - can be reported. The same applies to ordinary people accidentally caught up in public events, as happened to Mr Sipple.

Laurent Scharff, legal counsel to the Radio/Television News Directors' Association, said there are limits to press freedom in the US. Reporters could not, for instance, print that a 20-year-old man was sleeping with a 75-year-old woman if neither was well-known. Of itself, sex is not considered to be of public interest and such a report would be an infringement of privacy.

Whatever the differences, these countries have at least tried to reconcile privacy with freedom of the press. No such attempt has been made in Britain. However, in a typically British way, it may all happen by accident. In a recent hearing at the House of Lords, Derbyshire County Council sued Times Newspapers for damages in a case that raised for the first time the question of whether a government body can take legal action to protect its reputation. Lawyers for the newspaper say any such move would interfere with 'free expression', arguing that this right was guaranteed by a combination of the common law and Article 10 of the European Convention.

If these arguments are accepted by the law lords, Britain could suddenly find itself with a right to freedom of speech. And, if so, many lawyers say it would become possible to tackle the complex job of weighing this right against a new privacy Bill.

(Photographs omitted)