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There is currently a war being waged between publishers and celebrities both relying on conflicting aspects of the European Convention of Human Rights (ECHR).

The Two Sides
There is currently a war being waged between publishers and celebrities both relying on conflicting aspects of the European Convention of Human Rights (ECHR). Publishers argue that the publication of personal details about celebrities, including their private lives should be protected under Article 10 of the ECHR, the right to freedom of speech. It is in the public interest that information, ideas and facts should be revealed for open debate and discussion rather than permitting celebrities to control all personal information released. However, celebrities are using Article 8 of the ECHR to combat publication by claiming that to publish certain personal details would constitute a breach of their right to a private and family life, home and correspondence.

UK Privacy Law?
There is currently no law of privacy in the UK per se, however, actions to protect personal privacy are now being brought under the tort of breach of confidence in the wake of the House of Lord’s approach in Campbell v Mirror Group Newspapers Ltd [2004].

At the recent 2007 Media Law Conference, Lord Falconer justified moves to restrict the press stating that freedom could not be equated to unfettered rights to publish any information but that there should be “reasonable limits” on confidential or private information being made public.

On 30 March 2007, the House of Lords upheld the Court of Appeal’s Judgment in Ash v McKennitt  refusing to hear an appeal by Ash against an injunction restraining publication of certain paragraphs of her book “Travels With Loreena McKennitt: My Life As A Friend”. The content of the paragraphs in question were primarily describing intimate details of Loreena McKennitt’s life and not detailing any of Niema Ash’s experiences. It is easily forseeable that publication of intimate details by a friend would constitute a breach of confidence.

The Prince of Wales was successful in his application for an injunction in HRH Prince of Wales v Associated Newspapers Ltd prohibiting publication of diaries written during the hand over of Hong Kong to China. The Prince’s diaries set out his thoughts in a number of journals during his overseas diplomatic visits in order to send them to friends and family. The Mail on Sunday argued that publication of the future head of state’s political beliefs was in the public interest and the paper plans to appeal the decision in the Lords. However, the paper withdrew its claim for the right to publish 7 other volumes of the Prince’s journals.

The celebrity ability to protect their privacy has been extended by the House of Lords in the long running dispute of OK! v Hello!. OK!’s success in its breach of confidence claim against Hello! has shown that not only can celebrities restrain publication of details of their private lives but that they can successfully control the information which is published by the media. Although the Douglases application for an injunction to prevent publication of unauthorised photographs of their wedding failed, the House of Lords’ finding that Hello!’s publication of the pictures was a breach of confidence could pave the way for the grant of future injunctions of publication of unauthorised photographs.

Accordingly, celebrities can not only protect their privacy but can also select when, how and in which format details of their private lives are revealed. In this way celebrities have created a law of privacy as such and can limit the freedom of the media at large simply by entering into exclusivity deals with selected publications with the Courts being prepared to uphold these confidentiality agreements. However, Lord Hoffmann stated that the information was protected because of its commercial value and not as a consequence of any law of privacy. This begs the question will private celebrity photographs ever have no commercial value and accordingly, fail to attract the protection offered by the OK! decision?

Any Hope for a Free Press?
The balance of power between the press and individuals has been somewhat tempered by the Court of Appeal’s rejection of Lord Browne’s appeal in Lord Browne of Madingley v Associated Newspapers Ltd [2007] for injunction to be granted in respect of certain pieces of information disclosed to the Mail on Sunday by Lord Browne’s former partner. The Court stated that even though the information was imparted in the course of a relationship, this was insufficient to establish an “expectation of privacy”. However, this was only a partial victory for the free press with an injunction being granted in respect of some of the information disclosed.

Celebrities and media moguls alike will be watching developments in this area. Could these decisions mark the end of the special edition expose scoop? Only time and a number of additional test cases will tell. However, if information is only protected because of its commercial value, is this a developing law of privacy which will be exclusively available to celebrities?

This article first appeared as the "Burning Question" on Lawcareers.net