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Should celebrities be protected by privacy law? watch

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    Celebrities often court and manipulate the media and the public by selective release of personal info for personal gain, whilst exploiting privacy law to prevent unwanted revelations.

    My question is, should the law regard celebrities who do this, to have 'waived' their right to protection from privacy law?



    Once a celeb has manipulated the media, should they be 'fair game'? Or should the law afford the same protection to celebs as they would to innocent members of the public, who have had their privacy infringed?
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    Some measure, perhaps. I'm sure you're familiar with the outcome of the Campbell case and realistically that was fair.

    However I wouldn't go to any great lengths to consider entirely new rules on the subject.
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    (Original post by L i b)
    Some measure, perhaps. I'm sure you're familiar with the outcome of the Campbell case and realistically that was fair.
    Yes I am very familiar with that case.

    What is your opinion on the (arguably quite broad) rulling in Von Hannover?
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    I think there should be more privacy law, but only to stop the 'cult of celebrity' and get rid of some those annoying celebrity magazines.
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    (Original post by mark renton)
    I think there should be more privacy law, but only to stop the 'cult of celebrity' and get rid of some those annoying celebrity magazines.
    That doesn't sound like a bad idea at all The free speech value of 'tat' such as Heat Magazine et al, is very poor indeed.

    It makes me embarrassed that many Britons consume so much of the rubbish.
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    (Original post by Tufts)
    Yes I am very familiar with that case.

    What is your opinion on the (arguably quite broad) rulling in Von Hannover?
    I'd argue that it was quite broad! :p:

    Seriously though, it's been years since I read these cases and I've probably forgotten half of the facts in play. As I recall, there was a lot of talk about legitimate public interest - I find that concept quite alien.
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    (Original post by Tufts)
    That doesn't sound like a bad idea at all The free speech value of 'tat' such as Heat Magazine et al, is very poor indeed.

    It makes me embarrassed that many Britons consume so much of the rubbish.
    To me, there's very little point in rights at all if they can be so easily usurped because they apparently do not serve the interests of wider society. Rights are individual, and to recall the words of old Humey, there's can be no logical analysis of human desires: someone getting his kicks from reading Heat magazine is just as valid as someone who gets them from reading great literature.
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    If they're making their money but flaunting themselves about in the public eye and grabbing media attention (let's face it most people are famous these days for having no talent whatsoever and just partying about and showing off) then no, I don't believe they should be protected by privacy laws. You can't have it both ways.
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    (Original post by L i b)
    As I recall, there was a lot of talk about legitimate public interest - I find that concept quite alien.
    As in, the value of the speech? For instance, one's intellectual capacity or ability to participate in a democracy will not be enhanced by knowing the colour of Naomi's undercrackers?
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    (Original post by Tufts)
    As in, the value of the speech? For instance, one's intellectual capacity or ability to participate in a democracy will not be enhanced by knowing the colour of Naomi's undercrackers?
    Well, to go back to the Hume point (sorry if I'm labouring this) an individual's desires cannot be logically determined or subjected to some sort of objective hierarchy.

    In agreeing with him, I therefore believe that wanting intellectual discourse, longer life, democracy, or whatever other desires human beings is in no way inferior to the desire for, say, reading Heat magazine or (as I recall one textbook suggested) possessing a saucer of mud. For some, reading celebrity gossip may be as important to them as any sort of intellectual fulfilment is for you.
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    (Original post by L i b)
    For some, reading celebrity gossip may be as important to them as any sort of intellectual fulfilment is for you.
    But is it proven to enhance intellectual fulfillment, or is there evidence to the contrary?

    There is also the argument that newspapers/mags only have limited space, so the more space taken by 'celeb gossip' means less space for political/intellectual issues.
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    (Original post by Tufts)
    But is it proven to enhance intellectual fulfillment, or is there evidence to the contrary?
    Intellectual fulfilment leads to people making nuclear weapons...

    Extreme example, but there's no greater objective good to being fulfilled in one way rather than in another.
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    (Original post by L i b)
    Intellectual fulfilment leads to people making nuclear weapons...

    Extreme example, but there's no greater objective good to being fulfilled in one way rather than in another.
    So you think that 'gossip about celeb's clothing, etc' (I'll use those words rather than 'speech with very little value') should outweigh Art 8 right to privacy? Because if that is so, Art 8 would have very little substance.
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    What is of interest to the public may not be in the public interest.

    If it is someone for example making an honest attempt to overcome an addiction then it is not in the public interest to follow said celeb to those appointments.

    IF said celeb "tips off" the media on these appointments (and it can be proved that this has been done) then the protection goes.

    If celebs are commiting criminal offences (where they've not been very seriously provoked - e.g. being harrassed by a pap and then thumping them) then it's in the public interest to both a) know about it and b) the celeb to be busted for it.

    But we live in a world of celeb magazines where the shopping activities of Big Brother contestants in market towns are front page news.

    Taxes on celeb magazines...
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    (Original post by Prince Rhyus)
    If it is someone for example making an honest attempt to overcome an addiction then it is not in the public interest to follow said celeb to those appointments.
    The issue with Campbell was that she orginally lied to the press saying that she never took drugs.
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    They most certainly should not be afforded any special legal treatment. Firstly, consider that there is no strictly bounded category of "celebrity". The very nature of popular sentiment concerning 'pop culture' is that it can be transitory, as trends and favours fall in and out of the public gaze. How, then, is a court to delineate between a "celebrity" and one who is not? Secondly, there are a number of existing laws that regulate an individual's privacy, and numerous means of redress if that individual believes their privacy has been infringed. As the OP has argued, a celebrity has to live through the media, making their fame/defame an issue of public interest.
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    (Original post by L i b)
    Well, to go back to the Hume point (sorry if I'm labouring this) an individual's desires cannot be logically determined or subjected to some sort of objective hierarchy.

    In agreeing with him, I therefore believe that wanting intellectual discourse, longer life, democracy, or whatever other desires human beings is in no way inferior to the desire for, say, reading Heat magazine or (as I recall one textbook suggested) possessing a saucer of mud. For some, reading celebrity gossip may be as important to them as any sort of intellectual fulfilment is for you.
    The issue is not one of abrogating the right to freedom of speech per se, but of balancing it as against the right to privacy. As in any situation where two individual rights come into conflict, an objective set of standards are necessary to guide adjudication. A public interest test is both sensible and necessary in adjudicating between Art.8 and Art.10. See Jameel v Wall St Journal EU [2006] for precisely why English courts currently fail in this regard..

    To save time in stating what I think of the current English approach to this issue, the following is a typed up version of part of my Constitutional law exam script from last year:

    ‘Litigants are attempting to use the Human Rights Act 1998 to develop the common law so as to protect people’s privacy against the press. This in effect gives respect for private life priority over freedom of expression. There is no justification in the Act or in the European Convention on Human Rights for such a move.’
    Discuss.


    Times have changed since John Milton wrote his succinct rationale for protecting freedom of expression in Areopagitica (1644): “As good almost kill a man as kill a good book; who kills a man kills a reasonable creature, but who destroys a good book kills reason itself”.

    1644 marked the hasty passing of legislation by an almost victorious Parliament seeking to suppress the last remnants of Falkland and Culpepper’s pamphleteering.

    By contrast, in 2002, the Court of Appeal overturned Jack J’s injunction at first instance preventing the dissemination of the sordid details of a footballer’s affair [A v B [2002]].

    One suspects that this was not the “reason” Milton had in mind.

    Litigants are of course attempting to use the HRA to develop a tort of privacy, and rightly so for, firstly, common law traditionally very inadequately protects the right to privacy (for example, the comments of the Court of Appeal in Kaye v Robertson [1991], when malicious falsehood had to be stretched in order to prevent a manifest injustice) and, secondly, Strasbourg jurisprudence (which as Lord Bingham reminds us in R(Ullah) [2004], UK courts must follow) manifestly states that Art. 8 rights should be protected on the same level as Art. 10.

    The key judgement is of course the ECHR in Von Hannover [2004], where the Court drew a fundamental distinction between “reporting facts capable of contributing to debate in a democratic society”, and “reporting the private life of an individual”. Whilst the press in the former acts as a “watchdog of democracy”, in the latter, the public clearly does not have a legitimate interest in the information.

    As the ECHR further noted in Perry v UK [2004], Art. 8 is a crucial right in a modern democracy; that is, the right to an identity and personal development. Moreover, as Lord Nicholls noted in Campbell v MGN [2004], HL, “privacy lies at the heart of liberty in the modern state”, with Lord Hoffman adding “the importance of the protection of human autonomy & dignity” cannot be underestimated.

    To be fair on the majority in Campbell (who attempted to mould the equitable doctrine of breach of confidence far beyond that envisaged in the modern restatement in Coco v A N Clark [1969]), they didn’t yet have the benefit of Von Hannover. However, this is simply no excuse for, for example, Lord Hope to turn to the Australian case of Lenah Game Meats for guidance, rather than the Convention. Nowhere in the language of Art. 8 is there any mention whatsoever of a “highly offensive” test. The section is simple: “Everyone has a right to respect for his private & family life”, subject to the permitted derogation in subsection 2.

    The Court of Appeal in McKennit v Ash [2006] and Prince of Wales v Assoc. Newspapers [2006] have boldly attempted to reconcile the implications of Von Hannover with the binding House of Lords majority in Campbell. In the Prince of Wales case, the Court commented that the claimant was entitled to enjoy confidentiality as an aspect of his “autonomy & dignity”, echoing the language of Strasbourg and academic articles, which urge respect for privacy as a right every bit as important as freedom of expression (for example, Moreham (2005) 121 LQR).

    It is arguable that the recent House of Lords decision in Douglas v Hello! [2007] shows the senior appellate court remains in the spell of Lord Goff’s formulation of breach of confidence in . However, as Lord Hoffman pointed out, Ok!’s claim was quite rightly conceived as a breach of an obligation of confidence – rather than as a right parasitic upon the Douglas’s right to privacy – precisely because this was a commercial case par excellence.

    Thus, there is a case to be made that the courts, in the aftermath of Von Hannover, are at last permitting the full implications of Art. 8 to sink in. As Sedley J wryly noted in Douglas v Hello! (No. 1 ), HRA s.12 refers to Art. 10(2) as well as 10(1) – there is quite simply no reason whatsoever (beyond a tradition British obsession with freedom of expression) for Art. 10 to ‘trump’ Art. 8.

    Moreover, the Court of Appeal in McKennit v Ash attempted to put a stop to the bizarre ‘waiver’ principle expounded in, for example, Lennon v News Group [1978] per Denning and Theakston v MGN [2002], whereby the fact that a person has discussed publically a matter purportedly gives the press a carte blanche to publish on the subject. Privacy is all about informational autonomy and, in an age when “no comment” usually means “yes”, telling white lies is as much a part of privacy as preventing publication at all.

    However, in one particular field, the House of Lords has yet to take seriously the Strasbourg injunction of not permitting Art.10 to ‘override’ Art. 8. This is the Reynolds test, as affirmed in Jameel v Wall St Journal EU [2006].

    The ECHR has made it perfectly clear, in both Cunpana v Romania [2004] and Chauvy v France (2004) that “protection of reputation is a right which, as an aspect of private life, is protected by Art.8”.

    Given this, it is quite remarkable that in neither Reynolds nor Jameel did any of the Lords approach the question of balancing Arts. 8 & 10.

    This is all the more remarkable given the almost universal accord with Lord Hobhouse’s observation in Reynolds that “there is no right to disseminate information that isn’t true”.

    By definition, information protected under Reynolds qualified privilege is untrue (since it cannot be pleaded alongside justification).

    Hence one might question – in the abstract – what possible public interest is served by Reynolds protection.

    Moreover, the Campbell, James v Guardian case [2005] demonstrates quite how far from serious protection of Art. 8 Reynolds can be stretched. Eady J noted that the Guardian maintained – up until the point of trial – absolute immunity based on qualified privilege, despite the fact that the allegations were a) patently untrue (Campbell was not even in Iraq at the relevant time), and b) hugely damaging to the claimant’s Art. 8 rights (he has received death threats as a result).

    Overall then, the courts have made fairly good progress in bringing English law’s deficiencies in the Art. 8 area up to scratch. Certainly matters have improved since Phillipson’s 2003 article in 66 MLR. Prior to Campbell, injunctions tended to be granted only in contexts to do with the actual domicile (Beckham v MGN [2001], Blair v Associated Newspapers [2001], Holden v Express [2001]), or where there was a clear public interest in protecting confidentiality (Dame Butler Sloss’s injunctions in Venables [2001] and X (formerly Mary Bell) [2003]).

    On the other hand, in McKennitt v Ash, information already in the public domain (the claimant’s reactions to her fiancées death) was quite rightly treated as private.

    As Handyside v UK (1976) made clear, “necessary in a democratic society” uses a rich countermajoritarian model of democracy, whereby the interest of the vulnerable in particular must be protected.

    At long last, English courts are breaking free of the spell of Areopagitica and beginning to take privacy seriously.
 
 
 
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