Keeping it private

The recent Naomi Campbell and Garry Flitcroft privacy test cases highlighted divisions among judges and lawyers over how much protection to afford celebrities, reports Stephen Ward

After the latest celebrity test cases involving super-model Naomi Campbell and footballer Garry Flitcroft, the reactions of solicitors on different sides in the fight for celebrity privacy suggest the next year is going to be as important as the last one has been.According to Roderick Dadak, a partner at City firm Lewis Silkin, who advises clients on both sides of these issues, 'what comes out of it is that everybody, even celebrities, do have some rights of privacy but they can forego it by their conduct'.

Mark Stephens, head of media law at London firm Finers Stephens Innocent, welcomes the two judgments as a brake on what had seemed to be an inexorable path towards a continental-style privacy law.

'We are not in a state of confusion but we are in a state of flux,' he says.The law was thrown into uncertainty with the incorporation of the European Convention on Human Rights, including the right to privacy, in 2000.

The crucial tests come in the conflict between article 8, covering privacy, and article 10, on freedom of the press.The European Court of Human Rights gives countries a wide so-called 'margin of appreciation' in how they balance the two.The biggest victory for privacy probably came in Lord Justice Sedley's Court of Appeal ruling early last year that Hello! magazine breached the privacy of Michael Douglas and Catherine Zeta-Jones by publishing pictures of their wedding reception taken secretly by a guest.This ruling came despite the fact that the actors had already sold pictures of the event to the rival OK! magazine.Mr Flitcroft, the Blackburn Rovers captain, had obtained an injunction from Mr Justice Jack which prevented the Sunday People publishing interviews with two women with whom he had affairs (see page 36).

The paper went on to publish an account, though it could neither identify them nor the footballer involved.

Last month, the Lord Chief Justice, Lord Woolf, overturned the decision in the Court of Appeal, and said the injunction would be an unjustified interference with free speech.Ms Campbell was awarded 2,500 compensation for breach of confidence after The Mirror ran an account of her attending a session of Narcotics Anonymous, which suggested the paper had inside knowledge, and 1,000 for an aggravating article.The result of all of this, according to Dan Tench, a media lawyer at the mainly defendant City firm Olswang, has been to leave 'an enormous amount of discretion' in the hands of judges in coming cases.'What you have seen in these cases is the subjective nature of privacy matters and how much they are susceptible to the prejudices of the individual judges who hear them,' he says.'You had Mr Justice Jack, the original judge in the Flitcroft case, who thought it was appropriate to impose a privacy injunction in relation to having extra-marital affairs conducted in public, and Lord Woolf by contrast extolling the virtues of a free and indeed salacious press.

That can only reflect the different personal views on the part of the judges.'Nigel Tait, a partner at the predominantly claimant firm Peter Carter-Ruck & Partners, agrees with the analysis, and says: 'I think High Court judges are keen to dish out injunctions; they are appalled by some of the journalism and particularly the sexual details.'He maintains that despite Lord Woolf's strictures on the importance of the freedom of the press, judges will continue to rule on injunctions as they see them, but will have to be more careful to set out the facts for deciding if an injunction is necessary.He says: 'The judgment leaves them a lot of flexibility.

The footballer case was a bad one to bring - it is unattractive to ask for an injunction to prevent news of your affair reaching your wife - but there will be lots of cases where the facts are more attractive and the courts will still be willing to grant injunctions.'Mr Tench says that last summer is likely to have been 'the high water-mark for privacy'.

He explains: 'At that time, the particular concern for newspaper lawyers was that the judges' presumption appeared to be against publication, which is not how we were brought up.

The way the conversation went was "why should you publish this material?" and of course in many privacy cases it is hard to justify in that way.'Even in the Flitcroft case, it is difficult to come up with compelling reasons to persuade a conservative judge why the public really needs to know he's been having affairs with these girls.

But if you start with the question "why should this information be banned?" - which has traditionally been the approach in media law - the newspaper's argument is easier.'One area where there is consensus among lawyers is that Ms Campbell's time in the witness box, where she was forced to reveal far more about her private life than had come out in print, will deter others from fighting to the bitter end.Mr Tait says: 'After that trial, I don't think people will fancy being roughed up by Desmond Browne QC for a week.' They will continue to seek injunctions, he says, but duck out of the full trial.

'There have been maybe 20-30 injunctions in the last two or three years, so the law is quite healthy,' he says.That point leaves the ball back with the industry regulatory body, the Press Complaints Commission, which Lord Woolf said in his judgment should become the first port of call.Mr Dadak says the commission should seize this chance to enforce a code of conduct on the press.There is consensus, too, that Britain will not have a privacy statute in the foreseeable future.Mr Tench says: 'In the 1980s and early 1990s, when the tabloids were much more unrestrained than they are now, two commissions recommended there should be a privacy law, but Parliament would not legislate.

New Labour is if anything even less keen to antagonise the tabloid press than the previous administration, and is , I think, even less likely to address this issue.'Nor is legislation desirable, Mr Tait says.

'We've got a privacy law - only it's called breach of confidence.

It protects private and confidential information.

There's no need for further legislation.'The Court of Appeal in the Flitcroft judgment declined to use the word 'privacy' but Lord Woolf explained that 'in the great majority of situations where the protection of privacy is justified, an action for breach of confidence now will provide the the necessary protection'.In France, where the privacy laws are much tougher, the press is tame.

'I don't think they've struck the right balance in France at all,' Mr Tait says.Few expect the existing UK law to be overturned by the European Court of Human Rights in Strasbourg.

Mr Tench says: 'There is a feeling around at the moment the dust should be allowed to settle domestically.

Until the Court of Appeal has had a few more cases before it - at the moment there have been just two - and the parameters of privacy law are defined, I think that a Strasbourg application would be premature.'For further instalments, the probable next chances for the law to develop are in two trials expected later this year: theRadio 1 DJ Sara Cox's action against the Sunday People for publication of topless pictures of herself on honeymoon, which she says were taken on private land, and the substantive hearing for Michael Douglas and Catherine Zeta-Jones.Stephen Ward is a freelance journalist