By Raymond Wacks
Do celebrities forfeit their right to privacy? Pop stars, stars of screen, radio, television, sport and the catwalk—are regarded as fair game by the paparazzi. Members of the British Royal family, most conspicuously and tragically the Princess of Wales, have long been preyed upon by the media. More recently, photographs of the Duchess of Cambridge, taken surreptitiously while she was sunbathing at a private villa in Provence, were published online.
It is often claimed that public figures surrender their privacy. This is usually based on one of two arguments. Either it is asserted that celebrities relish publicity when it is favourable, but resent it when it is hostile. They cannot, it is argued, have it both ways. Secondly, it is said that the media have the right to ‘put the record straight.’
The first contention is fallacious. It is based on the idiom: ‘live by the sword, die by the sword.’ But surely the fact that a celebrity courts publicity—an inescapable feature of fame—cannot be allowed to annihilate his or her right to shield intimate features of their lives from public view (an argument accepted by the report of the recent Leveson Inquiry).
Nor is the second argument convincing. Suppose that a footballer were HIV-positive or suffering from cancer. Can it really be right that a legitimate desire on his part to deny that he is a sufferer of one of these diseases may be annihilated by the media’s right to ‘put the record straight’? If so, the protection of privacy is a fragile reed. Truth or falsity should not block the expectation of those who dwell in the glare of public attention.
The courts are often faced with complex, always contested, factual, philosophical, and legal issues that are not always easy to resolve. English judges must strike a balance between the competing rights of victim and media. Since the enactment of the Human Rights Act 1998, they have devised a number of tests in pursuit of this invariably contentious equilibrium between Article 8 of the European Convention on Human Rights (which refers to ‘respect for private and family life …’), and Article 10 (which protects freedom of expression).
In the case of Naomi Campbell the newspaper had, along with a photograph of her leaving a meeting of Narcotics Anonymous (NA) in a public place with other drug addicts, published the fact that she was an addict for which she had attended NA for some time. Elton John, on the other hand, the court decided had no reasonable expectation of privacy when he was photographed outside his home sporting a tracksuit and baseball cap.
Are the media entitled to ‘put the record straight? Superstars and supermodels attract little sympathy when they complain of media intrusion. They bask in the glory of favourable publicity; they cannot therefore legitimately protest when a disclosure reveals them in a less than satisfactory light. But this simple judgment neglects the principal purpose of the legal protection of personal information against its gratuitous disclosure.
A moment’s thought reveals how misconceived this argument is. When celebrities object to unsolicited disclosures of their personal information, their complaint is not that they have attracted negative ‘publicity,’ but that their privacy has been violated. There is, in other words, an important—and widely overlooked—distinction between the revelations of one’s intimate or sensitive information, on the one hand, and publicity about, say, a pop star, on the other.
There is, of course, even less sympathy for public figures that dissemble. Indeed, Naomi Campbell conceded at trial that because she had lied about her drug addiction, the media had a right to put the record straight. There is a public interest in the media revealing the truth. She was, the court held ‘ a well-known figure who courts rather than shuns publicity, described as a role model for other young women, who had consistently lied about her drug addiction and compared herself favourably with others in the fashion business who were regular users of drugs. By these actions she had forfeited the protection to which she would otherwise have been entitled and made the information about her addiction and treatment a matter of legitimate public comment on which the press were entitled to put the record straight.’
Can this be correct? Perhaps it is only in circumstances where the public figure has exhibited a degree of gross hypocrisy or mendacity that the media has exposed.
Should it matter that the victim is a ‘role model’? The argument is similar to the claim that the media have a right to put the record straight. Why should an individual, whether or not he or she happens to be a celebrity, forfeit Article 8 protection on the ground that those who regard such personsare ‘let down’ by their behaviour? Is it really ‘self-evident’, as one senior judge put it, that a famous footballer’s activities off the field have ‘a modicum of public interest … [because they] are role models for young people and undesirable behaviour on their part can set an unfortunate example’?
Several other similar cases have arisen before the courts. While there is always a delicate balance to be struck, the two most common contentions deployed against celebrities (however much we may revile them) cut little ice. Elton should be treated no differently from his many fans.
Raymond Wacks is Emeritus Professor of Law and Legal Theory. He has published numerous articles on various aspects of law and jurisprudence in leading scholarly journals and his books include Understanding Jurisprudence: An Introduction to Legal Theory (3rd ed, 2012), Philosophy of Law: A Very Short Introduction (2006), and Law: A Very Short Introduction (2008). Professor Wacks has been a leading authority on the legal protection of privacy for almost four decades. His major works in this field are The Protection of Privacy, the first book on the subject in England (1980); Personal Information: Privacy and the Law (1989); Privacy, a two-volume collection of essays (1993); Privacy and Press Freedom (1995) and Privacy: A Very Short Introduction (2010). Professor Wacks is a former chairman of the privacy committee of the Law Reform Commission of Hong Kong, and was a member of the statutory Personal Data (Privacy) Advisory Committee.