Page 162 - Law and the Media

The ‘New’ Right to Privacy
wedding three days before OK!. Zeta-Jones and Douglas were granted an injunction, but it
was too late to stop the distribution of the 15 750 copies already on sale.

The Court of Appeal subsequently dismissed the injunction, but found that Zeta-Jones and
Douglas had a legal right in respect of the infringement of their privacy for which the remedy
was to be damages. The court found the right of privacy under English law to be based on
the tort of confidence and Article 8 and Article 10(2) of the Convention. Article 10(2)
qualifies the right to freedom of expression in favour of other rights, which in this case was
the right to privacy. The court held the couple had a ‘powerfully arguable’ case that they
‘have a right of privacy which English law will today recognize and protect’. The law had
to protect those ‘who find themselves subjected to an unwarranted intrusion into their lives’.
Even though the major part of the couple’s privacy rights had become the subject of a
commercial transaction, they had retained privacy in the shape of editorial control over OK!’s
pictures. Hello!’s photographs had violated this aspect.

The Douglas case was followed by David and Victoria Beckham v MGN Ltd (2001). The
Beckhams were granted an injunction preventing Mirror Group Newspapers publishing
photographs of their new home. They gave a cross-undertaking that they would not publish
photographs of their new home themselves. However, they later sought to extend the
injunction against Mirror Group Newspapers on the basis of invasion of privacy and security
risks. When they told the court that they were in discussions with another publication with
a view to publishing the photographs, Mirror Group Newspapers sought another undertaking
that the Beckhams would not publish the photographs without giving it an opportunity to
address the court on the sale. The court extended the injunction, but refused to grant the
additional undertaking on the basis that it would be an unjustified restriction on their freedom
to determine the extent of any interference with their privacy.

The High Court has followed the lead of the Court of Appeal and has seemingly broadened
the ambit of the right of an individual to privacy. The two murderers of James Bulger sought
an injunction protecting their identity following their release from prison. The court again
considered the Douglas case and decided to grant the injunction in order to protect the
identity and preserve the anonymity of the applicants on the basis that the provisions of the
Convention and the law of confidentiality could, exceptionally, be extended to protect
individuals who were seriously at risk of injury or death if their identity or whereabouts
became public knowledge.

Initially, the injunctions granted were to terminate on the eighteenth birthdays of the
applicants. The court extended the injunctions indefinitely to restrain publicity of the
applicants’ identities, changes in their physical appearance since their detention, their new
identities upon their release into the community, information concerning their existing
placements, and all specific information that related to their time in secure units. The court
premised its decision to extend the injunctions on the right to life as enshrined in Article 2
of the Convention as well as the English common law of confidentiality (Venables v News
Group Newspapers Ltd (2001)).
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