We shall discover, in a few week's time, whether there will be a law of privacy in this country and, if so, what defences are to be open to newspaper editors. This isn't a reference to a Parliamentary timetable, for no such proposals are being considered. Instead, attempts to develop a privacy law are being made in the courts.
This is the important matter which underlies three dramatic cases. The first is the action brought by Naomi Campbell against The Mirror, which published a photograph of the model leaving a meeting of Narcotics Anonymous.
Miss Campbell told the court that she felt uncomfortable at the thought that someone close to her was disclosing private information: "I want to be able to go to meetings in this country and not look behind my shoulder." The court hearing finished last week and judgment has been reserved.
The second concerned Jamie Theakston, a television presenter, who wished to keep secret a visit to a brothel. Judgment was given last Thursday. And the third, which has been considered by the Court of Appeal, has as its subject matter a footballer who was cheating on his wife with two women. Their lordships' decision is awaited.
The courts cannot make new law as such, but they can almost achieve the same effect when they interpret existing legislation in a novel way. In both the Campbell and the Theakston actions, the claims against newspapers have been based on the existing law of confidence. This prevents unauthorised disclosure of private information that has been entrusted to someone who is obliged to keep it confidential.
But who exactly owes this duty of confidentiality? Doctors do in relation to their patients; priests keep the secrets of the confessional; editors of newspapers would rather be burnt at the stake than reveal the identity of sources. The interest of the Theakston result was the judge's denial of a duty of confidentiality in the particular circumstances.
For Mr Justice Ouseley said that prostitutes owe no duty of confidentiality to their clients. He ruled, in a phrase which may be often quoted, that "it is not inherent in the nature of a brothel that all or anything that transpires within is confidential".
Mr Theakston could have offered money for confidentiality, which the prostitute might have accepted or refused, the judge said. He also gave a favourable hearing to the paper's main defence; that the public interest in publication was paramount.
The judge commented that the more Mr Theakston's lawyers objected to the article on the grounds that it would damage their client's employment – Mr. Theakston presents two youth shows for the BBC – the more it was emphasising the public interest in publication. One cannot visit brothels and at the same time expect to be presented to younger viewers as a person worthy of respect.
The Mirror has used the same type of defence against Miss Campbell. It said publication was justified because it appeared that the model had been committing a serious criminal offence by possessing and using a Class A drug, cocaine. Miss Campbell admitted that her statements in interviews that she had never touched drugs were "misleading and untrue".
It will be equally interesting to see what the judge makes of The Mirror's second line of defence. It argued that the model had compromised her privacy when she courted publicity by trading interviews in which she provided glimpses of her private life in exchange for an opportunity to promote her latest commercial venture.
The Mirror's counsel, Desmond Browne QC, asked her to agree that "if you make a bargain with fame to achieve success you have to live with the consequences and not whine about it". Miss Campbell replied: "I haven't made a bargain. I am a model and my picture appears in fashion magazines. That's my job."
The third case – the professional footballer, the wife and the two mistresses – has been based on a different piece of legislation, the Human Rights Act, which does protect privacy. Here the Appeal Court is being asked to overturn a judgment which stated that "the law should afford the protection of confidentiality to facts concerning sexual relations within marriage and, in the context of modern sexual relations, it should be no different with relationships outside marriage".
The issues awaiting resolution, therefore, are as follows. Will either the law of confidentiality or the human rights act develop a capacity to protect privacy? If the latter does, who owes a duty of confidentiality? In either case, how strong will the public interest defence be? Can a person really forfeit his or her right to privacy now because he or she has given it up in the past?
And if we are to have legal protection of privacy, wouldn't it be better that it came about by means of a law, debated and approved by Parliament, rather than by twisting existing laws into new shapes?Reuse content