Much as they shrink from admitting it, journalists and lawyers do have a lot in common. Both professions share a commitment to research, a sense of historical precedent, the need to strike a balance between competing sources and a commitment to expressing the findings with as much clarity as each case will allow.

These similarities get submerged whenever the law and the media come into conflict. In Britain, one of the most keenly contested areas of conflict has been over the ‘right’ of celebrities – on both privacy and commercial grounds – to control and package valuable aspects of their image, and their private lives. In the past, the rich and famous may have used high walls and hounds to keep the media and public at a distance. Now, increasingly, they use the courts - both to protect their commercial agenda, and for the intimidation value of the costs involved.

Among the most significant of these cases was the long-running saga of the wedding photos of Michael Douglas and Catherine Zeta Jones. Briefly, the couple sold the exclusive rights to their wedding day photos for one million pounds to OK magazine. Hello magazine let their disappointment about this arrangement be known, and an enterprising freelancer posing as a waiter snapped the happy couple on their happy day, and sold the results to Hello. Eventually, Hello paid a small amount to the Douglasses for violating their privacy – and by a very narrow margin, the Law Lords found that OK could extract very substantial costs from Hello for breach of confidentiality.

Uh-oh. By doing so, was Britain's highest court conceding that significant aspects of the private lives of celebrities are legally equivalent to trade secrets, and worthy of much the same protections as when copyright is infringed ? If so, this could make the law the enforcement arm of the character merchandising of celebrities.

Heading down that road would be a major concern to the media and to the public – especially now that political campaigns have become increasingly presidential, and personality driven. Lord Hoffman did explicitly deny in his majority ruling that the courts were thereby creating an ‘image right’ – but that did seem the logical implication of his findings. (The very recent case where the author J.K. Rowling and her husband failed to block the publication of a long lens photo of their baby, taken while Rowling was out walking the pram on a public street, doesn’t really do much to re-balance the equation. All it meant was that even celebrity parents cannot re-define a public street as a private setting, on behalf of their 18 month old child.)

Among the Law Lords dissenting in the OK/Hello showdown was Lord Robert Walker of Gestingthorpe. Lord Walker was also on the bench in the significant Law Lords' ruling in June on the use of control orders and secret evidence against terrorism suspects – a subject Werewolf editor Gordon Campbell had canvassed in a long interview last November with Lord Bingham of Cornhill, the most eminent British jurist of his generation. The Bingham interview is available here.

On August 14, Campbell interviewed Lord Walker about the emerging law of privacy in Britain, the use of secret evidence in the wake of the control orders decision, and the New Zealand legislation surrounding the Rugby World Cup.

Campbell: On October 1st you will be joining the new UK Supreme Court in its new building. I take it you were not one of the two anonymous stalwarts among the Law Lords who were reported last December in the telegraph as being dismayed at the advent of the Supreme Court ?

Walker: I am in principle quite a strong supporter of having the new Supreme Court. But at the same time, now that we’ve got to the end of the time of the Law Lords, it is impossible not to feel some regrets at the passing of what is an old tradition. I believe that all of those going to the new court are very positive about it and accepted that this is an irreversible change that is going to happen. I don’t know who the two anonymous stalwarts were. It may be that they were among those not going to the new court.

Campbell: The main argument for the change is that constitutionally, it is not a good idea to have a legislative function located within a political arena. That seemed the prime reason advanced for tidying up the situation.

Walker: Yes, and if I may so, ‘tidying up' is about right. I don’t think any of us have felt doubt about our judicial independence being challenged by the fact that we are have been formally simply a committee of the upper house of the legislature. At the same time, it is certainly an untidy arrangement, and one that would be impossible to justify as a matter of principle. I’m glad that it is being tidied up. But it’s being tidied up at the loss of a great brand name – the Law Lords - and it happens at very considerable cost. The figure of 40 million pounds has been mentioned. Which could well have been spent –many of us think – more usefully on other parts of the hard pressed justice system. There are many, many courts which desperately need refurbishing. And I believe it's right to say the 40 million is not in addition to the Budget – it has come out of the civil justice courts' budget.

Campbell: Earlier this year, you were part of the unanimous Lords finding that terrorism suspects subject to control orders have an absolute right to be told the substance of the case against them. I wonder if you can spell out the implications of this ruling for the use of secret evidence ?

Walker: I think it is a very important decision. That is one of the reasons why we sat in the committee of nine [Law Lords] on the case. I’ve been a Law Lord for seven years, and I have sat in a committee of nine only six times. We sit nine only in cases that are regarded of particular constitutional importance. This one is, because it does really go to the heart of the rule of law as to whether a man can be imprisoned - or if not in prison subject to a control order which comes very, very close to deprivation of liberty - otherwise than by due process It is that basic, I think.

Campbell: And just to be clear as to what the test now required is - the nature of the allegations now have to be revealed such that the suspect is able to brief the special advocate adequately, and conduct a defence ?

Walker: That’s right. And it may be in practice, the end of the special advocate regime has been ordained by this decision. I don’t know – I have absolutely no inside knowledge as to what plans the government has for its next move. But it is really spelled out in the judgment of the Grand Chamber of the European Court of Human Rights – which was – as you said – to the effect that unless the suspect is able to understand and attempt to meet the substance of the case against him – and is given the substance of the evidence rather than a few generalities – that it is not a fair trial process.

Campbell: And the provision of a special advocate is not of itself sufficient to ensure fairness ?

Walker: No. Because the special advocate, as you know, is not permitted unless exceptionally, and with the leave of the court, to take instructions from his client after he has seen the closed material. That is very different from any normal legal process whether civil or criminal.

Campbell: You touched before on the implications for the special advocate system. Ten years on from the embedding of the Human Rights Act in British law, we seem to be evolving in this area and with respect to privacy law as well, down a quite similar path. We start with an approach based on the facts of each case, then a pattern of rulings emerges, then we get a Strasbourg adjudication, then the establishment of absolute principles. Do you think the situation is evolving now to where, special advocates will have to be allowed, albeit under strict conditions, to talk to their clients after the secret evidence has been viewed ?

Walker: I think if the special advocate procedure is to be retained at all, that that would have to be the answer. Otherwise I don’t think the requirements spelled out by the Grand Chamber would be met. I would question whether Strasbourg has really introduced any absolutes.* [see footnote] I don’t think this is an area where it is at all easy. One can say at a very high level of abstraction there are absolutes that no-one should be deprived of liberty except by due process. At the same time, it must be recognized the very, very special problems of trying to protect against terrorism as it is today – that call for special security measures, that call for methods of surveillance either by security informants or by electronic means which the security services are understandably reluctant to reveal in toto.

Campbell: Even so, it doesn’t seem beyond the skill of a QC serving as a special advocate to conduct a briefing interview with the suspect without divulging the operational secrets of the security services. It has always seemed part of the mystique of the sanctity of secret evidence – this related assumption that a QC would be unable to have such communications without spilling the beans. Isn’t that something of a slur on the quality of the QCs involved?

Walker: I think the QCs involved do show very high standards of professionalism in trying to do an almost impossible job. Part of the trouble, I think, is that very few of us – including top judges – really understand how the security services work. The mystique of the security services is that say as little as possible about how they work. Although we do know on past experience of for instance internment during the War, or with internment during the worst of the Northern Ireland troubles, that very often the security services get it wrong and spend a lot of time chasing after people who are now known not be involved at all. Its is an area which most judges have a feel of what is necessary or possible while still preserving due process.

Campbell: Finally, moving down from abstract principles – on 31 July, when the High Court revoked an ‘unlawful’ control order, the Home Secretary simply issued a new control order without divulging any further details of the case. Doesn’t this make a mockery of both the Law Lords ruling and the Strasbourg decision that influenced it?

Walker: I’m not sure about the details of that case. A control order basically may be set aside on two main grounds; one, because it is so draconian in its terms as to amount to a deprivation of freedom and infringe article 5 [of the European Convention on Human Rights] The other would be that the special advocate procedure as it applied in that case had failed to meet the fair trial requirements under article 6.

Campbell: I think the revocation was based on the new standard [ regarding access to the secret evidence] not being achieved. The suspect was given NO information about the substance of the allegations. Therefore, the control order failed – but a new control order was then issued on the same terms. Which would then require a round of similar proceedings to knock it down again. So current practice seems to involve a kind of revolving door – whereby both the substance and the spirit of the Law Lords ruling seem to be being basically ignored by the government.

Walker: I really don’t know enough about the details of that case I’m afraid, to comment any more.

The Privacy of Celebrities

Campbell: Working backwards, has privacy now become an intellectual property right, one governed by the kind of laws that manage copyright?

Walker: I don’t think it has. I don’t think it ought to. Although there does come a point where they begin to overlap, they are two quite different concepts. I think we should do all we can to keep them as clear as possible. Privacy is concerned with very personal things, with human dignity. Intellectual property is concerned with property rights that are capable of being turned into money. The point at which they overlap of course, with the celebrity – whose very name and personality and face may be capable of being turned to account.

Campbell: Yes. And any celebrity has an obvious economic and career interest in managing and parcelling out aspects of their privacy. The question is, to what lengths should the law go to safeguard that process ?

Walker: I agree.

Campbell: I may be being unkind to Lord Hoffman [who wrote the final OK/Hello majority decision] but it seemed as if he reached conclusions whose implications he then sought to deny. He seemed to be saying – yes, this element of the Douglas' private life is a commercial, marketable item reflected in the one million dollar market value attached to the wedding photos and he felt that commercial contract was something the law should protect. Yet he also denied that an ‘image right’ had been created. Personally, I just can’t see how he can avoid the conclusion that some aspects of privacy are now to be treated, in the commercial sphere, as trade secrets.

Walker: I have to say I very much agree with that. Lord Hoffman is some-one for whom I have the greatest possible respect. He’s been a role model to me for years and years. Yet on that particular point I did disagree with him, in the Douglas case. Lord Hoffman has always been a master of both principle and practicality – and he took the very practical view that if something is worth a million dollars – or whatever it was – it must be capable of being a property right. That is something that with respect, was working backwards from the fact that there is a lot of money involved, to whether there is in fact a legal principle.

Campbell: Exactly, which is the point you made in your dissent. That this should be resolved by legal principle, and not by the going market rate.

Walker: That’s right.

Campbell: Therefore…I wonder if you can shed light on the legal principle in one of the main findings to the contrary, which was also cited in the Michael Douglas case. Namely, RCA Corporation v Pollard. Here was RCA, who had an exclusive contract with the Elvis Presley estate for the marketing of Presley records, sueing a bootlegger who had been peddling some Elvis live concert recordings. Yet, the court found that the exclusive contract still existed, and all that the bootlegger’s actions had done was reduce its value. Now I would thought most people would think – but isn’t it precisely the function of the court with respect to a valid contract to protect its value, and the exclusivity that made it valuable ? Why did the British courts decide the value of such a contract was not something it should protect?

Walker: Yes. RCA v Pollard is an important case. Quite a technical case, though it is concerned with what is the boundary between what is regarded as a substantial intellectual property right that belongs to someone – and is to be defended against all the world – and the much more slippery area of what is sometimes called the economic tort of interfering in other people’s contracts…Basically, I think the law was saying in terms of solid intellectual property right, you’ve got to find an owner and the owner may grant an exclusive license to someone who is also regarded as having sufficient property rights…but short of that… merely conducting an activity, even an unlawful activity which makes someone else’s contract less valuable, may not come within the more shadowy and difficult area of the economic tort. It is technical, and it is entirely understandable that the general public and indeed most lawyers, would find it quite difficult to understand it.

Campbell: The von Hannover case - involving Princess Caroline of Monaco against the paparazzi – did seem to establish that celebrities do have a legal right to privacy, and not to be pursued and photographed in what would normally be considered as private settings. Yet the courts have also ruled that Elton John can be photographed without his wig. Didn’t that significantly weaken the Princess Caroline case ?

Walker: The von Hannover case is very controversial. It has not at all been well received in Germany, where the judges and lawyers feel that the German domestic law provides a pretty finely tuned code for dealing with these problems. They feel that Strasbourg has come in without much marginal appreciation and second-guessed them. The Von Hannover case is quite difficult because like many Strasbourg cases the main judgment is composite of many hands. Inevitably, there’s a certain amount of blurring of a single message when several judges compromise on a single text…It is quite difficult to pick up what it really amounts to. In think its right to say there were a series of incidents – something like four groups of incidents – in which Princess Caroline had been in some cases harassed, or photographed, sometimes on a private beach, sometimes in long distance shots in an open air restaurant. So its quite hard to see how it is going to lay down principles that are going to guide other cases.

Campbell: If I can hold a candle for poor old Elton John, and point out the different treatment afforded to his sensibilities…Isn’t there a form of cultural relativism being practiced here? One that is reflected in the quotation of Lord Bingham that you have cited – “ The material that engages the interest of the public may not be the same thing as the material that engages the public interest.” I mean – who’s to say?

Walker: (laughs). Indeed. Who’s to say? Unhappily, or some of us might think unhappily, it is judges who have had this task put upon them by Parliament. I think there is undoubtedly a feeling and it is an understandable feeling that those put themselves about, who court publicity and who make very, very large incomes from doing so, can’t really have it both ways. So that there is a feeling that high earning celebrities - like politicians, though for different reasons - have to tolerate a good deal more intrusion than the rest of the public.

Campbell: Also the media also has reason to feel aggrieved about any constraints. When you have a political process that is more and more veering towards a presidential style of campaigning in which the airbrushing of the candidate’s personality – and family image – is an increasingly powerful part of the marketing toolkit, doesn’t this create a public interest defence for the media, in trying to get behind the façade? Which also has implications for privacy.

Walker: It certainly does, Again, it is the instinctive and entirely natural public feeling that people can’t have it both ways. If they want to send out 100,000 postcards of them with their children as a happy family, they are to a degree bringing their family life into their public persona.

Campbell: On that point, it often seems that the sanctity of privacy is being invoked - and the courts are being expected to defend that. While at exactly the same time, the courts are also being expected to protect the commercial process of packaging and marketing that privacy,

Walker: That’s quite right. The courts have traditionally been the defenders of property rights, and quite strong defenders of capitalism – as well as now, being the defenders of quite personal rights attached to human dignity. [Walker had been involved at the outset in the Douglas case at a Court of Appeal hearing on whether to discharge an injunction] But even then, my instinctive feeling at that time – before we’d had any extensive argument at all - was that really a celebrity was trying to have it both ways, if he sold pictures of his wedding for a million dollars or whatever, and at the same time said it was a private occasion.

Campbell: That’s why I referred to Lord Hoffman and the reluctance to acknowledge that this ‘image right’ milestone is where we now are, on the road. Perhaps it will take another case to make that apparent.

Walker: No doubt sooner or later, a case will come that will raise the issue squarely. My impression is that this a topic where there is very lively discussion among the media and among people who manage celebrities - but with relatively little in the way of actual cases before the court. To some extent, those who want to create image rights have won – at least some of the first rounds - by default. And they’ve won by indicating that they regard themselves as having an image right, and that proceedings will be issued promptly and pursued vigorously –

Campbell : And with the costs involved serving as intimidation.

Walker: That’s just what I meant. That if you adopt a sufficiently confident and hostile stance, you get some way to managing de facto, to defend a right which may not exist de jure.

The Rugby World Cup

Campbell: In New Zealand, we have passed something called the Major Events Management Act which is initially focused around the Rugby World Cup. It establishes what are called clean zones around the venue and along the transport routes to and from the venue, in which only authorized advertising or that pertaining to the ordinary business of the firms located in or visible from those zones will be legal. Also only certain words creating associations with this spectacle will be governed by the Act for the three years beforehand…Now, in the Douglas litigation you cited the Victoria Park Racing Club case –

Walker: The Australian one ?

Campbell: Yes. And that seemed to put major limits on the potential for ownership of public spectacles. Do you think such provisions as we have passed would be likely to be found compatible by Strasbourg with the human rights provisions of the European Convention ?

Walker: I don’t see that they would be incompatible. Because this Act you mention is really trying to give statutory protection to commercial interests in a way that the common law almost certainly would not, as the Victoria Park Australian case mentions. It does seem to me that the effect of the statute you have just mentioned is an astonishing victory for commercial interests in fencing off areas that would otherwise be open to the general public and normal competition. I wonder whether this statute passed easily – and whether there was a great deal of lobbying to produce it ?

Campbell: I think it sailed through with minimal opposition, and that only from a minority party. Which may be a reflection of the place that rugby holds in the economic and cultural life of New Zealand.

Walker: Certainly rugby as we know it is an area in which New Zealand is absolutely wonderful. But why one political set of commercial interests should get the benefit of New Zealand’s fame and particular prowess on the rugby field, I don’t know. There is a parallel with the situation now that London has got the 2012 Olympic Games. There are very large commercial interests involved there, and who are doing all they can to obtain a monopoly of the money that will be spent from visitors to London in 2012.

Campbell: Which may well provoke a legal challenge – in that some people may feel the standards of free expression and commerce that Strasbourg has set in other areas, might be applicable in this case ?

Walker: It might. Again, I don’t see that has much to do with privacy. Its only connected with privacy in that if you imagine we were not talking about a particular sporting event, but a particular celebrity…I’m not sure how you translate that into a human right.

Campbell: It would have to do with how far you are prepared to go in infringing what would be article 10 rights of freedom of expression, and of legitimate commercial activity in public places.

Walker: Yes.

Campbell: And are you more or less saying that the organizers of the Rugby World Cup could argue that for the public and the national good, those rights should be subordinated to the general benefit that accrues from an event of this magnitude ?

Walker: Well, if all the profits were going to public purposes, or to build more sports grounds for the people of New Zealand or East London as the case may be, that would be fine. But certainly, in the case of London there would be very large commercial interests and they are not doing it for the good of the people, but because they see that it is going to be extremely profitable.

Flag Burning

Walker : A lot of these things do depend on the facts of the case, and it is often very difficult to lay down very general principles.

I gather that flag burning in New Zealand is quite a topical subject. This raises the general point of what is offensive behaviour. And the answer is I think, that something done in the course of an Anzac Day memorial day parade could well be offensive, although the same behaviour in a different context would not be.

Campbell: Yes, and the deliberate choice of venue by the person making that symbolic act is then defended as a general right of political expression – in denial of the sanctity for some, of the particular occasion. There’s an element of wanting to have it both ways there as well.

Walker: Yes. To do that sort of flag burning on an occasion when others are perhaps remembering relatives who have died in the War. The protester is deliberately adopting a very high profile occasion – and I think in Strasbourg terms, freedom of expression must always be weighed against, among other things, the rights and freedoms of others. And the right or freedom of one who may have lost a grandfather at Gallipolli and commemorate it in a fairly solid way is, it seems to me, quite an important interest, to be weighed against the symbolic action.

Campbell : Which means that such symbolic acts are not now – and maybe never were – based on an absolute right of political expression ?

Walker: That’s right. And without descending into a soup of moral relativism all the time, I think an awful lot of these issues involve a balancing act – because human rights are not rights to be enjoyed in an ideal Garden of Eden world. They are to be enjoyed in an overcrowded world, with other people who have their own interests and susceptibilities. And we all have to try and rub along together, really.

Footnotes:
The Law Lords ruling, and Lord Walker’s dissent on the Hello/OK case can be found here.
Arguably, the Law Lords ruling in June did in fact create an absolute right for control order and terrorism suspects to know the substance of the allegations against them beyond mere generalities, and including the secret evidence component. Beforehand, the Home Office had argued it was sometimes possible to have a fair hearing without any disclosure of secret evidence, depending on the circumstances of the case - and the Law Lords had accepted that position. That is, until the Strasbourg decision in February effectively established an absolute right, which the June ruling has finally accepted as British law. The Law Lords ruling on control orders can be found here and a major report by the Justice human rights organization on the use of secret evidence can be found here. An extensive Canadian report on the use of special advocates ( including the New Zealand experience in the Zaoui case) can be found here.

ENDS

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