What do Lord Triesman and the Duchess of York have in common? There may be several things, but the obvious one is their embarrassment at having been caught on tape saying things which, when released into the public arena, cause them damage.
Lord Triesman felt compelled to resign as Chairman of the Football Association last week after being taped apparently speculating that some countries who were also bidding for rights to host the 2018 World Cup would try to bribe referees and Sarah Ferguson was left in a very difficult position after she was caught purportedly selling ‘access’ to her former husband, Prince Andrew.
Different people, similarities in the situation and the one sure thing they have in common is that neither consented to the recording of their conversations nor did they expect to hear them played out in the world’s media. All of which drives us to consider what rights of privacy each of these people, and indeed the rest of us, have in these days when covert recording is possible in many situations. As there is no ‘law of privacy’ as such in this country, piecemeal attempts to protect confidences have been made by the judges so as to all but construct one in some, but by no means all, situations. It has always been the case that if something is said and it is untrue, then absent a public interest defence by the publisher, damages for defamation could be sought in the courts. This is all very well, but the genie is out of the bottle and there is no way people will forget what they heard –even if it is later shown to be untrue.
People who find out that something is ABOUT to be published concerning them and they do not like the idea can seek an injunction from the courts stopping publication. Here, the courts weigh up the differing claims to ‘privacy’ in the individual’s case under Article 8 of the European Convention on Human Rights on the one hand, and the press’s claims under Article 10 to freedom of expression. A clash between these competing claims was foreseen when the Human Rights Bill was drafted in 1997and section 12 of the 1998 Act provides for how this balancing act should be carried out. With publication on an overseas based website always possible whatever happens in the domestic courts, it is debatable how much effect any such order really has. The more of a ‘celebrity’ the publication relates to, the more likely it is to leak out or be in the public interest to have published.
The only certainly seems to be that if you say or do something, be very aware that you may hear or see it repeated in the media at some time in the future. It may be smug to suggest that everyone should lead a blameless life and trite to counsel people to be more cautious, but it is certain that there is no guaranteed way of keeping anything said or done out of the media and so maybe people really do need to ‘mind their ps and qs’ more if they don’t want to see themselves in print or glorious technicolour!