Public figure privacy rights versus free speech: reclaiming the public interest defence in UK law

AutorSteve Foster
Páginas87-112

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1. Introduction

In UK law, whether public figures, however defined, are successful in claims brought to defend their privacy and private and confidential information is largely dependent on whether there is an overriding public interest in favour of publication. This chapter examines the definition and scope of the defence of public interest in such actions, particularly in the light of judgments from both the domestic courts and the European Court of Human Rights. It will consider the potential of that defence where what is at issue is the press’s desire to inform the public on matters relating to the activities of public figures; whether they are ‘pure’ public figures, such as politicians and public officials, or well known public figures, including celebrities. More specifically, it will examine the distinction between the public interest and what the public are interested in; a distinction which has been vital in the adjudication of cases in this area, but which is often more difficult to make in practice.

It will be argued that the distinction between what is in the public interest and what the public are interested in becomes blurred when dealing with revelations about the private lives of public figures; not just because some public figures’ private lives impinge on their public status and the performance of their public functions, but also because of the public’s natural, and it is argued, legitimate interest in receiving information about figures who are well known to the public because of previous publicity and, often, self promotion. Despite the retention of the basic distinction between matters of pure public interest and issues of public curiosity, it is argued that more recent case law supports the proposition that the public interest in publication is enhanced by the public status of the claimant and that to deny a legitimate public interest in such cases is both unfair and legally unsound.

2. Defining and assessing the public interest

It must be stressed at the outset that the success of such claims depends not simply on the issue of public interest, but, initially, on whether the claimant has a legitimate

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expectation of privacy.1Thus although the public interest factor will, in most cases, be conclusive, it will naturally relate to the strength of the claimant’s expectation of privacy. This factor in turn will be linked with the claimant’s public status and the natural desire of the public to receive information, including information of a private nature, relating to public figures. Both factors - the expectation of privacy and the public interest - will thus be vital in determining the outcome of any such privacy case as the public status of the claimant will inform their legitimate expectations and the public right to know.

Equally importantly, the absence of an actionable expectation of privacy, there is no question that freedom of expression can be restricted on the basis that the publication does not serve the public interest, however that concept is defined. Thus, unless the claimant can prove that a legitimate expectation of privacy, the court will dismiss the action and will not conduct the relevant balancing exercise between privacy and free speech.2This does not disturb the rule that in balancing both rights, equal status should be given to both articles 8 and 10 of the European Convention.3However, as the courts lack the power to regulate free speech which does not, at least initially, engage the claimant’s privacy rights, the question of what right privacy rights public figures can expect to enjoy is fundamental to the overall outcome of the case. Thus, even in the case where article 8 is engaged, the possibility that such rights are reduced because of public status will strengthen the free speech claim when the court conducts its ultimate balancing exercise.

The defence of public interest, or its equivalent, is available in a number of legal actions,4including the law of confidentiality and misuse of private information, and requires the court to consider whether the speech in question is in the public interest and whether its publication outweighs the countervailing interest of the claimant. In an attempt to distinguish between what is in the public interest and what the public are interested in, the public interest defence has been limited to matters which appear to have some genuine political, legal, constitutional, social or economic relevance and thus whether the publication is capable of contributing to a debate in a democratic society. Further, the question of genuine public interest is almost inevitably tied to the question of whether the individual is a public figure, in other words one who carries out public functions. Thus in Van Hannover v Germany5 the European Court stated that:

‘...a fundamental distinction needs to be made between reporting facts - even controversial ones - capable of contributing to a debate in a democratic society relating to politicians in the exercise of their public functions, for example, and re-

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porting details of the private life of an individual who... does not exercise official functions.’6On a more general level, the Court then stated that the decisive factor in the balance between the protection of private life and freedom of expression should lie in the contribution that [the published photos and articles] make to a debate of general interest.7Although the Court’s initial comments are limited to ‘pure’ public figures, and in the above extract to politicians, it is clear that the general public interest extends beyond that restricted classification to other areas. Thus, the Parliamentary Assembly of the Council of Europe, accept that public figures must recognise that that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.8Further, it defined public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a vital role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain (italics added).9

This broad definition, although restricted by the phrase ‘vital role in public life,’ is capable of applying the public interest defence to the publication of (reasonable) details relating to the private lives of many well known figures in the world of entertainment and sport, and thus extending the defence to many matters that are of interest to the public. Accordingly, this could cover revelations relating to the private lives of, for example, footballers, film and television stars and other celebrities, who although not fulfilling as vital a role in public life as politicians and public officials, nevertheless excite public interest in activities beyond their central roles because of their public status, and thus, perhaps, justifying publication of limited material relating to the private lives of, for example, professional footballers. Further, it will be argued that the courts, both domestic and European, are beginning to recognise this interest in the development of the law.10Further, in its report on Privacy and Injunctions,11the Joint Committee referred to a number of codes issued by various regulatory agencies in an attempt to determine the scope of the public interest defence; including the Press Complaints Commission guidance and the Ofcom Broadcasting Code.12The Committee identified that the public interest would include the business of government and political conduct’ the protection of public health and safety; the fair and proper administration of justice; the conduct of the police; cheating and corruption in sport; involvement in serious

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crimes; corporate malpractice; the sympathy of a public figure with extremist dogma; and the correction of prior statements or misrepresentation by others.13

This latter category covers instances where the publication of private material is necessary to correct or clarify misinformation previously disseminated by the public figure in question.14Although the Committee fails to elaborate on this issue so as to clarify the boundaries of the public interest defence where the press and the public have a natural interest in that individual’s private life, it accepts that both allow for publication of material that may not itself be demonstrably be in the public interest; accepting that there was a public interest in freedom of expression itself.15In rejecting the need for a statutory definition of public interest the committee accepted that the current interpretation employed by the courts was adequate and reasonably clear.16In this respect, the Committee appears to be satisfied that the courts are, clearly and appropriately, maintaining a distinction between what is in the public interest and what the public may be interested in. Thus it refers to the domestic court’s acceptance that there is a scale of freedom of expression, with political expression at the top end to pornography or the right of blackmailers to freedom of speech at the bottom.17More specifically, it noted the comments of Baroness Hale in Jameel v Wall Street Journal Europe Ltd18about ‘‘the most vapid tittle tattle about the activities of footballers’ wives and girlfriends [which interest] large sections of the public but [in which] no-one could claim any real public interest in...

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