Privacy for Sale   

Should courts decide who can take pictures of celebrity weddings?

"PRIVACY" IS A WORD whose meaning has been debated, distorted and twisted beyond recognition by lawyers, legislators and litigants. In countries such as France that operate under the civil law system, "privacy" is meticulously defined in detailed statutes. But in common law countries such as the United States, Australia and the United Kingdom, judges must interpret its legal significance. One of the most influential law review articles ever written on the concept, "The Right to Privacy," published in the Harvard Law Review in 1890, was coauthored by Louis Brandeis, who later became a justice of the U.S. Supreme Court.
And so it was that when Great Britain finally recognized a "right to privacy" in December 2000, it took not an Act of Parliament, but the ruling of three Court of Appeal Justices, to do it.
What kind of case prompted Lord Justices Brooke, Sedley and Keene to turn their backs on years of unbroken precedent that recognized no right to privacy in England? The case of Gorden Kaye, a British actor who was in intensive care for head injuries when his hospital room was invaded by a reporter and photographer? Or the Duchess of York, photographed poolside while her lover sucked on her toes? Or perhaps the late Diana, Princess of Wales, for surreptitious photographs that showed her working out in a gym?
None of the above. It was American actor Michael Douglas, and his wife, Welsh actress Catherine Zeta-Jones, who were outraged when their "private" wedding at the Plaza Hotel in New York before an intimate gathering of some 250 guests was spoiled by someone who had the temerity to take a few photographs.
Of course, the problem wasn't that the photographs were taken, but who took them. Douglas and Zeta-Jones had negotiated a lucrative deal granting British fan magazine OK! the exclusive right to publish color pictures of the wedding, shot by the stars' hand-picked photographer. In addition to paying the couple handsomely--£1 million is the rumored amount--the magazine also granted them the right to approve any photographs before they were published. No other media were allowed to attend, and even invited guests were frisked by security guards to make sure they weren't carrying concealed cameras or recorders.
But someone managed to snap some photographs and pass them along to OK!'s arch-rival, Hello! magazine. Zeta-Jones was on the telephone to her lawyer two days after her wedding, "upset" that a publication was about to print unauthorized, and quite possibly unflattering, photographs.
A squadron of attorneys raced to the High Court in London to obtain an injunction to stop Hello! from going forward with its issue. The injunction stopped the distribution of some of the print run, but was lifted in late November by the Court of Appeal, in part because the damage was already done.
That wasn't the end of the story, however. The three justices of the Court of Appeal waited until just before Christmas to give the British news media a lump of coal in their stockings. They ruled that the United Kingdom does recognize a right to privacy. The right arises not from English common law, but rather out of a statute. The Human Rights Act 1998 was enacted to bring the United Kingdom into conformity with the European Convention on Human Rights, and took effect in early October. The Human Rights Convention protects both the rights of free expression and of privacy.
The convention doesn't presume that privacy takes priority over all other interests. But neither does the right to free speech. Instead, as Lord Justice Stephen Sedley wrote, a "proper balance" must be struck between privacy and publicity. That balance, presumably, will be struck at the trial, later this year, when, Sedley suggests, the couple will probably be awarded "general damages of a significant amount."
In the meantime, the Court of Appeal has decided who will control a news subject's image--and it won't be the press. The rich and powerful are now free to pick and choose who will cover them and how. The public's right to know will suffer as a result. In a Christmas Eve editorial, London's Sunday Times predicted that the ruling will provide "another escape route for those with the motive and the means to dodge exposure."
There ought to be a difference between the right to privacy and the right to sell your image to your favorite news outlet, who may also just happen to be the highest bidder. But if there is, it's a distinction lost on the Court of Appeal.