The internet needs new boundaries

The recent publication of photographs of Prince Harry taken on a mobile phone on a private occasion in the US and published on a US website and then worldwide presented serious issues to the British Press. There was a strong argument that his rights of confidentiality / privacy were breached, as the Palace and his lawyers argued, but the Sun published some of ?the photos.

Confidentiality rights

Ironically it was a Royal who put confidentiality on the map. Prince Albert, Queen Victoria’s husband, sued over the threat of commercial exploitation of his private drawings that fell into the hands of an employee, and won. The law developed and in Attorney-General v Observer Ltd [1990] 1 A.C. 109 Lord Goff identified three qualifications limiting the broad general principle that a duty of confidence arose when confidential information came to the knowledge of a person (the confidant) in circumstances where he had notice that the information was confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. First, once information had entered the public domain, it could no longer be protected as confidential. Secondly, the duty of confidence applied neither to useless information, nor to trivia. Thirdly, the public interest in the preservation of a confidence might be outweighed by a greater public interest favouring disclosure. Princess Diana was thus able to get an injunction when photos taken of her in a gym were about to be published. In Theakston v MGN Limited [2002] EMLR 22 an injunction was granted not in respect of going to a brothel which Mr Justice Ouseley said was not a private place but over the threat to publish photographs taken without consent.

In Prince Harry’s case, therefore, his rights to stop publication were lost once it had taken place quite apart from any public interest argument that has been advanced.

Reasonable expectation of privacy and public interest

The individual’s rights were rescued by article 8 of the European Convention of Human Rights which in clause 1 states: “Everyone has the right to respect for his private and family life, his home and his correspondence”, and a raft of case law - the leading cases being Von Hannover v Germany [2004] 40 EHRR 1 and Campbell v MGN Ltd [2004] 2 A.C. 457, all of which centred ?on photographs.

The subsequent case of Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB) provides an excellent summary of the principles governing the law of privacy. The first hurdle is to show a reasonable expectation of privacy and then the court have to engage in an “intense focus” on the facts before balancing the article 8 rights of the subject with the article 10 right of freedom of expression and any public interest argument advanced. Everybody, famous or otherwise, has privacy rights. Ultimately it is a test of proportionality. Would any intrusion into the individual’s rights be proportionate to the public interest being served by it? The intrusive nature of visual images in photographs were given much consideration in Von Hannover and subsequently in Douglas v Hello! Ltd (No 3) [2006] QB 125 when Lord Phillips MR in the Court of Appeal said: “ This action is about photographs. Special considerations attach to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a spectator, in some circumstances voyeur would be the more appropriate noun, of whatever it is that the photograph depicts. As a means of invading privacy, a photograph is particularly intrusive. This is quite apart from the fact that the camera, and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographed could reasonably expect that their appearances or actions would not be brought to the notice of the public.”

Playing strip billiards with the principles underlying the freedom of the press, the Sun ignored the privacy argument by publishing a selection of photos of Prince Harry enjoying himself. As Lord Prescott sagely observed about their action: “It is not about privacy. It is about money, money, money.” Former Sun editor Kelvin Mackenzie predictably proclaimed that “People should stop worrying about privacy and start worrying about free speech”. Though the majority of the press did respect Prince Harry’s privacy by not publishing, and one editor specifically acknowledged his paper’s acceptance that Prince Harry’s privacy rights were unarguable, Lord Leveson is now being left with little choice.

The Press Complaints Commission, already in its death throes, notwithstanding a wave of complaints crashing down on it with regard to the Sun’s publication, reacted entirely predictably by doing nothing. It stated that to investigate without a formal complaint would be inappropriate as it might cause an intrusion into Prince Harry’s privacy. Lord Leveson knows what to do.

Internet rules

Over and above the overwhelming arguments that publication of the photos was a breach of privacy the case for action was compromised by the internet, where the photos were first published. Lord Mandelson astutely identified the problem in a letter to the Financial Times. The internet is without frontiers or national boundaries and internationally is unregulated and, he concluded, “The bigger question is how the domestic media market can be made economic and subject to any form of regulation in an era when, a click away, there is access to information that respects no national boundaries and the laws of no single national parliament or the basic standards of conventional journalism”. He is right. Domestic jurisdictions will find it increasingly difficult to enforce privacy rights when offending material is all over ?the internet.

In the Mosley case Mr Justice Eady refused to grant an injunction to restrain continuing publication of videos on the internet. He concluded: “One may express this conclusion either by saying that Mr Mosley no longer has any reasonable expectation of privacy in respect of this now widely familiar material or that, even if he has, it has entered the public domain to the extent that there is, in practical terms, no longer anything which the law can protect. The dam has effectively burst... and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available.”

Many would disagree with him. It cannot be right that in infringing someone’s privacy a tortfeasor should be allowed to profit by repetition and, by analogy with Prince Harry’s case, the fact that others are infringing his privacy does not mean that the world should have free rein. Efforts should still be made to plug the dam. It is surely time the internet was given boundaries and the Wild West was taken out of it.