Privacy and the Press.

Vol. 14 No. 9 (September 2004), pp.728-731

PRIVACY AND THE PRESS, by Joshua Rozenberg. Oxford: Oxford University Press, 2004. 288pp. Hardcover $39.95 / £18.99. ISBN: 0199250561.

Reviewed by Christopher Shortell, Department of Political Science, California State University, Northridge. Email: cshortell@csun.edu.

In PRIVACY AND THE PRESS, British journalist Joshua Rozenberg sets out to explore the inherent tension between the right to privacy for individuals and the freedom of the press to report what it deems is in the public interest. Rozenberg examines a host of recent cases in Great Britain and the European Court of Human Rights relating to both personal privacy and freedom of the press to determine just where the right to privacy stands today. Rozenberg does a good job of making this complicated area of the law comprehensible to a lay audience and offers a thorough review of the relevant doctrines. Rozenberg is very upfront about his own biases as a journalist in considering this issue, but at times they do seem to keep him from asking some of the more difficult questions about the proper balance between freedom of the press and privacy.

Rozenberg’s inquiry is prompted by the adoption of the Human Rights Act in 1998, requiring courts in the United Kingdom to “give effect to all other legislation in a way that is ‘compatible’ with the European Convention [on Human Rights]” (p.3). This includes Article 8’s assertion that “everyone has the right to respect for his private and family life” and Article 10’s protection of freedom of expression. Rozenberg wants to know how courts reconcile freedom of expression with respect for a person’s private and family life. To answer this question, the book reviews privacy and press related cases at both the domestic and international levels.

After a brief preface, Rozenberg begins Chapter 1 with an examination of the relief that traditionally existed in British law for those alleging privacy violations. Most prominently, he discusses the common law tort of breach of confidence. That tort provides remedy where the information itself has “the necessary quality of confidence about it,” has been “imparted in circumstances importing an obligation of confidence,” and where there was an “unauthorized use of that information to the detriment of the party communicating it” (p.8). Rozenberg demonstrates that public figures have experienced only occasional success with the doctrine. Footballer Garry Flitcroft, caught cheating on his wife with both a lap dancer and a nursery school teacher, found little sympathy in the courts when he alleged a violation of confidence by his former mistresses. Not even Gordon Kaye, a British television actor, was successful in his claim to block publication when a tabloid photographer and reporter entered his hospital room shortly after emergency brain surgery and took pictures of his wounds at a time when he was in no state to give informed consent.

Since the Human Rights Act came into effect, Rozenberg argues that the courts have been pressed to turn the law into a [*729] “blockbuster” tort of privacy. Lord Phillips, the second ranking judge in England, used his Bentham Club presidential lecture to state his position that “either the courts or the legislature are going to have to establish a tort of invasion of privacy if this country is to comply with its . . . obligations under the European Convention on Human Rights” (p.7). In Chapter 2, Rozenberg details the back and forth between various cases and appeals regarding how far judges can go in creating a new tort of privacy. In 2000, Catherine Zeta-Jones and Michael Douglas successfully sued Hello! magazine, alleging a breach of confidence when it published unauthorized photographs from their wedding. Two teenagers who were convicted of murdering a 2-year-old in 1993 were successful in preventing publication of their new identities when they were released from prison at age 18. Naomi Campbell received a favorable ruling for damages against a tabloid publishing details of her treatment for a cocaine addiction at Narcotics Anonymous. At the same time, a woman and her son who were invasively strip-searched by prison officials were unsuccessful in their suit. The judges in that case explicitly rejected any freestanding law of privacy. Rozenberg concludes that the law of confidence does offer some remedy to individuals whose privacy was violated, but that it is not particularly well suited to serve as a springboard for sweeping privacy protections.

After completing his review of the existing British law regarding privacy, Rozenberg turns his attention to European law. Chapter 3 consists of a thorough study of the implications of Article 10’s protection of free expression as well as its numerous exceptions. Rozenberg uses various decisions of the European Court of Human Rights in Strasbourg to establish the reach and limits of the doctrine. Despite some setbacks for free speech, the press has, in general, been very successful in Strasbourg at establishing clearly protected actions. Rozenberg concludes that British judges have largely incorporated these decisions into pre-existing common law with little dramatic effect.

Chapter 4 examines the European Convention’s Article 8 protections of privacy. Rozenberg finds a broad doctrine, but one that certainly has significant limits. A female police officer that alleged sexual discrimination discovered that her phone calls to her lawyers from work were monitored by her supervisors for the purpose of building a defense against her suit. The European Court found in favor of the officer, concluding that the actions constituted a violation of her right to respect for her private life which domestic law did not adequately protect. Four gay officers of the RAF successfully sued the British government in the European Court for conducting investigations into their private sexual lives and discharging them from the military as a result. A suspected member of the IRA, however, was not successful in her suit. She alleged a privacy violation when the British Army detained her and took her picture without her consent or knowledge. The European Court concluded that, while the actions interfered with her right to respect for her private and family life, in these particular circumstances, it was a necessary measure in a democratic society. [*730]

In Chapters 5, 6, and 7, Rozenberg looks at “responsible journalism” and what restrictions the media face in Great Britain. Chapter 5 focuses primarily on cases regarding the revelation of sources. Journalists can protect their sources only if they make the argument that the source revealed sensitive information in the public interest. Rozenberg also reviews the powers of the Press Complaints Commission (PCC), an industry-funded independent media watchdog, the aim of which is to “stave off moves towards what it describes as ‘any form of legal or statutory control’” (p.158). The PCC does not hesitate to rebuke newspapers that violate its codes, but it is limited in the remedies it can provide. Nonetheless, Rozenberg still views industry self-regulation as “better than any of the alternatives on offer” (p.164). Chapter 6 traces the effect of libel on journalism, particularly in light of the U.S. decision in NEW YORK TIMES v. SULLIVAN. The movement towards qualified privilege for journalists is an improvement in terms of press protections, but still falls significantly short of the protections offered by SULLIVAN. Essentially, journalists must meet judicially defined criteria of responsible journalism in order to receive qualified immunity from libel suits. Chapter 7 seeks to flesh out the standards of responsible journalism by following a series of cases emerging from a press expose of Dr. Grigori Loutchansky as an alleged mafia boss. Rozenberg argues that the newspaper failed to meet the criteria of responsible journalism, and their sanctioning by the courts demonstrates that effective protections are already in place.

The final chapter attempts to both review other countries’ laws on the subject and tie up the various threads of arguments made throughout the book. While it only partially succeeds on the latter goal, the book does offer a succinct review of privacy law in some key countries, including France, Germany, and the United States. Rozenberg finds much more expansive privacy laws in other continental European countries and cautions against their application in England. He points out as an example of excess France’s privacy provisions that permit the award of damages after publication “even if no harm has been caused and even if none of the parties has any link to France” (p.230). Rozenberg also details the emerging area of criminal voyeurism laws, professing skepticism about their appropriateness. He concludes the chapter by suggesting that industry self-regulation, while not ideal, is far better than either a legislative privacy act or judicial development of a privacy tort. As he says, “privacy good; free press better” (p.254).

The book does an admirable job of wading through a very complex area of the law with numerous facets. The focus on contemporary cases, many with recognizable celebrities, makes the subject come alive. Students at American universities may not find it as relevant, but its target audience in Great Britain should find it very timely. It also offers an interesting case study of the impact that England’s participation in the larger European community is having on its domestic law and the ways in which countries can incorporate international standards.

However, the format and structure of the book make it difficult at times to follow the thread of his argument. Rozenberg [*731] will introduce a case in one chapter and return to it in another and then provide follow-up in a third. At times the reader needs to juggle four or five cases at once, which can prove confusing. More seriously, Rozenberg may be a victim of being overly cautious about making his point. He professes that “this book is not a polemic” and indeed it is not, despite Rozenberg’s personal views. However, the book does suffer from some unsatisfying arguments made without the deeper inspection that could bring some of the more difficult issues directly to the forefront. For instance, Rozenberg contends throughout the book that freedom of the press is important and necessary for a functioning democracy. That is certainly a reasonable position and one shared by many. The challenge presented by balancing privacy and the press, though, is whether learning about an athlete’s extramarital affairs is important and necessary for a functioning democracy. Rozenberg points out the argument of the Court of Appeal in A v. B PLC that “footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example,” but offers little other discussion on the logic and persuasiveness of that claim (p.54). Likewise, he does not spell out a developed argument of why pedophiles do not deserve a right to privacy after serving their prison terms. There are certainly powerful arguments to be made in favor of that position, but it is not a conclusion that should safely be assumed, as recent debates over sex offender registries in the United States demonstrate. Overall, while the book does not offer much depth in the way of theoretical considerations of privacy versus the press, it does offer a welcome overview of the current British case law and highlights a number of the legal challenges presented by the move to increase privacy protections.

CASE REFERENCES:

A v. B PLC, QB 195 (2003).

NEW YORK TIMES v. SULLIVAN, 376 U.S. 254 (1964).

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