Page 155 - Law and the Media

Law and the Media
diminished by the development of surveillance devices that enable such activities to take
place without any physical trespass onto land. Trespass by interference with letters and
communications is afforded wide protection through the criminal law and the laws of
copyright and confidence. The Wireless and Telegraphy Acts and the Interception of
Communications Act 1985 now apply criminal sanctions against those who plant listening
bugs or who intercept postal or telephone communications.

The usefulness of trespass to maintain privacy may also be limited in other ways. In
Bernstein v Skyways (1978) the court held that aerial photography that had been taken over
the claimant’s land was not trespass because the rights of a landowner in the airspace above
his property are limited to a height necessary for the ‘ordinary use and enjoyment’ of the
land. However, the court intimated that relief might be granted in circumstances where a
person was subjected to the ‘harassment of constant surveillance of his house’, accompanied
by the photographing of his ‘every activity’.

8.2.4 Defamation

A publication that is defamatory will give rise to a cause of action and damages. A
publication is defamatory if it tends to lower the claimant in the estimation of right thinking
members of society generally. This can include the publication of an image. In Tolley v JS
Fry & Sons Ltd (1931), the image of a famous amateur golfer appeared on an advertisement
with a Fry’s chocolate bar. He had not given permission for his image to be used. His action
for defamation was successful on the basis that people who knew of his amateur status would
believe he had abused it by becoming involved in commercial sponsorship.

However, even if the images in themselves are defamatory, there will be no cause of action
if the publication read as a whole clarifies the real position. In Charleston v News Group
Newspapers Ltd (1995), two actors who played the characters Madge and Harold in the
Australian television programme Neighbours were unsuccessful in their action against the
News of the World, which had published photographs showing their faces superimposed on
bodies in pornographic poses, because the article made it clear that the photographs had been
produced without the consent of the claimants.

Furthermore, statements that may appear to be defamatory and hence encroach upon a
person’s privacy may be tolerated where the maker of the statement enjoys a privilege of
some description. The grounds of such privilege are generally rather narrow. The maker of
the statement would have to be acting upon knowledge rather than mere inference and have
a legitimate interest in or duty in publishing such information. In light of the tragedy that
befell those in New York’s World Trade Centre on 11 September 2001, the dicta of the court
in Blackshaw’s Case (1983) may be particularly pertinent. In that case, a journalist published
what was more conjecture than solid fact about a civil servant’s incompetence and mal-
administration. The court said that there might be circumstances where:
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