Thursday 01 November 2012 by Amber Melville-Brown
Serious public interest issues have been played out in the court and the media over the past few months. I write, of course, about the royal buttocks of Prince Harry, the regal breasts of his sister-in-law the Duchess of Cambridge and the extra-marital activities of the former England football manager Steve McClaren (pictured).
Freedom of expression is a vital commodity in our democracy; whether we obtain our news and views from a traditional print newspaper, from online sources or across the airwaves on TV or radio, we know that in order for us to be educated, informed and entertained there is often a price to pay: the rights, reputation and privacy of others.
Constant skirmishes between the right to free speech, guaranteed by article 10 of the European Convention on Human Rights, and the article 8 right to respect for private and family life, frame the boundaries of our domestic media law as ground is gained on both sides. The progression of our media law and the ability to protect rights on both sides of the battle lines are matters of significant public interest and importance. Ironic, then, that the skirmishes are so often not fought over public interest issues surrounding corruption or serious wrongdoing, but over sunbathing celebrities and footballer faux pas.
The crown jewels
When the infamous photographs of the prince's posterior were taken, he was on holiday in a private hotel room in Las Vegas. But the digital derrière - presumably captured without his consent on a mobile phone and transmitted without his authority - quickly spread across the internet. Harry's article 8 right to respect for his private life was clearly engaged - he had a reasonable expectation of privacy in the hotel room and in relation to images of his naked body. But the tantalising shots went viral, giving the Sun the excuse to run them too.
While most would argue that the privacy rights of the reckless royal were engaged, into the fray came issues of free speech and availability. While ostensibly Captain Harry Wales may have been entitled to protect his privacy, the Sun argued that there was a public interest in publication to enable its readership to take part in the debate. Pro-publication commentators also asserted a public interest justification to evidence a lapse in security by the prince's guards - not to mention a lapse in judgement by the prince himself - in dallying naked with strangers. And once the floodgates of publication had burst across the internet, there was no privacy left to protect on our domestic shores.
Acquiring the approval of St James's Palace by acceding to its appeal against exposure of this behind came a poor second to these arguments - and featured lower on the paper's list of priorities than adding an extra zero to the bottom line.
Ironic, then, that when images appeared of another exposed royal in an equally private place, the Sun did not feel the urgent need to publish photographs of the semi-clad Duchess of Cambridge. Instead, it stood firm with the rest of Fleet Street, not publishing despite availability of the images across Europe.
Sunbathing topless in the private garden of a villa in Provence, even if accessible by a very, very long lens, the duchess had a reasonable expectation of privacy. With no arguable public interest or other justification for the publication of the images, she should have remained under wraps. But the disclosure of her in bikini bottoms - with bad timing as she took part in her first overseas tour wearing the Queen's shoes - led to Mr and Mrs Windsor Mountbatten, as they were referred to in the French court, bringing legal proceedings for privacy invasion against the French Closer magazine. An interim injunction was obtained to prevent further publication in France while the elusive and unnamed photographer remains at large.
Both cases evidence a reasonable expectation of privacy gone wrong. For both prince and duchess, the King Canute principle was arguable, with images widely available across the worldwide reach of the internet. What both should have learned - and what we and our clients must understand - is that with today's modern communication tools to take, upload and publish private images at the touch of a button, both the threat to our privacy and the need to protect it are greater than ever before.
And with a recent decision concerning privacy injunctions - where else than in the field of football - that threat may be even greater for all 'role models' out there.
Not content with entertaining us on the pitch, footballers supply us with endless entertainment by queuing up for often unsuccessful and high-profile injunctions, ostensibly precisely to cover up their off-field antics. John Terry failed to convince a court that it was his privacy, rather than his reputation which affected his lucrative sponsorship agreements, that fuelled his desire to stop details of an alleged extra-marital affair. Ryan Giggs's successful privacy injunction is now famous for not being worth the paper it was written on after his affair was plastered over Twitter and his anonymised injunction outed in parliament under privilege.
And Rio Ferdinand failed to keep the fact of a relationship with a woman who was not his wife out of the papers because, as former England captain, the judge considered he had a duty to maintain high standards 'on and off the field'.
Next in line is the unfortunate Steve McClaren, former England manager. Time has been called on his secret affair as he failed to injunct the Sun. Mr Justice Lindblom found that McClaren was 'still a prominent public figure who has held positions of responsibility in the national game'. Having spoken out about a previous affair and being one of those individuals 'from whom the public could reasonably expect a higher standard of conduct', his privacy did not outweigh the public interest in disclosure.
This follows the decision in 2003 in A v B Plc (but later Flitcroft v MGN) - honoured more in the breach than in the observance in cases since then - when Lord Woolf proposed that 'the public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position'. And, accordingly, that 'the public have an understandable and so a legitimate interest in being told the information'.
Lessons for us all
The argument appears to be that, where information that the media seeks to impart reasonably contributes to a debate as to the suitability of the role model for the role in question, then there is a public interest in the exposure. This is a worrying development for all of us who advise clients who fulfil a so-called 'role model' position. The daring army officer Captain Windsor (let alone the royal prince) and the fashion icon Kate (as well as the Duchess of Cambridge) could easily fall into that category. But so too could teachers and clergy and, goodness help us, even judges and lawyers. What's worse, it seems that the role, once fulfilled, and even if given up in later life, may stick with us so that our private lives may never be safe from protection again.
As James Price QC commented at the 5RB/Hiscox media conference at the end of September, it appears that the role of role model 'is as hard to get out of as the Eagles' Hotel California'. The more mature of us will know that 'you can check-out any time you like, but you can never leave…'
Amber Melville-Brown is a litigation partner (media and reputation management) at Withers