Media law

By Amber Melville-Brown, Finers Stephens Innocent, London

The book, the footballer, his wife and their lawyers

Last week, Mr and Mrs Beckham - England and Manchester United footballer David and his Spice Girl pop-star wife Victoria - sought to prevent publication of various passages of an unauthorised biography written by Andrew Morton and to be published by Michael O'Mara Books.

The couple contended that certain information in the book had been provided in breach of confidence by their former bodyguard, Mark Niblett, who had entered into an agreement with them not to 'guard and tell'.

Only a matter of months ago, and in strikingly similar circumstances, the Prime Minister, Tony Blair, and his wife Cherie Booth QC - both personalities in their own rights, but of a different ilk - were successful in preventing the publication of details about their private lives from a draft manuscript of their former nanny.

However, the Beckhams' case did not result in a judge's ruling against publication but a confidential, out of court settlement between the parties, whereby only 200 words out of the entire book were chopped.

Although it is understood that the claim against Mr Niblett for breach of confidence will continue, the Beckhams appear to have resigned themselves to the fact that they could not stop publication of various matters about their private lives.

Michael Tugendhat QC for the Beckhams said his clients had accepted 'what the law permits to be published', while Geoffrey Robertson QC for the defendants said the claimants 'accept what the law allows in a society which holds fast to free speech principles'.

He also submitted that with the incorporation of the Human Rights Act 1998 (HRA) on 2 October 2000, the starting point for the judge's deliberations should now be whether he had been persuaded that there was a compelling reason to prevent free speech in order that he should intervene.

It is understood that Mr Justice Evans-Lombe, before whom the matter was heard, accepted that there was merit in this submission which may have facilitated the settlement.

Although the courts have been considering the fundamental twin rights of privacy and freedom of expression long before the HRA was drafted, and have had an eye to the incorporation of the Act thereafter, it will take some time, and the laying down of case law before a clearer view can be established as to which, if either, will more frequently carry the heavier weight.

However, with a fondness for the US-style values for freedom of expression, lawyers in-house and in private practice argue that free speech should only be fettered where there is a compelling reason to do so, echoing the House of Lords ruling in the Reynolds case that the courts 'should be slow to conclude that a publication was not in the public interest', particularly where it involved political matters.

Although information may have been provided in breach of an agreement to protect that confidence, there may be an overriding public interest in its publication, notwithstanding that the party imparting that information may still be liable in a civil action for breach of confidence.

What is considered to be in the public eye may also be expanding.

It is possible that not only the nature of the material to be published, but also the identity of the claimant will be a vital consideration for the court.

It is at least arguable that where a person thrives on publicity and has thrust him or herself into the limelight and there makes their name and living, they should be entitled to a lesser degree of privacy than those who are involuntarily in the glare of the media spotlight.

If a person allows their image to be cultivated by articles and broadcast interviews, should they be entitled to prevent the wheels of the publicity machine from spinning when it does not provide the spin that they would like?

Not even the Beckhams would deny that they enjoy fame and publicity with revelations about their life together in print and broadcast media.

By contrast, Cherie Booth's publicity stems from her position as a respected QC and the fact that she is the wife of the Prime Minister.

To bastardise a well-known saying: 'Some are born to stardom, some achieve stardom, some have stardom thrust upon them.' It may well be the case that the right to privacy, as directed by the courts in future in light of the incorporation of the HRA, may be quite different for those who seek, those who shy from and those who have thrust upon them the prying eyes of the public.