Public figures, private lives

Hollywood celebrities in court... an insatiable public appetite for gossip about footballers... No wonder a privacy law is now almost inevitable, argue Amber Melville-Brown and Matthew Himsworth

Two stories have captivated the tabloid press during recent weeks more than any others. Rather than focusing on America's steps towards war with Iraq and the impending terrorist threat on London, popular newspaper interest has lain in a Welsh movie actress, her Hollywood husband, and their starring role at the High Court, and in a Scottish football manager's confrontation with Goldenballs.

As David Beckham has been recovering from Sir Alex Ferguson's "freak act of nature", which saw a football boot fly through the tension-thickened air of the Manchester United dressing room to damage the face of the England captain, Catherine Zeta Jones and Michael Douglas have been recovering from the exertions of giving evidence in London's High Court in their privacy action.

Their case, due to finish soon, has promised to be a significant step in the slow but apparently relentless march of the UK courts towards a protected right to privacy. Brought under breach of confidence, the action relates to the unauthorised photographs of the happy couple's wedding. It seems they weren't happy, given that they had done an exclusive deal with OK! magazine and the photos published were unauthorised and published in its rival, Hello!

Not only is this case, whichever way it is decided, likely to establish principles as to how private a celebrity's life may be, it may also establish whether a private life can be a commodity exploited for commercial gain. Even more reason, they may think, for celebrities to guard their privacy well. The law may not yet help to keep the events of the Old Trafford dressing room confidential, but the man sporting a boot-shaped scar above his left eyebrow, his team mates on the pitch, and celebrities generally might eagerly be awaiting the High Court's decision.

Posh'n'Becks are undoubtedly among the UK's most-recognised couples, able to exploit their images, but there are down-sides to the fame and riches that accompany their status. Only last year Victoria and her baby Brooklyn were the subject of an alleged kidnap plot, and every day their lives are subject to the kind of media inter- est that makes emergency injunctions and legal letters par for the course.

Media interest in the celebrities' private lives, and that of footballers in particular, has perhaps never been so intense. The desire for lurid details about these rich, young men and their beautiful wives and girlfriends has become so desperate that the media have even had to make it up. ITV1's drama Footballers' Wives is an absurd exaggeration of the public perception of what lies behind the golden gates of our heroes' homes, yet the public, and the tabloids, seem to love it.

If the fictional affairs of make-believe footballers are such meat for the tabloid vultures, then what price revelations about real footballers such as Beckham? One of the stars of the show, Gary Lucy, sees the problems. As he told Glasgow's Evening Times, "The good thing is that I get to live that lifestyle when I'm acting, but I don't have to take on the same pressures that footballers do."

While tabloid interference into the lives of all celebrities is feverish, there seems some eerie obsession with footballers that makes "exclusives" about their private business so newsworthy. So, as the law of privacy stands at the moment, if a player experiences the travails of Kyle, Chardonnay, Tanya et al, would a newspaper be free to splash the details? The initial decision in Douglas vs 'Hello!' over two years ago, when the couple sought to injunct Hello! from publishing the photographs, was the first case in which a right to privacy was, arguably, recognised in English law. But this right has a competitor, the right to freedom of speech. Both are guaranteed under the UK's 1998 Human Rights Act incorporating into UK law the European Convention on Human Rights. The courts have tended to allow publication of a person's private moments only where there is a public interest in receiving this information that outweighs the individual's right to privacy.

This was followed by the "footballer case", in which Gary Flitcroft – "a B-list star by Premiership standards" according to The Sun – nevertheless created front page headlines in March of last year when the Court of Appeal refused to uphold his application for an injunction against publication of details of his extra-marital affairs. Lord Woolf stated: "Footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example." In the footballer case, it was found that the right to free speech of the other party to one of the relationships who wanted the story told, combined with the public interest in hearing what this role model was up to, did outweigh the individual's interest in keeping his private relationships confidential. If Blackburn's uncapped captain should suffer so at the hands of the courts, what chance England's skipper?

It is not all doom and gloom, though, for those seeking to protect themselves from such scrutiny. In giving judgment in an application for an injunction made by Jamie Theakston against Mirror Group in February 2002, Mr Justice Ouseley confirmed that details of relationships will be given protection from disclosure; the degree, however, will vary according to the nature of the relationship and the legitimate public interest in the parties.

For example, a short-term affair will be given less protection by the courts than a married relationship. Further, in the case of Naomi Campbell vs Mirror Group, whose appeal to the House of Lords is pending, the Court of Appeal said that, where an individual gives a public perception that is untrue – perhaps for very understandable reasons – it is justifiable for the press to reveal details that are ordinarily confidential, that reveal the true position. However, they also cast doubt on the role model approach: "The fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media. We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay."

So, it would appear in the current legal climate – provided that there is no discrepancy between the public perception and the private reality of that life – David may protect the details of the Beckham's family life. So too might his team mates, and fellow celebrated persons who, simply because of their very identity, the tabloids would love to write about.

The Culture, Media and Sport Select Committee agreed last year to conduct an inquiry into privacy and media intrusion. That is now taking place. The committee first met on 25 February and oral evidence is currently being heard. The committee's priority is the treatment by the press and the Press Complaints Commission of people not considered to be "in public life" who none the less have found themselves to be the focus of media attention for one reason or another. It will consider issues including the systems designed to handle complaints within the media; the relationship between media freedom and media responsibility; the balance between self-regulation and independence from regulation; the record of the media over the last 10 years; and the adequacy of the various codes of practice in operation and the sanctions available.

It seems certain that moves towards a law of privacy are slowly gathering pace and that no amount of tabloid press-ganging will prevent its arrival.

Amber Melville-Brown is a partner at the London media firm Schillings. Matthew Himsworth works in its media and sports department