Celebrity privacy and the development of the judicial concept of proportionality: How English law has balanced the rights to protection and interference Robin Callender Smith Queen Mary University of London Centre for Commercial Law Studies Submitted in partial fulfilment of the requirements of the Degree of Doctor of Philosophy Date submitted: 11 August 2014 Examined by viva 6 November 2014 External examiner: Professor Ian Lloyd (Southampton University) Internal examiner: Dr. Andrew Scott (London School of Economics) Passed without corrections Statement of Originality I, Robin Callender Smith, confirm that the research included within this thesis is my own work or that where it has been carried out in collaboration with, or supported by others, that this is duly acknowledged below and my contribution indicated. Previously published material is also acknowledged below. I attest that I have exercised reasonable care to ensure that the work is original, and does not to the best of my knowledge break any UK law, infringe any third party’s copyright or other Intellectual Property Right, or contain any confidential material. I accept that the College has the right to use plagiarism detection software to check the electronic version of the thesis. I confirm that this thesis has not been previously submitted for the award of a degree by this or any other university. The copyright of this thesis rests with the author and no quotation from it or information derived from it may be published without the prior written consent of the author. Robin Callender Smith 11 August 2014 2 Details of collaboration and publications R Callender Smith, Press Law (Sweet & Maxwell 1978). R Callender Smith, ‘Freddie Starr ate my privacy: OK!’ Queen Mary Journal of Intellectual Property Vol 1 No 1 April 2011, 53 – 72.* R Callender Smith, ‘Mirror, mirror on the wall….are those image rights I see before me?’ Queen Mary Journal of Intellectual Property Vol 2 No 2 2012, 195 – 197.* R Callender Smith, ‘The Missing Witness? George V, Competence, Compellability and the Criminal Libel Trial of Edward Frederick Mylius.’ The Journal of Legal History Vol 33 No 2 August 2012, 209 – 239.* R Callender Smith, ‘From von Hannover (1) to von Hannover (2) and Axel Springer AG: do competing ECHR proportionality factors ever add up to certainty?’ Queen Mary Journal of Intellectual Property Vol 2 No 4 2012, 389 – 393.* R Callender Smith, ‘Discovery and compulsion: how regulatory and litigation issues relating to intellectual property rights are challenging the fundamental right to the protection of personal data.’ Queen Mary Journal of Intellectual Property Vol 3 No 1 2013, 2 – 21.* R Callender Smith, ‘Protection from Harassment Act 1997: from Anti-Stalking Crimes to Celebrity Privacy Remedies.’ Queen Mary Law Journal Vol 5 Spring 2014, 23 – 37.* Robin Callender Smith, ‘Privacy law is madness’ Sunday Express (London, 17 April 2011) 37. Robin Callender Smith, ‘No privacy in the web age’ Sunday Express (London, 23 September 2012) 37. Robin Callender Smith, ‘Juries? I have a reasonable doubt’ Sunday Express (London, 24 February 2013) 37. * Available on SSRN Author page: http://ssrn.com/author=1708592 3 Abstract This thesis examines how English law has, and has not, balanced celebrities’ legal expectations of informational and seclusional privacy against the press and media’s rights to inform and publish. Much of the litigation that developed the English laws of privacy has been celebrity-generated by those with the financial resources to seek out and utilize privacy regimes and remedies in ways not immediately available to ordinary members of the public. The media, generally, has had the resources to present the relevant counter-arguments. Privacy protection was initially afforded to celebrities by breach of confidence and copyright. While public interest and “fair dealing” defences developed within English law, there was no underlying or consistent practical element in legislative or judicial thinking to promote a balance between the competing interests of protection and interference. That practical element, the concept of proportionality, developed in the Convention case-law of the ECtHR in Strasbourg during the 1950s. It was not until the Human Rights Act 1998 (HRA) that English legislators and the UK judicial system began to reflect and apply its consequences. Arriving at proportionate results and decisions – particularly in the realms of privacy - requires both the engagement of the rights that are sought to be maintained as well as a careful balancing exercise of these rights both internally and vis-à-vis each other. Because celebrities, with their Article 8 concerns, and the media, with Article 10 arguments, seek for their causes to prevail, the ways in which legislation and litigation now resolves matters is by the “ultimate balancing test” of proportionality. Proportionality is the measure within this thesis that is constant from chapter to chapter, highlighting, respectively, where the application of proportionality and balance might have produced different results as regimes developed historically and where new developments were needed to accommodate its requirements when it was apparently absent. 4 Acknowledgements The patience, perseverance, guidance and encouragement I have received from my two supervisors, Professor Ian Walden and Professor Christopher Millard, have been invaluable. They were the inspiration for embarking on and completing this thesis. Professor John Angel, also of QMUL’s CCLS, suggested that I audited the LLM module on the Privacy and Information Law course that Ian and Christopher taught with Anne Flanagan in 2008/2009. In 2009/2010, I completed my LLM in Computer and Communications Studies, 37 years after completing my LLB at QMUL in 1973. I would also like to thank and acknowledge the support of the academic community at QMUL/CCLS and Professors Joanna Gibson, Julia Hörnle, Spyros Maniatis, Duncan Matthews, Chris Reed and Uma Suthersaanen, Drs Gaetano Dimita and Tom O’Shea together with Anne Flanagan and Gavin Sutter. Also, beyond QMUL/CCLS, Professors Catherine Barnard at Trinity College, Cambridge, Phillip Johnson at University College Dublin, Adam Tomkins at Glasgow University and Bjørnar Borvik at the University of Bergen together with Drs Gillian Black at Edinburgh University, David Erdos at Trinity Hall, Cambridge, and Dorota Leczykiewicz at Trinity College, Oxford. Of my own PhD colleagues the camaraderie at CCLS of Marie-Aimée Brajeux, Nefissa Chakroun, Patrick Graham, Kuan Hon, Aleksandra Jordanoska, Troels Larsen, Marc Mimmler, Tatjana Nikitina, Metka Potocnik, Sarah Singer and Hélène Tyrrell and – at the City University - Judith Townend has been a tonic during the more challenging phases of the process as have been the cheerful shouts of encouragement from all my former LLM Media Law students particularly Ruth Hennessy, Linda McElwee, Isobel McGrath, and JurD Eva Ondřejová. I am grateful to Victoria McEvedy for a final read- through that identified myriad typos and inconsistencies that would otherwise have appeared. My friends - former senior in-house counsel at Express Newspapers Stephen Bacon and senior in-house counsel at The Sun and The Sun on Sunday Justin Walford - have given me the opportunity over 35 years to practise some of what is developed in this thesis thanks to the patience of Martin Townsend (editor of the Sunday Express) and Victoria Newton (editor of The Sun on Sunday). 5 Dedication This thesis is dedicated to my wife Valerie Eliot Smith BA, Barrister, who is an Associate postgraduate student at QMUL/CCLS. To her, and to her knowledge of the works of William Shakespeare, I owe the ideas for the celebrity taxonomy and the golden thread of proportionality together with all the personal elements of her inestimable support, patience, love and understanding. 6 In memoriam Roderick Symington Smith (10 November 1944 – 20 May 1962), my late cousin, who died of a brain haemorrhage shortly after being awarded a Senior Scholarship in Classics at Christ Church, Oxford, and his father – Professor Sir Thomas Broun (TB) Smith QC LLD (3 December 1915 – 15 October 1988) – Professor of Scots Law at Edinburgh University and a Scottish Law Commissioner. Part of revising and restructuring this thesis in April 2014 was completed during a four-day stay at Christ Church, Oxford, close to the rooms TB occupied there as an undergraduate. 7 Contents Statement of Originality ................................................................................... 2 Details of collaboration and publications ......................................................... 3 Abstract ........................................................................................................... 4 Acknowledgements ......................................................................................... 5 Dedication ....................................................................................................... 6 In memoriam .................................................................................................... 7 Chapter 1 Scope of the thesis, key concepts, sequence of chapters and limitations 14 1.1 Scope of Thesis ....................................................................... 14 1.2 Key Concepts ........................................................................... 17 1.2.1 Celebrity ............................................................................. 17 1.2.1.1 Taxonomy: defining celebrities ..................................