THE MEANING OF ‘PRIVACY’

Not every matter that a complainant considers an invasion of pri­vacy actually constitutes an invasion into the private sphere of life. The Calcutt Committee discussed the meaning of ‘privacy’ at great length, considering the parameters set by the laws of various other countries.

The report went on to note that the right to privacy ‘could include’ protection against: (a) physical intrusion; (b) publication of hurtful or embarrassing personal material (whether true or false); (c) publi­cation of inaccurate or misleading personal material; and (d) publi­cation of photographs or recordings of the individual taken without consent. Although the Committee did not expressly acknowledge such, three of these four categories roughly correspond to those rec­ognised by American privacy tort jurisprudence: intrusion, publica­tion of private facts, and false light. As regards the first ‘photography’ element of the fourth Calcutt category, it is similar in some instances to the American ‘appropriation’ type of privacy invasion which redresses the grievance of a person whose image has been exploited for commercial purposes. Despite the Calcutt Committee’s apparent dalliance with American privacy concepts, these rather distinct types of privacy invasions are not reflected in the Code of Practice which was enforced by the Press Complaints Commission. As reflected in its quotation above, clause 4 of the Code speaks more generally of ‘intrusions and inquiries’ into an individual’s private life being unacceptable. It goes on to enumerate instances when such intrusions may be justified as in the public interest, but it does not provide further guidance as to what manner or sorts of intru­sions or inquiries are objectionable.

Both the National Heritage Committee of 1993 and the Government’s consultation paper discussed the meaning and importance of privacy as an aspect of human personality. The Code of Practice does not reflect these categories. As noted in relation to the Clare Short case, privacy may refer to either or both of psychic privacy and physical privacy. These may be invaded either by inquiries into a personal matter, as in the Short case, or by publica­tion of personal information.

The sort of information considered sufficiently private to be the basis of litigation is difficult to discern from its cursory litigation. Not a single adjudication of a clause 4 complaint engages in any substantive discussion of what is sufficiently ‘private’ to support a claim on this basis. One could deduce that the Commission deemed certain matters sufficiently private simply because complaints based on disclosure of these matters have been upheld under clause 4. Of course, if the Commission had not actually considered the privacy implications of such disclosure, this may be presumptuous and inappropriate. Still, without more explicit guidance from the Commission, it is all that the media or the public have on which to base a judgment of the Commission.

Consider the Princess Eugenie application, in which the Commission held that The People's publication of nude photos of the infant princess breached clause 4. In response to the newspaper’s defence that the photos were ‘charming’ and ‘natural’, published ‘good-naturedly and affectionately’, the Commission responded that such claims were irrelevant, as was the offensiveness of the photos, because they were simply an invasion of privacy.

What the Commission failed to recognise is that issues of offen­siveness and naturalness may be evidence of the ultimate issue of privacy invasion. Under the ‘publication of private facts’ prong of American privacy law, for example, a matter disclosed must be suf­ficiently private to ‘violate ordinary decencies’ or ‘offend’, in order to give rise to a cause of action.

In adjudicating a complaint by the then leader of the Labour Party, Mr Neil Kinnock, and his daughter, who complained about an arti­cle in Today reporting a ‘dust-up’ between Mr Kinnock and four youths who were taunting him as he was ‘ticking off’ his daughter, the Commission held that the story did not breach the Code of Practice. No particular clause of the Code was ever cited; however, several references were made to the lack of ‘intrusion into privacy’, so it is fair to infer that it was decided on clause 4 principles. Though the Commission did not expressly find such, it might well have concluded simply that the matters published were not suffi­ciently ‘private’ or ‘personal’ as to constitute an invasion of privacy. Instead, it obscured this threshold issue by also noting that politi­cians seek and must expect regular exposure to the press, implying that ‘public interest’ had more to do with the decision than perhaps it should have.