Jenny Afia considers what the Leveson inquiry means for private clients
One of the enduring images from the Leveson inquiry is the picture of a journalist sneaking an envelope into the rucksack of JK Rowling’s young child while she was at primary school.
For many of us, that was the moment we realised how far press intrusion had gone. Until then, it was perhaps easier to think well-known people have chosen to make Faustian pacts with the press, surrendering their private lives to boost their bank balances and egos.
Different level
Of course that simplistic view is still being peddled, particularly by those who benefit directly from the commoditisation of profoundly personal information. But Lord Justice Leveson has suggested different people deserve different levels of protection, depending on how they treat their own privacy.
It’s an intelligent analysis the judiciary is bound to follow and one which anyone in the public eye should be aware of.
Lord Justice Leveson has categorised people with a public profile into three groups. First are those who occupy positions of power and responsibility. Politicians are an obvious example. But the ‘power and responsibility’ test must surely be extended to those running large corporations and institutions, like the Bank of England (something the new Governor of the Bank of England is no doubt pondering this week).
Lord Justice Leveson also questions whether press proprietors and editors should be seen as being part of this group and, if so, how much press attention they personally attract.
Before the likes of Paul Dacre and Richard Desmond start fretting about journalists rummaging through their dustbins, Lord Justice Leveson makes clear the legitimate interest of the press in people with power should not be understood as a carte blanche to trawl though every aspect of their private lives.
Instead, he stresses the public’s ‘right to know’ is circumscribed by the subject-matter and a correct appreciation of what the public truly has a right to know about. Although he does not provide examples, one would hope that families, for example, would be off limits.
The second category of ‘people with a public profile’ is those who have become famous as a consequence of their success in their careers. This group includes sportsmen, such as footballer Gary Flitcroft who provided moving evidence about how his father was unable to watch his matches after a tabloid exposé as hearing the taunting upset him so much.
Other witnesses included singer Charlotte Church, and film and TV stars such as Hugh Grant and Anne Diamond. Lord Justice Leveson describes them as people who the public are interested in because of the success they enjoy in their chosen walks of life but whose private lives are largely unrelated to their professional lives and their careers.
Predictably, the press argued vociferously that many people who have become famous because of their careers have tried to make money from presenting a certain image to the public and it’s therefore fair game to set the record straight. Mr Justice Leveson expresses a degree of sympathy for this view, but correctly stresses that the ‘hypocrisy’ argument has been used indiscriminately in support of unjustified intrusions into the private lives of the famous and successful.
He quotes Hugh Grant on this point who said: “... I wasn’t aware that I traded in my good name. I’ve never had a good name. And it’s made absolutely no difference at all. I’m the man who was arrested with a prostitute”. So the hypocrisy argument should only apply in cases where there has been a serious deception, instead of being a convenient “violate privacy rights for free” card by the press.
Celebrity industry
The third category of people with a public profile is those who are only famous for their celebrity. Lord Justice Leveson said these are the people who actively participate in the ‘celebrity industry’, employing publicists to provide a steady stream of stories to the press and to inform paparazzi of their whereabouts to ensure they remain in the public eye.
Certain reality TV stars are a prime example.
While he does not go so far as to say people in this group forgo their rights entirely, Mr Justice Leveson argued that where the fame of the individual is linked to their exposure to the public through the press and other media, the relationship between the individual and the press, and the line between what’s acceptable and unethical, is more nuanced.
In such cases, what is and isn’t private may be much harder to determine.
One would imagine Private Client Adviser readers and their clients don’t tend to fall within the ‘famous for being famous’ category. Yet Lord Justice Leveson also makes the point all of us need to take care with our private information to avoid being treated in a similar way to them.
In a thoughtful analysis, Lord Justice Leveson suggests we don’t always comprehend the consequences of disclosing personal information. Social media is a good example. Lord Justice Leveson argues that the explosion in the use of it, particularly by the young, has not yet been matched by an understanding of the implications of the choices that people make in placing private material online.
Many do so unwisely or naively, not appreciating the extent to which they are compromising their privacy. The press will then seize on such examples to intrude on the person’s privacy. If adequate steps haven’t been taken to control someone’s privacy settings - not just in the online sense but in the broader one of how they live their lives generally - they could plummet from having a strong expectation of privacy, despite their public profile, to engaging in a desperate fight to maintain control.
Human right
Lord Justice Leveson’s view very much chimes with trends we’ve been seeing when protecting the privacy of people in the public eye. It probably shouldn’t be the case that people need to take proactive steps to protect something that is, after all, a human right, under the European Convention on Human Rights and the Universal Declaration of Human Rights.
But in reality, just relying on legal arguments to try to minimise the harm when there’s been a serious invasion of privacy is an old-fashioned approach, not fit for a world where 571 new websites are created per minute and 340m tweets are sent per day.
Instead, people with any sort of public profile need to take proactive measures to create private lives for themselves and their families. Take their homes for instance. Most people know doing an ‘at home’ style interview will make it harder to argue the press shouldn’t publish photos of the person’s home on another occasion. But how many people take steps to secure the position when they come to sell their home?
Countless times high-profile people have been upset when a newspaper prints photos of their living rooms and bedrooms taken from the estate agent’s website. Of course, there’s an argument doing so breaches the person’s privacy. But rather than having weekends ruined running around trying to fix the situation, it can be easily avoided by making clear to the estate agent that the seller’s identity must not be disclosed and copyright in all photos of the property will belong to the seller.
That’s just one example of how proactive measures can help people in the public eye avoid intrusions into their privacy.
Whether Lord Justice Leveson’s proposals are adopted or not remains to be seen. Either way, he sets out a clear path for how people in the public eye can help themselves which anyone with a public profile would do well to follow.
Jenny Afia is a partner at Schillings www.schillings.co.uk