By Bastiaan Vanacker
In a landmark ruling on December 21, 2000, the Court of Appeals in London recognized for the first time a right to privacy in British law. The court ruling might have far-reaching consequences for media in the United Kingdom.
Catherine Zeta-Jones and Michael Douglas had arranged an exclusive deal with OK! magazine to take and publish photos of their wedding ceremony at New York's Plaza Hotel on November 18, 2000. When they heard that rival magazine Hello! was about to publish wedding photos, days before the OK! issue would hit the shelves, the newlyweds and OK! went to court. The photographs Hello! was about to publish were taken without the knowledge or consent of the Hollywood stars, presumably by a guest or hotel worker at the ceremony. On November 21 they won an injunction from the High Court, prohibiting distribution of 755,900 copies of the magazine, but too late to retrieve 15,750 copies already on sale. The injunction was overturned on November 23, 2000 by the British Court of Appeal, stating that it would give its reasons in due course. It issued its opinion on December 21, in which it also stated that there is a "powerfully arguable case" that Douglas and Zeta-Jones "have a right to privacy that the English law will today recognize and protect." Accordingly, the couple's suit will be allowed to go forward to trial.
Prior to this ruling, unlike most other Western European countries, the United Kingdom had not yet established a right to privacy. When the Duchess of York tried , in August 1992, to block publication of pictures in English tabloids in which she could be seen topless and having her toes nibbled by her financial adviser, she was told that there was no right to privacy that could help her. In France, on the other hand, a publication which ran the compromising photos not only had to pay damages for infringing her right to privacy, but was also fined in criminal court. The newly-established right to privacy in Britain might give the celebrities in the United Kingdom a powerful weapon with which to defend themselves against intrusive journalism on British soil or to stop legitimate reporting about events of public interest.
The British right to privacy is derived from the Human Rights Act, passed in Britain in October of last year. The Human Rights Act incorporates into national law the European Convention on Human Rights, as required of all member states in the European Union. Article 8 of the ECHR states that "everyone has the right to respect for his private and family life," though the ECHR also recognizes the freedom of expression and of the press in Article 10. Lord Justice Sedley remarked, however, that the ECHR and the European Court of Human Rights do not give this freedom of the press, "the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts." The courts will have to decide on a case by case basis, on considerations of proportionality, in which direction the balance will tilt.
The Douglas and Zeta-Jones case, which is expected to be heard later this year, might be an important indicator of how the courts will balance freedom of the press with the newly-established right to privacy. Given that the couple sold the rights to publish their wedding photographs for 1 million pounds to a mass circulation magazine, Douglas and Zeta-Jones may not be the most credible claimants. The argument advanced by the court, however, states that the privacy violation resides in the fact that Douglas and Zeta-Jones had no veto power over which pictures would be published, a right they had negotiated in their contract with OK!. In effect, this ruling would mean that every picture that ran and was not selected by Zeta-Jones and Douglas invaded their privacy, irrespective of its actual content. Following this interpretation, Hello! and OK! could have published two identical photographs, one of which would have invaded the couple's privacy, while the other would not.
Media professionals in Britain have expressed concern about how the Human Rights Act and its subsequent interpretation in British courts might influence their ability to do their job. The BBC's senior editorial policy executive called for a carefully drafted privacy law that would respect individuals' privacy, but would also enable media to hold public figures accountable. He cited the Zeta-Jones case as an example where privacy is used as an excuse to safeguard pecuniary interests.