Many of us naturally assume that individual humans have the right to some degree of privacy. Yet, when it comes to the privacy of public figures, the legal framework provides a far more complicated answer. For the fourth episode of season seven, host Neema Jayasinghe and panellist Olivia Chen lead a discussion on the human rights of public figures, including issues of definition and the conflicts between privacy and free speech; Prof. Gavin Phillipson – our guest for this week – helps us to explore this difficult tension. Do public figures have a reasonable expectation of privacy? If so, should the public interest in disclosure then override their right to privacy? As an expert in freedom of speech and media freedom in English law, Gavin offers helpful and practical insight into these rather intricate issues.
Gavin begins by providing us with his thoughts on the reasonable expectation of privacy held by public figures, and how this may differ from ordinary citizens. In the US, public figures tend to lose their right to privacy completely, except in extreme circumstances. However, in the UK, this is a factor that courts will take into consideration alongside many others, and being a public figure does not imply an automatic loss of privacy. Gavin notes that in some cases, a public figure role may not even be relevant at all to the courts.
‘The press argues that if you decide to publicise it, you cannot complain if other people discuss it or report on it.’Prof. Gavin Phillipson
By making a public statement about yourself, say regarding your health, you may no longer have a reasonable expectation of privacy on that matter. However, an explicit declaration is not always required. For example, reality TV show participants consent to a considerable intrusion into their private life, and must also have a reduced expectation of privacy. While not public figures, per se, these individuals have deliberately placed their private life into the public domain.
This discussion begs an interesting question: What exactly is a public figure? Gavin states that the term itself tends to be quite vague and circular. As such, popular definitions tend to say broadly outline a public figure as any individual who plays a role in public life. This produces two key groups of people. First, we have major public servants, politicians, or any individuals who wield power within the country. Second, we have actors, sportspeople, and other celebrity-like figures. While not precise or necessarily helpful, this definition is used by most countries in privacy and defamation claims.
‘The definition expands to include both a candidate for public office and a pop star who has received a lot of attention in the press.’Prof. Gavin Phillipson
In terms of a reasonable expectation of privacy, there are both objective and subjective approaches to deciding whether an individual could have assumed a matter to be private. Gavin asserts that earlier cases tended to be rather objective, but there is now an emphasis on mixed approaches that increasingly take into account the characteristics of a claimant. Courts will recognise that you may be sensitive about a particular topic, be it your sexuality, health, family, or any other facet of your life. But, this sensitivity still must be reasonably foreseeable to others, and people will not be found liable for invading someone’s privacy if this is not the case.
‘Courts may say there is no reasonable expectation of privacy if other people cannot reasonably guess you would feel this way.’Prof. Gavin Phillipson
A clear example of this idiosyncratic approach is that of Naomi Campbell and Mirror Group Newspapers. Campbell was photographed leaving a rehabilitation clinic and these images were published in the press. Campbell then brought a case that bridged a gap between a breach of confidence and misuse of private information. The Court of Appeal used a dryly objective test, including the ‘highly offensive’ formula, which tests whether it would be highly offensive to have the information in question publicly revealed.
The Court of Appeal arguably misapplied this test, instead examining offensiveness to a hypothetical reasonable reader. Once taken to the House of Lords, it was found that there was good reason to shift away from common legal objective tests. Instead, Campbell’s own perception would be considered. To this end, the issue was not really whether something was offensive, but whether it unreasonably intrudes into her private life. The case was extremely interesting in the way it approached this question, balancing Campbell’s public figure status alongside public interest.
‘Campbell had made a point of never having used drugs, so the press had a right, of sorts, to reveal this was a lie.’Prof. Gavin Phillipson
In terms of precedent, this case revealed that the test of high offensiveness should be replaced entirely. This test depends on the seriousness of the intrusion, so is somewhat contained within looking at a reasonable expectation of privacy, and balancing this against public interest. This test was essentially side-lined and has rarely appeared in domestic case law following Campbell’s case. Though, it may be of interest to note that the test is still utilised in the US, where the right to free speech under the First Amendment tends to prevail over nearly all privacy and defamation cases for public figures.
‘Public interest is not just what interests the public.’Prof. Gavin Phillipson
The aforementioned question of public interest often proves quite complicated. Gavin asserts that in the courts of the UK and Europe, a judge may be prepared to say that intimate knowledge of an individual’s sex life is no business of the public. Thus, public interest is not just general public curiosity, but only what the public has a legitimate interest in knowing. The controversial nature of this test is that individual judges are deciding on behalf of others, who may very well use such information when voting, for example. In the US, courts tend to say that citizens are entitled to make their own decisions on these matters
This logic is more easily applied to elected officials but becomes more problematic when applied to general celebrity figures. In these instances, the press tends to run a ‘role model’ argument. This argues that celebrities influence the way people behave so the public has a right to know details of their intimate life that contradict their image. In these cases there is often no evidence cited, rather role model status is asserted in a ‘common sense’ fashion. Though the press has won numerous cases on this basis, it is not always clear how the public benefits.
‘The press relies on the idea of a public interest in correcting mistaken impressions about individuals, but I am not sure this is often true.’Prof. Gavin Phillipson
Our discussion then pivots slightly to analyse the role of methods used to attain information and how these contribute to what is public. In 1991, actor Gordan Kaye suffered a significant head injury and two reporters posing as doctors took images of him in the hospital. This case expressed the view that there is no common-law right to privacy in English law and is famous for effectively demonstrating the need for such a right. Gavin, therefore, argues that the method used to gain information is always considered an important factor by courts in the UK and EU.
‘If you have to resort to intrusive and surreptitious methods to gather information, then the individual must have been trying to keep that information private.’Prof. Gavin Phillipson
Yet, if you are photographed walking down the street, there is no privacy breach as this is what anyone present on the scene would have observed. While the US is rather extreme in this idea, English law identifies that private things can very well happen in public places. Gavin offers the case study of a conversation between good friends in a popular restaurant. If two friends whisper a piece of information to one another, and a hidden microphone records it, the method of attainment is still intrusive despite the public setting.
To close, Gavin informs us of the recent controversy around the government’s plans which attempt to alter the relationship between freedom of speech and privacy in the UK through the Bill of Rights Bill. A particular focus of this debate surrounds the privacy rights of criminal suspects yet to be found guilty. Gavin mentions the case of Cliff Richard, where the BBC live-streamed Richard’s house being searched in connection to a crime he was never arrested nor charged for. These instances are incredibly damaging to individuals and are a cause for concern for many when looking at possible changes in approaches to privacy.
Prof. Gavin Phillipson is a Professor of Law at Bristol University Law School. He is the Visiting Fellow at the Bonavero Institute of Human Rights at Oxford University, and has been published widely in top law journals in the UK, Australia, Canada, and the US. Gavin was also co-author of the leading text ‘Media Freedom under the Human Rights Act’.
Olivia Chen is a third-year Philosophy student at Selwyn College. She is interested in examining human rights issues from the intersection between their philosophical basis and legal manifestations in both domestic and international spheres; her dissertation examines people’s rights to privacy and the relationship of privacy to other basic human rights.