TFL Guest

The Sussexes And The Rest Of Us: Publicity And Privacy

The story of Prince Harry and Meghan Markel (the ‘Sussexes’) and their life with the English media, prompts reflections on the law of press freedom and privacy as derived from common law, prompted by European Convention 1950 Arts 8 (‘respect for private and family life’: ie privacy) and 10 (freedom of expression: ie publicity). To act for a ‘celebrity’ (silly expression, but convenient short-hand; or ‘figures of contemporary society “par excellence”’ of a Monacan royal family member (see below)) will be rare for most lawyers; but this balance between privacy and media freedom of expression arises: in life generally and in family law litigation, in particular.

And so it is: the lead case on the balance between the Convention rights came in a case on the cusp between criminal and family law, namely Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593. (It was nothing to do with ‘celebrities’.) Should the name of a mother who was being prosecuted for murder of her child be anonymised for the sake of S, another child of hers? No, said Lord Steyn. Freedom of expression trumped privacy of the mother. He defined the Art 8 and 10 balance as follows:

[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.

The privacy process under the Convention began with the House of Lords in Naomi Campbell’s case (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457). The common law began to feel its way towards a concept of privacy, which tortiously could be invaded; and which before 2004 was unknown to English law. Privacy principles, six weeks later, were explored in Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 where the extent of the media’s freedom to interfere in a person’s private life was defined. Of publication of photographs of Von Hannover and her private life, the European Court said:

[23] …. even figures of contemporary society ‘par excellence’ were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos….

Five years later, Prince Harry’s uncle (Princess Diana’s brother) found himself being required to conduct his matrimonial financial relief proceedings in front of the full range of the media, in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416. The rules for admission of media to family proceedings (now Family Procedure Rules 2010 r 27.11(2)) had recently been changed. Munby J had sympathy with Countess and Earl Spencer, but said that there was nothing exceptional about the facts of their case which could justify him in ordering exclusion of the media. The couple settled the case overnight, so the press had no hearing to report.

Royal family members, privacy and publicity on marriage breakdown (any privacy problems of the Sussexes has nothing to do with marriage breakdown) coalesced in Prince of Luxembourg v Princess of Luxembourg [2017] EWHC 3095 (Fam), [2017] 4 WLR 223, [2018] 1 FLR 480 (to provide an abbreviated title to the case). The press had painted Princess Tessy as a gold digger. She wanted to be able to respond to this by explained the content of her negotiations to settle the financial relief case. One area of family breakdown which is totally out of bounds for publicity, is court negotiations for settlement; so even to put the story right, Macdonald J said the press could not publish the private aspects of the negotiations.

Most of these cases refer to people on a different plane of notoriety than most clients; but the principles – say in relation to care proceedings or parties’ difficulties with local authorities or government departments or health authorities – are the same. Where there is an issue on freedom of expression the Re S balance must be examined and struck – one way or the other. Privacy and freedom of expression must be carefully balanced.

David Burrows

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