Analyse the extent to which the confidence adequately protect of personalities in the entertainment business

Introduction I have always been interested in areas of law that are not really defined and are very uncertain, like the right of privacy and publicity. I think that these rights are also and still very contemporary and changeable in relation to our habits, attitudes and life style. After a brief introduction in regard to the concept of the right to privacy, I want to analyze how this right is regulated in UK, to identify how the Article 8 of the European Convention on Human Rights (ECHR), which guarantees the citizen the right of respecting private life, impacts in the English legal system. Then I will go on describing the evolution of the right of confidence and consider the most relevant UK law causes in this matter. My purpose is to point out different interpretations of it and the way English Courts, instead of recognizing a new right to privacy, are trying to widen the conception of the right to confidence in order to protect celebrities more than “normal” people. Right to privacy To describe what is the right to privacy, it is necessary to analyze the disorder, the intensity and the complexity of life, which together with advancing civilization, have rendered necessary some retreat from the world. It is certainly true that under the refining influence of culture, man “has become more sensitive to publicity, so that solitude has become more essential to the individual; but modern enterprise and invention have subjected him to mental pain and distress through invasions upon his privacy.” [1] Many mechanical devices work to make real the prediction that “what is whispered in the closet shall be proclaimed from the house-tops.” [2]. “It is certain every man has right to keep his own sentiments, if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friend,” [3]. But how can it be possible to run away and hide from the press, which is overstepping in every direction the obvious limits of propriety and tolerability? Newspaper enterprise and instantaneous photographs have invaded the sacred area of private and domestic life. Gossip has become a trade, which is pursued with industry as well as insolence and it is no longer the resource of the vain and of the useless. “To satisfy a prurient taste the details of sexual relations are spread broadcast inthe columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion.” [4]. In such a visionary world the law plays a fundamental rule in finding the barrier to what is permitted and what is not, to what is legal and what is not. If there is no doubt on the necessity of some such protection and on the fact that law has to secure every man from any invasion on his private life, the term privacy, in a legal sense, continues to suffer from utter definitional incoherence and its nature is nebulous and “multifaceted.” To sum up all the concepts and all the principles rotating around the term of privacy would be sufficient to answer the following (and more) [5] questions about this new and changeable right. “Is privacy a purely negative interest, a “right to be let alone”? [6] Or does it have a more positive side, constituting not only a freedom from but also a freedom to? Is it simply the opposite of publicity, or is this a false dichotomy? Does it refer only to ‘informational privacy’, the control of disclosure over personal information, or is a broader interest at stake? Is it distinguishable from the right to dignity, the right to autonomy and the right to bodily integrity? Is it a broad catch-all term referring to the “supposed preference of individuals to live their lives and maintain their personalities and affairs free from undue intrusion by, and exposure to, the outside world”? [7] Does privacy conflict with freedom of expression, or are both concepts subsets of a broader legal right to self-expression? [8] Is it a personal interest only, or can a company or other non-human legal entity also enjoy privacy rights? If it is a personal right, can it only subsist so long as the individual is alive, or does it survive death?” [9]. Unfortunately most of these doubts are still without any definitive answer because the word privacy is much used but very rarely defined [10]. It put together different concepts from “hard” personal data and qualifications through relationships, financial status, genetic identity, health, personal and sexual habits through to the extremely difficult concepts of persona space/physical privacy, personality and identity and thoughts, emotions and dreams. The difficulty to find a unique definition derives from the fact that there is no general right to privacy in English law. A kind of right to privacy exists in the UK law, as a consequence of the incorporation of the European Convention on Human Rights into domestic law through the Human Rights Act 1998. Yet what it is strictly guarantee to everyone is not a right to privacy as such but “the right to respect for (an individual’s) private and family life, his home and his correspondence” (Article 8) that as to be balanced against the right to freedom of expression under Article 10. On this regard one of the case in UK, which merits to be mentioned is Peck v United Kingdom (2003) [11]. It is an example of the protection provides by the Article 8 for a non-famous person in a public place and for that reason it also raises questions concerning the line between the “public” and the “private.” [12]. Carolina Press, 1995), Generally there is no right to privacy when a person is photographed on a public street, but certain acts -such as suicide attempts- can be inherently private, regardless of whether they take place on a public street rather than in a private dwelling. The Court said that the facts of the case were an invasion of Peck’s privacy contrary to Article 8, accepted that (i) “the monitoring of the actions of an individual in a public place by the use of photographic equipment which does not record the visual data does not, as such, give rise to an interference with the individual’s private life” [13]; (ii) that “…the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation…” and (iii) that “…the fact that we cannot avoid being photographed does not mean that anyone who takes or obtains such photographs can publish them to the world at large.”. Article 8 seems to offer the possibility of excluding the others from our private, yet even under this article everything appears blurry. Different judges expressed different opinion in favour of the protection offered by that article, even if they stated the necessity of finding some precise criteria for its application. Lord Justice Brooke noted that Article 8 of the Convention creates “a freestanding right of privacy”, but he also pointed to different terms in the Convention that lead to enforcing Convention rights among individuals. Similarly, Lord Justice Sedley took a broad approach, stating that finally the law recognizes “and will protect a personal right of privacy”, but he also stated the necessity of regulating different “degrees of privacy”, saying that “more intimate the aspect of private life which is being interfered with, the more serious must be the reasons for interference.”[14]. Rather, the court can now “recognize privacy itself as a legal principle drawn from the fundamental value of personal autonomy [15]…courts now take into account the right to respect for private and family life under article 8” yet, I have to add, in a very confusing way. Actually in the United Kingdom there is currently no single enshrined right to privacy. Thus far, attempts to introduce such a right have failed. Right of confidence In the absence of a tort of privacy [16], courts have treated confidence as synonymous with, or, at least, a surrogate of privacy and English Law has developed the concept of confidentiality, that is the right to be respected – and the right to confidence [17], that is a recognized right whose essence may be summarized as misuse of private information. But the concept of “private information” is unfortunately contradictory and there is no clear consensus among the judges in respect of the crucial question of what constitutes “private information” [18], what “private facts.” [19]. There is no any strict list, any certain border. The courts have not adequately clarified the criteria for defining what kinds of personal information would have the necessary quality of confidence. They only focus on the negative requirement and state that the information [20]: (i) must not be in the public domain: which means merely that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential; (ii) neither the information have to be trivia; (iii) must not to be against the public interest. Sometimes an injunction may be granted to restrain the publication of photographs taken surreptitiously “in circumstances such that the photographer is to be taken to have known that the occasion was a private one and that the taking of photographs by outsiders was not permitted;” other times they affirmed that there is an intrusion in a situation “in which a person can reasonably expect his privacy to be respected or the intrusion can’t be justified.” [21]. Concepts are vague and any protection is guaranteed. That happens also because the interpretation of “private information” has radically changed in few years and English Courts had to stretch the above mentioned right of confidence so much that nowadays it is difficult, even impossible, to find a unique definition of it or to difference the right of confidence from the right to privacy (or to be sure where the court will judge in favour to an injunction or to the freedom of expression.). Even the remedy for “breach of the right to confidence” [22], which is the action that has been recognised as a means by which personal privacy may be – and has been – protected, has become misleading.[23].If originally it was based on improper use of information disclosed by one person to another in confidence, now the House of Lords held that “breach of confidence actions no longer need an initial confidential relationship for a cause of action to exist and have changed it in nature.”. That means that not even a non-disclosure contract should be existing. The courts, in the absence of a valid justification for the protection of someone’s private life, struggle and work hard for finding a legal way to delimit other’s invasion in someone else intimacy and moreover the law of confidence has been expanded to a degree which suggests that those who wants to claim for privacy have to be celebrities for being given greater protection [24]. Prove of that are all the cases decided during these years by English Courts in relation to celebrities’ confidence and privacy. It seems that this area of law, which was created for the protection of the public interest, has in reality been grown for safeguarding only certain type of individuals and their “very disparate social purposes.” [25]. The new finality of the confidence and privacy law is to ensure that famous film stars or rich socialite, are not involved in publicity about their home life and their betrayals? [26] What can be done to restrain the vengeful ex-wife or the publicity seeking dumped lover? How can famous people avoid scandalous disclosures about their life? Thus what happens when a party to a celebrity relationship has to divorce? Or when he has to argue in court about children or money? Do we really care about preserving such a private rights? The result is, however, disappointing [27]. In this scenario the legal concept of confidence has spread out from the intervention of the courts to protect information of sexual nature [28] or communications between husband and wife [29] or photographs, that in certain circumstances can be very confidential [30]. The Courts appears sensible not to deprive anybody instead of their right to privacy and confidence, of their own “rights” to exploit their existent or non existent “celebrity status” with the purpose of making profit. The only restriction has become the exercise of freedom of expression used by the courts to decide where “privacy” has been invaded by unwanted publicity [31]. Confidence concepts have been used in such cases where the information didn’t have any quality of confidence but mostly an “obvious commercial interest,” reaching the point in which any information could be considered “secret” or based on inexistent “confidence agreement.”. All these arguments also arise numerous questions concerning the balance achieved by law in protecting the rights of personalities. It could be said that even privacy law has its price and until this vital matter is elucidated, the future of a privacy tort of public disclosure of private facts is likely to be unsatisfactory. Conclusion Thus while the traditional scope of protection of privacy and confidence consisted in Protection of Relationships of Confidence, the current scope of the these rights, because of the lack of appropriate remedies and definite criteria in defining the right to privacy and the right to maintain some information private, is to protect celebrities. Courts are overworked in trying to find a solution for giving the right defense and describe and limit a concept (privacy) that in UK doesn’t really exist in the legal world. The solution was basically to stretch the other and different idea of confidence, that is a right, in a way that it was possible for the judges to build and shape this right in relation to different situation and find a way to protect others’ right to living a private life even when this right wasn’t really existent. The courts have danced around the problem and the right of privacy has become the right of celebrities, but also in this case indefinite and uncertain. A number of cases involving pop stars, film stars, and other famous people, have been pleaded, mostly unsuccessfully, in equity as breaches of confidence, and, while the relationship between this remedy and a tort of privacy, has been widely acknowledged, the highest court has been presented with an opportunity to declare what the law is. It is necessary to differentiate between the right of privacy and breach of confidence. The law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. If the ability to exploit information of commercial value is assigned exclusively to an individual, the right to control the information can be said to be a ‘property right’ but this does not provide the answer as to why this information has been, or should be, protected in that way. There is perhaps an opportunity to establish a clear distinction and, whilst not dealing directly with the issue of celebrities, perhaps to indicate that the two issues, right to privacy and right of confidence, should be clearly separated in law. Note [1] Harvard Law Review, Vol. IV December 15, 1890, No. 5, The Right To Privacy, Samuel D. Warren, Louis D. Brandeis. [2] Legal Reasoning, Martin P. Golding [3]Yates, J., in Millar z. Taylor, 4 Burr. 2303, 2379 (1769) and The case of Prince Albert v. Strange (1849) I H & TW I 21–22 [4] Deciding communication law key cases in context, by Susan Dente Ross. [5] Is privacy a single, yet multi-faceted right, or a cluster of unrelated interests? Does it have substantive or merely instrumental value? Is it derivative or stand-alone? Is it a civil/ political right or does it also involve questions of economic, cultural and social rights? [6] The phrase is Judge Thomas Cooley’s, although often wrongly attributed to Warren and Brandeis who used and popularised it. See Thomas C. Cooley, Law of Torts, 2nd ed. (1888), p. 29. It is also misquoted as the right to be ‘left’ alone on a regular basis in academic articles. In the US right to privacy is a portmanteau term for a number of torts. It is comprehensive of: “(1) intrusion upon the plaintiff’s physical solitude or seclusion (including unlawful searches, telephone tapping, long-distance photography and telephone harassment); (2) public disclosure of private facts; (3) publicity putting the plaintiff in a false light; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”. [7] Clark C. Havighurst, ‘Foreword’ (1966) 31 Law and Contemp. Prob. 251, p. 252. [8] See Paul Siegel, Privacy and the First Amendment: The Development and Application (to the Gay Rights Controversy) of an Original Model of Privacy, Ph.D. thesis, Northwestern University, 1982. Siegel sets out to discern to what extent the right to privacy in U.S. constitutional and tort law is properly conceived as a first amendment issue. His model of privacy consists of three categories: (i) control over stimulus input; (ii) control over stimulus output; (iii) control over selfregarding conduct. Given this model, freedom of speech and privacy claims are seen to overlap, and Siegel describes the specific areas of overlap and uniqueness. He then applies the model to gay rights litigation, finding that some cases have a freedom of expression focus, some a privacy focus, and others contain elements of both. [9] See Priscilla Regan, Legislating Privacy: Technology, Social Values and Public Policy (Chapel Hill, NC: Univ. of North Chapter 8; Ferdinand Schoeman, Privacy and Social Freedom (Cambridge: CUP, 1992). [10] See http://www.publications.parliament.uk/pa/cm200203/cmselect/cmcumeds/458/458w73.htm [11] Mr. Peck, a man in his forties who had been suffering from severe depression, was filmed by a CCTV camera on a public street, walked alone, carrying a kitchen knife, and attempted suicide by slashing his wrists. The Council decided to release the footage and the film was broadcast several times on the television without any protection of Mr. Pick’s image, who was easily recognizable. Peck applied to the European Court of Human Rights invoking Article 8. [12] See The Cambridge Law Journal (2006), 65:3:606-635 Cambridge University Press PRIVACY IN PUBLIC PLACES, by N.A. Moreham. “One of the most difficult questions facing English courts as they develop the common law right to privacy recognised by the House of Lords in Campbell v. MGN Ltd. is whether and, if so, when a person might have a reasonable expectation of privacy in a public place. Should an individual have a cause of action if she is photographed as she leaves her mother’s funeral or as he receives medical attention after an accident? Or should there be an absolute rule which says that there is no privacy in a public space? Recent decisions in England and the European Court of Human Rights (ECtHR) suggest that it is no longer an answer (if it ever was) simply to say that the disclosure concerned something which took place in public. A more difficult question therefore remains: if the existence of a privacy interest does not depend on the nature of the space in which claimants find themselves, how do we determine whether a person does have a legitimate privacy interest?”. [13] App. No. 32200/96, decision of January 14th 1998, para. 59. [14] He accepted that “a right of privacy had emerged from the breach of confidence cases and that the law no longer needs to show a pre-existing confidential relationship between intruder and victim.” [15] See Copyright (c) 2002 Boston University International Law Journal Boston University International Law Journal NOTE: TOWARDS A MEANINGFUL RIGHT TO PRIVACY IN THE UNITED KINGDOM Fall, 2002 20 B.U. Int’l L.J. 393, by Lauren B. Cardonsky. [16] Concerns and Ideas about the Developing English Law of Privacy (and how knowledge of foreign law might be of help), A research project undertaken by the Institute of Global Law (Basil Markesinis1, Colm O’Cinneide2, Jörg Fedtke3 and Myriam Hunter-Henin4) [17] See http://www.guardian.co.uk/media/2006/dec/11/mondaymediasection9; Mr Justice Eady, drubbing by the House of Lords in the case of Jameel v Wall Street Journal, stated: “Since it is not yet recognised that English domestic law offers an enforceable right to privacy as such, it [the claim] has been put on the basis that any such communication would be a breach of confidence.”. [18] See Naomi Campbell v MGN Ltd, [19] The House of Lords in Naomi Campbell v MGN Limited has offered a less than clear guide on these central questions. [20] see Lord Goff in Attorney General v. Guardian Newspapers (1990). [21] ‘Private Facts’: Is Naomi Campbell a Good Model? By Raymond Wacks. [22] See http://openlearn.open.ac.uk/rss/file.php/stdfeed/3472/formats/W100_6_rss.xml; breach of confidence can be used in many situations to protect private information. For example lawyers must not disclose to third parties information given to them by their clients; doctors must preserve the confidence of their patients (except in exceptional circumstances where notification of the police is permitted); Also the law of breach of confidence has been used extensively to protect sensitive commercial information and trade secrets. Employees owe their employers a duty of confidence, either by virtue of a term in a written contract or as a result of an implied term of fidelity and loyalty. [23] See http://www.mwe.com/index.cfm/fuseaction/publications.nldetail/object_id/048C44D4-A8A4-407D-A648-3823EC86D829.cfm [24] The origins of the action for breach of confidence and the characteristics that the right should have are described in the case Coco v. A N Clark (Engineers) Ltd (1969) where is stated that for being protected the information must: (i) be confidential in nature, have “the necessary quality of confidence about it”. This means that the information must be secret or confidential; (ii) “have been imparted in circumstances importing an obligation of confidence”; (iii) have been used or disclosed in an unconscionable manner. There must be an “unauthorised use of the information to the detriment of the party communicating it.”. [25] P Finn, ‘Equitable Doctrine and Discretion in Remedies’ in R Nolan, W Cornish, J O’Sullivan and G Virgo (eds), Restitution — Past, Present and Future: Essays in Honour of Gareth Jones (Hart Publishing, Oxford 1998) 251, 272. [26] Family Law[1999] Fam Law 779, 1 November 1999, Confidentiality And The Celebrity Client, Dick Pears. [27] The House of Lords in Naomi Campbell v MGN Limited has offered a less than clear guide on the central question of what constitutes ‘private facts’ in a case where they have been gratuitously publicized. [28] In a case in 1988, Stephens v Avery, the Court recognised that a duty of confidence could arise in relation to the details of a sexual relationship between two women, explicitly recognized that in relation to confidential information “the concern of the law is to protect the confider’s personal privacy ”and observed that “to most people the details of their sexual life are high on their list of those matters which they regards as confidential.”. [29] In Argyll v Argyll (1965) the Court held that “communications between husband and wife (relating to private life, personal affairs or private conduct) and disclosure of details of intimate relationships by a party to the relationship” were capable of being confidential information. The decision has been extended in other cases to cover disclosure of details of a relationship outside marriage by one of the parties to the relationship like in the case Barrymore v News Group Newspaper (1997). [30] I’m referring to the case Douglas and Others v Hello! Ltd (2001). [31] Addressing the role of the law of confidence, Sedley LJ states: “The courts have done what they can, using such legal tools as were to hand, to stop the more outrageous invasions of individuals’ privacy; but they have felt unable to articulate their measures as a discrete principle of law.