13 June 2018
This has been the week of the topless photograph. On (court) paper at least, it looks like a victory for privacy; both the Duchess of Cambridge and Elsa Pataky, the Spanish actress and wife of Thor star Chris Hemworth, have won separate legal battles in France and Spain after surreptitiously obtained photographs were ruled to be in breach of their privacy. Whilst Kate was sunbathing topless on the terrace of a private villa set in acres of private land when snapped, Elsa Pataky was caught in-between photo shoots on a beach in a private resort inMexicoby a rogue photographer armed with a long-lens camera. So what do these judgments tell us other than the public has an insatiable appetite for semi-clad images of young and attractive women…? Amber Melville-Brown (partner) and Caroline Thomson (trainee) consider. Really, neither of these judgments is surprising. Under Article 8 of the European Convention on Human Rights, every individual is entitled to respect for their private life. When assessing whether Article 8 is engaged in a particular scenario, the court will consider whether the claimant had a reasonable expectation of privacy — you are more likely to have a reasonable expectation of privacy if you are, for example, inside your house than when walking down the street. If Article 8 is engaged, the court will then consider any other rights that may be at play, for example the Article 10 right to freedom of expression. A public interest justification, for example to evidence hypocrisy or wrongdoing, might in the particular circumstances outweigh the Article 8 right. Both of these cases were clear cut: the women were on private land; they had a reasonable expectation of privacy; there was no public interest or other justification for the publication of these photos. No justification other, of course, than pure commerciality. And that is what should give us cause for concern. No doubt fully aware of the legal position under the ECHR to which both Spainand Franceare signatories, the magazines decided to publish anyway. Closer, the magazine which first stripped Kate of her privacy, is reported to have increased sales by 25% and is now globally renowned. Although Kate and Elsa have now been awarded damages, neither of them is in need of an additional few euro. Even if they were, the comparatively low damages granted in privacy actions means that — even if the exposed subject chooses to take legal action — any fines imposed will be minimal when compared with the gains to be made. In other words, the law as it stands is failing to coerce publishers into respecting individuals' right to privacy and to act responsibly. What all privacy claimants really want is not compensation but for their privacy to be kept intact in the first place. Privacy is a perishable commodity and once the seal is broken, no amount of damages will re-seal the packet; the private information is spoiled for good. This is why an injunction is the only remedy which is of any practical use to an individual whose privacy is threatened. But the playing field is not level and the subject of a story can only challenge publication where they are aware that it is going to occur. Conscious that there is no justification for the publication of private information or images such as these, many a publisher may recognise that advance warning will only kill the story and will publish and be damned. Who made the tabloids God, you may question? Why should editors — ever mindful of sales — be able to weigh up whether a story is or isn't in breach of an individual's privacy? Surely it should be for the courts to consider. And it is right that if a court decides a story shouldn't be published, it isn't. But that if the court thinks it acceptable, the scoop be allowed to run. No doubt these were the thoughts on the mind of Max Mosley. The former head of the FIA was exposed by the News of the World which published footage of him participating in sadomasochistic sexual activity with a number of prostitutes back in 2008. He was subsequently awarded £60,000 in damages but this did little to plaster over the gross invasion of his privacy. Unwilling to submit to this treatment, Mr Mosley took theUK to the ECHR to press for an obligation on publishers to notify the subjects of their stories prior to publication. But disappointingly, the European Court of Human Rights missed the opportunity presented by Mosley to put prey and predator on an even keel; refusing to give a ruling which could run the risk of being incompatible with the Article 10 right to freedom of expression, it ruled in favour of the UK. Had the decision been different, perhaps the Duchess and the actress would have benefitted, rather than the pockets of celebrity gossip magazines the globe over. For make no mistake: the publication of nude shots of young women is as exploitative as it is unlawful. This is not a question of free speech and there is no benefit to society derived from such invasive and surreptitiously obtained images. Although complaints from public figures are dismissed as coming from the mouths of the over-privileged and those in an enviable position, it is only understandable that those subjected to constant scrutiny in the full glare of the paparazzi lens, need their own space every now and again. As Canadian folk singer Loreena McKennitt explained to the court during her hard-fought privacy battle back in 2005, she ‘valued what privacy was left to her more and more as the demands of fame and publicity encroached upon her: she drew the analogy of an animal living within an ever diminishing area surrounded by deforestation'. We are all aware of the destruction of the Amazon and the razing of Central American rainforest for our own selfish and commercial ends, but we do little to prevent it. It is high time that we face up to the equally disastrous and destructive force that is wielded by an unregulated and power-crazed tabloid press.