Sir Cliff Richard's expectation of privacy

I hope that the law on privacy is drifting away from its origins in the law on breach of confidence, if only for the selfish reason that I don't enjoy trying to lecture on or write about privacy as if it were part of the intellectual property world. Too often it seems to be concerned with little-known celebrities (spot the oxymoron) seeking to cover up their failings. But the chances of it appearing in exam papers just got a lot bigger than they already were.

Richard v The British Broadcasting Corporation (BBC) & Anor [2018] EWHC 1837 (Ch) (18 July 2018), a case which involved a genuine celebrity and a grievance that everyone should be able to acknowledge, suggests to me that the right to privacy is diverging from the law on breach of confidence, and I hope it will work out well for both areas of law. The claim was brought on the basis of Article 8 of the European Convention on Human Rights and also invoked the Data Protection Act 1998. Article 8 of course has to be balanced against Article 10, freedom of expression. So the questions for the court were, did Sir Cliff have a reasonable expectation of privacy in respect of the events reported, and was there a public interest in publishing the facts such that the BBC's Article 10 rights would prevail?

It's hard to imagine a more egregious (yes, that's my word of the day) invasion of one's privacy than to have the One O'clock News showing aerial footage of police officers swarming all over your house. But that's not what the court had to consider: only if Sir Cliff had a reasonable expectation of privacy would that have mattered. Mann J held that he did indeed have such an expectation, so he went on to balance the BBC's rights against that. The judgment contains a lengthy review of the various factors to be taken into account, but concludes that Sir Cliff's rights were, in effect, stronger than the BBC's. My reading of the judgment is that a highly persuasive part of this was the egregious nature of the breach. Some invasions of privacy can be regarded as minor, no doubt, but this was not one of them.

The judgment contains a long section devoted to the application of the rules about damages, and also a lot about contributions between the defendants. Life is not too short, but it is too full, to read all that at the moment. It contains nothing more about data protection, other than to mention it as part of the pleadings: damages would not be recovered twice over if there were a data protection breach, so perhaps the point is pretty well moot anyway, but I can't immediately see anything in the facts that would be actionable. What personal data were involved? What did the BBC or South Yorks Police do with any such data? Data protection legislation is obviously an important part of the scheme of protection for an individual's privacy, but this doesn't seem to be a case in which it adds anything.

Yesterday at Prime Minister's Questions, Anna Soubry MP (whom I knew quite well, many years ago) asked for government support for a bill she had introduced (if it's a new one, it seems to be in the same terms as one she introduced in 2010) to protect the privacy of people being investigated by the police. She proposed that it be known as Cliff's Law. Sorry, Anna, but the Copyright and Duration of Rights in Performances Regulations 2013 (SI 2013/1782) got there first.

The Prime Minister made the point (which has also been made by others, including The Guardian here) that revealing names can encourage other victims to come forward. (It can also, of course, encourage non-victims to take a chance too, but that's another issue.) That's hard to argue with, but in the context of the Richard case surely one could say that the suspect's reasonable or legitimate expectation of privacy, which is intact while the police are searching his house for evidence, is not nearly so strong when the police have begun to assemble a case, particularly if the case is a strong one. If there is (say) a reasonable chance that there are more victims who have not come forward, that further dilutes the expectation of privacy. I am no human rights lawyer, but this situation seems to be covered by Article 8.2, a carve-out for law enforcement purposes, and Article 10 is not the right provision on which to rely for this purpose - although I suppose the media would have to be able to rely on it even if 8.2 allowed the police to name names.

The Right to Privacy

Writing as I was the other day about Project Gutenberg, I was particularly struck to see today that the seminal work on the subject, The Right to Privacy by Louis D. Brandeis and Samuel D. Warren, is now available. It'll be on my Kindle very shortly, now I have finished reading Tolstoy's The Kreutzer Sonata (my advice is don't bother).

Australia considers a statutory right to privacy

Since we can't get away from the subject of privacy, which threatens to take over the law on breach of confidence (which perhaps will eventually be sub-divided into privacy and trade secrets law so we can focus on the interesting part and leave the spoilt "celebrities" to their own devices), I was interested to learn that a statutory right to privacy was under consideration in Australia. Thanks to Ashley Tsacalos of Norton Rose, which after its pioneering work creating a national law firm - I somehow thought that the M5 group wasn't such ancient history as it actually is - is now a global one.

Consent to being photographed

What can a photographer do with an image of a well-known person? Or even someone who's not well known - who may still be what in modern parlance is called a "celebrity". A recent case from the United States sheds some light on the question - though the judgment is remarkable more for the care with which the court circumscribed its reach than the actual finding.

This is the district court for the Central District of California's decision Shirley Jones v Corbis Corporation (Case No 10-8668 SVW (CW)) (hat tip to Bob Tarantino of Heenan Blaikie in Toronto who tipped his hat in turn to THR, Esq). Shirley Jones, who was in the 1970s TV show The Partridge Family (which I had the great good fortune to escape ever seeing) not to mention films like Oklahoma!, Carousel, and Elmer Gantry , took exception to the use of photos of her in "red carpet" situations. She claimed her right of publicity was being infringed by Corbis (a stock photography agency, in case you haven't had a run-in with them or otherwise heard of them: it was founded, and is owned, by one Bill Gates) when they showed samples of images of her on their websites.

The court rejected her claims. If you show a celebrity a red carpet and a few photographers, he or she is likely to start striking poses: they know what is expected of them, and what will happen to the results. That's not exactly what the court said, but I think it's a fair paraphrase. Thereafter, the images are sold by the photographers - why else would they bother taking them? - and showing them in the manner about which she complained, even through the medium of Corbis, was entirely consistent with the implied consent given by Ms Jones. There was no evidence to support her claim that the consent was personal to the individual photographers.

At some "red carpet" events, notices are posted stating that the celebrities being exposed on the carpet consent to photos and moving images being recorded and reused, which not only kicks any argument like Ms Jones's into touch for those events but also shows pretty clearly what custom and practice is. Indeed it was not disputed that she consented to the photos being taken, and to their being sold. Her actions, and the context in which she performed them, added up to consent to everything that subsequently happened to the photos. What I don't see in the judgment, and which would be interesting to know, is when the photos were taken - I assume they date from the period of recent history in which this way of dealing with the images would have been commonplace. Had they been images from an earlier era, pre-digital, pre-Corbis, the extent of her implied consent might have been very different.

Although this is a decision of a US Federal court on US law (common law and statutory rights of privacy were pleased, though I am not sure after quickly scanning the judgment which statute is invoked), there are lessons for photographers - and for celebrities, and event organisers - elsewhere, even if (as in the UK) privacy rights are much less well-developed. Put up one of those notices, to start with, so there is the least possible doubt about what's going on. Photographers should be able to rely on the subject's implied consent just because they are there, and if the celebrity is striking poses for the photographers so much the better. Beware, however, if they are hiding their faces, or instructing photographers not to take pictures: that would probably override any implied consent, though you're more unlikely to encounter that sort of reaction on a red carpet. It's a rather special environment, and special rules apply which would not apply if you encounter the celebrity on the street.

The end of superinjunctions?

LNS v Persons Unknown [2010] EWHC 119 (QB) (29 January 2010) has become a celebrated case because of the identity of LNS, although it has a bigger claim to fame as the case in which the tide seems to have turned for privacy claims. At least the threat of superinjunctions (the name coined for court orders that don't merely forbid the disclosure of certain information, but go on to forbid the disclosure of the fact that they even exist - an example of which a client of mine once had, which is about as much as I can tell you about that although I think I can observe that the claimant's solicitors were the same firm that represented LNS) has receded, even gone away entirely. The judgment also heralds a change in the attitude of the courts to prior restraints in such cases - though it is noteworthy that it ws not Eady J, widely credited with (or blamed for) the development of a law of privacy in this country, who refused the injunction.

Rather, it was Tugendhat J, co-author of Law of Privacy and the Media, who heard the case, taking a more balanced view than I think has sometimes been the case. He seems to have attached more importance to the freedom of the press than has been the case in the past, and stressed its important role in facilitating public debate. Without a free press the public would be unable to discuss important matters - such as which professional footballer is engaged in a relationship with which other professional footballer's girlfriend. As the foundation of an important point of principle, that strikes me as lacking something - it is not, to my mind, the sort of thing that the Human Rights Act should really be concerned about, but unfortunately it is the sort of thing that the press exercises its freedom to report and in which the public takes a prurient interest: putting up with rubbish like this is, perhaps, the price we pay for the important things that the media can - when they can be bothered - achieve.

I have no interest in reading the gory details of footballers' private lives in the press or providing links to them, but I did find an excellent Press Association piece about the case itself on the Sporting Life website, co-written by an old friend and Warwick Boar colleague.