Elizabeth Jagger wins right to protect intimate moments in a nightclub
Artists , Image Rights , Privacy / April 2005
UK

PRIVACY/IMAGE RIGHTS Artists Elizabeth Jagger was entitled to a “legitimate expectation of privacy” Mr Justice Bell has ruled in the High Court, awarding the model an injunction to prevent images of Jagger and boyfriend Callum best taken from a security camera being published. Three of the pictures had already been published in a Sunday tabloid. The pair had been involved in what The Times described as ‘heavy petting’. Mr Justice Bell said that although the claimant may be guilty of misconduct in the most general sense e was not guilty of moral turpitude to prevent her seeking recourse through the courts. Jagger claimed breach of copyright, her rights to data protection, her rights to respect for her private life under article 8 of the European Convention of Human Rights (Human Rights Act 1998) and at common law. Using wording which stem from the new ‘privacy laws’ resulting from the Human Rights Act, the Judge held that Jagger had a right to privacy and that he could see no public interest in the in further dissemination of the images which would only humiliate the claimant for the “prurient interest of others”. The balance between the article 8 right to privacy and the article…

When a Pre-trial ‘Gagging’ Order Will Be Granted by the Courts: Cream Holdings Ltd & Others v Banerjee & Another (2004)
Artists , Defamation , Privacy , Record Labels / November 2004
UK

DEFAMATION, CONFIDENTIAL INFORMATION & PRIVACY Artists, Record Labels, Press, Television In this House of Lords decision it was held that the proper test for a court to use when looking at a prior restraint order preventing the publication of information before a trial was that the order would not be granted unless the court was satisfied that the applicant’s prospects of success at trial were sufficiently favourable to justify the order being in made in the circumstances. In general terms the applicant had to satisfy the court that he would probably succeed at trial although there might be circumstances where a lower threshold might apply. Where a real probability of success could not be proved then the court should look a where the balance of convenience lay. This case revolved around the publication of certain information to do with the business of the Cream nightclub which was provided to the Liverpool Daily Post and the Liverpool Echo by Ms Banerjee who had been the financial controller of one of the Cream group companies but had been dismissed. The information allegedly showed illegal and improper activities by the Cream group. The defendants admitted that the information was confidential. These allegations were published on June 13…

Princess Caroline Wins Historic Court Battle
Artists , Privacy / August 2004
EU

PRIVACY Artists Princess Caroline of Monaco has won an appeal in the European Court of Human Rights in Strasbourg which overturns the German Constitutional Court’s decision that as a contemporary pubic figure she had to tolerate pictures taken of her in public. The ECHR held that the publication of pictures of her horse riding, skiing, with her husband and sitting in a café had violated the princess’ right to privacy, in breach of the European Convention on Human Rights (Article 8). “Every person, however well-known, must be able to enjoy a legitimate hope for the protection of… their private life,” the court said. “The court considered that the general public did not have a legitimate interest in knowing Caroline von Hannover’s whereabouts or how she behaved generally in her private life.” German law already gave some protection to celebrities; in 1998 a German court ordered Bunte magazine to pay the Princess £20,000 for violating her privacy by publishing snatched pictures of her when she was ill – taken by a Paparazzi trespassing on the Princess’s property. Germany has three months to file an appeal. See : http://news.bbc.co.uk/1/hi/world/europe/3838945.stm http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/06/25/wcaro25.xml&sSheet=/news/2004/06/25/ixnewstop.html http://www.dw-world.de/english/0,3367,1430_A_1026243_1_A,00.html ARTICLE By Jonathan Coad, Solicitor VON HANNOVER v GERMANY: WATERLOO FOR THE…

Naomi Campbell triumphs in privacy battle: Campbell v Mirror Group Newspapers (2004)
Artists , Privacy / June 2004
UK

PRIVACY Arists Model Naomi Campbell has won her privacy battle against the UK’s Daily Mirror after the newspaper reported her attendance at a Narcotics Anonymous meeting in 2001. The House of Lords re-instated the High Court’s award of £3,500. The Newspaper is left with legal costs estimated at £1 million. Editor of the Daily Mirror, Piers Morgan, was reported as saying “this is a good day for lying, drug abusing prima donnas”. By a majority of three to two, the House of Lords has reversed the decision of the Court of Appeal and reinstated the judgement of Mr Justice Morland in the High Court (see our early warning of March 2002) that the Mirror had breached the provisions of the Data Protection Act 1998 and her right to confidentiality in her treatment for narcotics addiction. The Courts held that the details of Campbell’s treatment (therapy) were medical records and therefore by their very nature confidential and private. Reference: See the article by Martin Soames, The Guardian (Media p10), May 10th 2004 COMMENT : Naomi Campbell’s argument was that she had and should be allowed to have therapy for drug addiction in private. Campbell’s original claim was threefold (1) a claim for…

The New Zealand Court of Appeal Formulates a Law of Privacy
Artists , Privacy / May 2004
New Zealand

PRIVACY Artists Michael Hosking v Pacific Magazines By a majority of three to two, the New Zealand Court of Appeal has approved the development of a law of privacy in a jurisdiction which is closer than any other to that of the UK. Since the judgement was only handed down on 25 March 2004, it is too early to say whether the approach adopted by the Court of Appeal in New Zealand will be followed in this country. However, if an appeal is made it will be to the Privy Council, who are members of the House of Lords. On the facts, the New Zealand Court of Appeal had no difficulty in finding that there was no breach of privacy. The claimant was a New Zealand television personality whose two baby children were photographed in the street. All five judges rejected the claimant’s appeal, but three went on to indicate the direction which they considered that the New Zealand law should take. Two of the judges observed that a “privacy” jurisdiction had been developed via the well established action of breach of confidence. They observed that there are now two distinct versions of this tort. One is the traditional situation…

Data Protection Act Guidelines – a Practical Summary By Sarah G Staines, solicitor
UK

DATA PROTECTION AND PRIVACY Retail, Merchandising, Internet, Artists ARTICLE:  The Data Protection Act 1998 (the “Act”) is unusual in English law in that it gives considerable discretion to the person (or company) controlling and handling information which identifies living individuals. There are eight Data Protection Principles in the Act which oblige “best practice” when businesses are collecting, using or keeping computer (or other regulated paper system) stored information, which identifies living individuals. The Act uses obtuse definitions such as “data subject”, “personal data” and “data controller”. The supervisory authority enforcing the Data Protection Act – the Information Commissioner’s Office (ICO) encourages business owners to “embrace the spirit of the legislation” and recommends a practical and pragmatic approach to the Act; but only provides guidance which it admits is intended for lawyers and not for Directors or Managers of SME’s. One thing is clear – paying lip service to the Act is not an option; even if your business is “notified” to the Information Commissioner as a controller of personal information, unless you are complying with the Act your actions could lead to civil and/or criminal prosecution. What is Personal Data? The starting point is to decide whether the information is protected by the Act. In…

Campbell v Mirror Group Newspapers Reaches the House of Lords
Artists , Privacy / April 2004
UK

PRIVACY Artists, Broadcasting Model Naomi Campbell brought her action against MGM after the Daily Mirror revealed that she had been attending Narcotics Anonymous. Her claim included actions under the right to privacy afforded by Article 8 of the Human Rights Act 1998, the law of confidence and under the Data Protection Act 1998. The data in question, that of her addiction, was deemed to be sensitive as it related to her physical and mental wellbeing and was therefore within the DPA. Campbell claimed compensation under Section 13 for unauthorised publication including resulting distress (13[2]). Campbell won limited damages at first instance in the High Court. However, as it became clear that Campbell had lied about her addiction on previous occasions the Court of Appeal ruled that MGM had a valid defence under S32 where publication is justified within the public interest with regards to the Data Protection Act. The case has now reached the House of Lords where it is being argued that whilst The Mirror was entitled to publish the fact that Campbell was an addict, details of non-medical treatment and a photograph of her leaving Narcotics Anonymous were a breach of confidence and an invasion of privacy.

Battle Royal in the High Court
Artists , Defamation , Privacy / January 2004
UK

PRIVACY, CONFIDENCE, DEFAMATION Artists On Friday 21 November, Mr Justice Lewinson imposed an interim injunction of the Daily Mirror preventing the newspaper revealing any more details about the Royal Family’s lifestyle and the royal household which had been collected by undercover reporter Ryan Parry. Amongst details reported were the Queen’s TV viewing habits (Eastenders is a favourite), her regular dining menus, her reading habits (Racing Post is laid out first every day) and drinking habits (gin and Dubonnet). Mr Parry was taken on after almost no security checks and given responsibilities which took him into direct contact with the Royal Family. The Mirror argued that it had acted at all times in the public interest and had exposed a very serious security breach involving the Queen and the Royal Family. However, it was clear that Mr Parry had signed an employee agreement which contained a confidentiality agreement. This would almost always override any right to a freedom of expression (article 10) contained in the Human Rights Act. The Royal Family argued that the publications in the Mirror were the plainest possible breach of confidence and the plainest possible intrusion into personal privacy. The full hearing for the action began on Monday November…

Paparazzi Cleared of Breaching French Privacy Laws
Artists , Privacy / January 2004
France

PRIVACY Artists Members of the paparazzi who took pictures of Diana, Princess of Wales and her companion Dodi Fayad before and after the fatal crash in Paris in 1997 have been acquitted of breaching French privacy laws. Whilst precedent had held that the inside of a car could be a private place under France’s strict privacy laws, the court held that the crashed vehicle on a public road was a public place and that the Princess and Mr Fayed had known they would be photographed when leaving the Ritz Hotel before the car crash and therefore had submitted to the invasion of privacy. If they had been found guilty, the photographers could have faced imprisonment of up to one year and fines.

Zeta Jones and Douglas Win Limited Damages
Artists , Consumers , Image Rights , Privacy / December 2003
Germany
UK

PRIVACY, IMAGE RIGHTS, COMMERCIAL CONFIDENCE Artists The photographs snatched by papparatzi at Catherine Zeta-Jones and Michael Douglas’ wedding have cost Hello! Magazine more than £1 million in damages. In the High Court, Mr Justice Lindsay awarded a total of £14,600 damages to the couple and also awarded OK! Magazine £1,033,156 in damages for commercial damage to its exclusive coverage of the New York wedding in November 2000. See Law Updates May 2003 COMMENT : The judgement in this case sees only limited damages awarded to the couple : a nominal £50 to each of the claimants for data protection infringements and £3,750 each for the ‘distress’. The substantial award of damages is to OK magazine who lost their right to exclusive pictures from the celebrity wedding and Mr Justice Lindsey accepted that the magazine had lost substantial sales. To take this further, this ‘commercial confidence’ must be based on the licence of certain rights Catherine Zeta Jones and Michael Douglas has – and it is suggested that this is not only to the ‘event’ itself, the wedding, but to their own image. Most recently F1 driver Eddie Irving won a case against TalkRadio after they used the driver’s image in an…

Criminal Proceedings Against Lindqvist ECJ C101/01
Artists , Data Protection , Internet , Privacy / November 2003
Sweden

DATA PROTECTION AND PRIVACY Internet, Artists This case arose out of a simple set of facts. A religious instructor for the Swedish Church, Bodil Lindqvist, posted up webpages on her home computer which were aimed to help parishioners prepare for their confirmation. The administrator of the Swedish Church’s website provided a link from their website to the defendant’s webpages at her request. The webpages contained information about colleagues of the defendant with first names and in some instances full names, address and telephone numbers. The defendant also remarked that one colleague was on half time work because of medical reasons – she had injured her foot. The web pages were mildly humerous but the defendant had not asked for permission from any of the parties featured. She also had failed to notify the Datainspektionen, the relevant Swedish supervisory authority, of her activities. The Defendant was charged with (i) processing personal data by automatic means with notification to the relevant authority (ii) processing sensitive personal data without authorisation and (iii) transferring the data to a third party [via the internet].The Gota Hovratt (Court of Appeal, Gota) referred the case to the European Court of Justice for clarification of EC Directive 95/46/EC….

MS DYNAMITE WINS PRIVACY PROTECTION FOR HER HOME
Artists , Privacy / October 2003
USA

PRIVACY Artists It is a common problem for celebrities to find themselves beset by unwanted attention, harassment or worse because details have made their way into the public domain about where they live. An application in June 2001 by Heather Mills McCartney for an order preventing publication of details of a new property she had bought was rejected by the High Court. However, this was the result, at least in part, of the newspaper having offered an undertaking not to publish details. The law remains unclear as to the extent to which it will protect a celebrity’s Article 8 privacy rights so far as their home is concerned. The Press Complaints Commission has taken a big step towards recognising the need for such protection in an adjudication published last week on behalf of Ms Dynamite. Ms Dynamite complained to the PCC, through her record company Polydor, that an article (and accompanying photograph) headlined “Chart Star’s dream house is right next door to my mum” published in the Islington Gazette on 26 March 2003 intruded into her privacy contrary to clause 3 of the PCC Code of Practice. This PCC provision closely mirrors the Article 8 wording and reads as follows:…

THE CULTURE, MEDIA & SPORTS COMMITTEE TELLS IT LIKE IT IS
Artists , Privacy / August 2003
EU
UK

PRIVACY LAW Artists The House of Commons Culture, Media and Sports Committee has published its long-awaited report on Privacy and Media Intrusion. In it the Committee made a series of recommendations. The one which has gathered the most publicity is that the Government “bring forward legislative proposals to clarify the protection that individuals can expect from unwarranted intrusion by anyone – not the press alone – into their private lives.” As the Committee rightly says: “This is necessary fully to satisfy the obligations upon the UK under the European Convention on Human Rights.” This was illustrated recently by the Peck case. There is already by means of the Human Rights Act a legislative provision providing some protection for individuals against intrusions into the private lives of individuals. This is by the importation (albeit obliquely) of Article 8 of the European Convention on Human Rights into our law. Here are some of the other recommendations made by the Committee. The Committee recommended that the PCC “should consider establishing a dedicated pre-publication team to handle enquiries about [prior restraint] issues from the public and liaison with the relevant editor on the matters raised.” This is because it is at present only by…

DJ’s CASE STRENGTHENS CASE FOR UK PRIVACY LAW
Artists , Privacy / July 2003
UK

PRIVACY Artists UK DJ Sara Cox has been successful in an action against Sunday newspaper The People after the newspaper published nude shots of Cox and boyfriend John Carter on their honeymoon whilst relaxing on a private beach. Cox had originally complained to the UK’s Press Complaints Commission, the self-regulatory body which issues and adjudicates on the PCC’s code of conduct. The photographs which were in clear breach of the code resulted in a 63 word apology from the newspaper. Cox, unhappy with this result, brought an action in the High Court which resulted in a settlement awarding the DJ ÿ£50,000 as well as costs estimated at ÿ£200,000. See: The Guardian 9 June 2003. COMMENT : The result of this case is bad news for the Press Complaints Commission and bad news for self-regulation by the press in the UK. The Editor of the Sunday People sat on the PCC’s main committee as well as the code of conduct committee and the paper was clearly aware of the code. This case highlights the failures of the PCC and strengthens the case for more robust privacy laws in the UK. Recent cases (Naomi Campbell -v- Mirror Group Newspapers and Catherine Zeta Jones…

CATHERINE ZETA JONES AND MICHAEL DOUGLAS HAVE LIMITED SUCCESS AGAINST HELLO! UNDER THE LAW OF CONFIDENCE
Artists , Privacy / May 2003
UK

PRIVACY Artists In a 104 page High Court judgement, Mr Justice Lindsay ruled that Hello! magazine had breached commercial confidentiality by publishing photographs secretly taken of the Douglas/Zeta-Jones wedding, and that Hello! had breached the Press Complaint’s Commissions’ code of conduct – but that there had been no invasion of the couple’s privacy in law. The Judge held that the evidence that Hello! and OK had competed to win the right to cover the wedding was enough to demonstrate that commercial confidentiality should apply and that the couple were entitled to damages as a result of this. The judge commented that “I hold the Defendants to be liable…. under the law as to confidence. It will have been noted that an important step in my coming to that conclusion has been that, on balancing rights to confidence against freedom of express for the purpose of granting or withholding relief, I have been required by statute to pay, and have paid, regard to the Code of the Press Complaints Commission. The Hello! Defendants broke their own industry’s Code.” But Mr Justice Lindsay did not uphold the couple’s claim in privacy and indeed went some way to suggest the court would not…

DTI CONSULTATION ON EC PRIVACY DIRECTIVE
Internet , Privacy / May 2003
UK

PRIVACY Internet, Telecommunications The draft DTI (UK government’s Department of Trade & Industry) Regulations to implement the European Commission’s Privacy and Electronic Communications Directive were published on the 27th March 2003. The Privacy Directive aim is to ensure that the rules which currently apply to phone and fax services will be extended to email and SMS and that privacy will be respected when individuals use electronic networks and services. Key new features include the right of individuals to give consent (in the form of an opt in) prior to the sending of unsolicited commercial email and SMS messages. Cookies and similar software tracking devices will be subject to a requirement for greater transparency and anyone using them on a web site should provide information about them to subscribers or users and offer users the opportunity to refuse them. There are also stronger rights for individual subscribers who will be able to decide whether or not they want to be listed in subscriber directories. The full consultation document is available on the DTI web site at: www.dti.gov.uk/cii/regulatory/telecomms/telecommsregulations/comms_dpd.shtml For comment by Melissa Bailey, see www.simkins.com/archive/sim_archive.asp

CATHERINE ZETA-JONES AND MICHAEL DOUGLAS BEGIN ACTION AGAINST HELLO!
Artists , Privacy / March 2003
UK

PRIVACY LAWS Artists The action brought by Michael Douglas and Catherine Zeta Jones reached the High Court in London. The couple and Northern & Shell, publishers of OK, have brought an action against Hello! claiming that their privacy was invaded when a photographer secretly took pictures of their New York wedding and provided these to Hello! who then published the shots. The couple had an exclusive agreement with OK to publish official photos. The UK has no real body of privacy law and recent cases by celebrities such as Naomi Campbell (against Mirror Group Newspapers) and footballer Gary Flitcroft (A -v- B & C [2002]) have done little to develop the right to privacy set out in the Human Rights Act 1998 with the Court of Appeal giving a very wide definition to what the ‘public interest’ might be. Mr Justice Lindsay must have further alarmed the couple by stating in court that in the UK weddings must, by their very nature, be ‘public’ events as part of the ceremony involves asking members of the public if they know of any just reason why a marriage ceremony should not take place.