Privacy litigation becomes a sword and not a shield

March 2, 2010 |

An intereting piece in Times Online about a pending settlement in favour of Kate Middleton, bride presumptive of Prince William, for breach of her privacy.  The settlement sum, presumably not a confidental agreement, is 10,000 pounds plus costs as well as withdrawal of the photographs and a public apology.  Interestingly the photographs in question were not even published in England.  That shouldn’t go to liability but I think would be relevant on the question of damages.

What is really interesting is that this threat of litigation is part of a strategy by the Royal Family to curb intrusive coverage.  The report says:

Middleton’s claim follows a decision by the Queen to crack down on alleged intrusions into the private lives of the royals. Middleton’s action may also be an attempt to restrain photographers ahead of an engagement to the prince.

That litigation is being used assertively to protect a right is nothing new.  Defamation laws were used with flagarant abandon until recently by politicians and business types to shut down stories. That bullet is still available to those with deep enough pockets but it is not nearly as dangerous a weapon these days.  Active case management, reduced awards and other ways of making amends evens up the field somewhat. I didn’t like the abuse of the defamation laws then and won’t like deep pockets using the threat of litigation to scare of coverage by the press as a matter of policy rather than a real and pressing case of abuse. Middleton has a real beef in this case. The photographs were of her either playing tennis at a private property or, more concerning, inside her house with her family.  The outside shot was supposed to be taken from a sidework nearby with an ordinary camera.  The argument that what the photographer saw would have been seen by anyone passing so where is the violation of privacy.  That is not the law and unlikely to be the law in the future.  The JK Rowling (Murray) High Court ruling and Campbell House of Lords decisions see to that.  In both cases the plaintiffs were in a public place.

The House of Commons Culture, Media and Sport Committee has just published a report on press standards, privacy and libel. Unlike the ALRC it says that there is not yet a need for new, specific privacy laws in the UK.  And yet the same Committee had recommended in 2003 that the Government pass privacy laws so that people would know exactly what protection they could expect. The Government rejected that plan. Either it is a very practical committee or has had the light seen to it by a whip or two in the Government.

Max Mosely, using his not so new not so new notoriety made some suggestions that are about as practical as relicensing papers, including enacting a lwww that forces journalists to contact people who will feature in their stories before publication to allow them to take out injunctions to try to stop publication before it happens rather than seek damages afterwards.  Sometimes that is ethically required but makng it a law.  Breach will no doubt attract sanction.  Made for abuse. And injunction as he ackwnowledged, saying”

[The newspapers] should be obliged, in cases where they know that the person is going to object to that publication and there is a substantial chance that he will go to court and could get an injunction, that they should notify him,”


“It is, I would suggest, inconceivable that a judge, where there is serious investigative journalism – unless there are other factors which one cannot speculate on – would give an injunction because that is exactly the basis of a free press, that you can have investigative journalism and it is in the public interest.”

The Committee goes somewa y towards Max’s suggestion by amending the Press Complaints Commission’s Code, saying:

“We recommend that the PCC should amend the Code to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a ‘public interest’ test, and should provide guidance for journalists and editors on pre-notifying in the Editors’ Codebook,”

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