High Court judge Mr Justice Eady has unquestionably had a greater impact than anyone else on the way privacy law in the UK has developed over the past couple of years.
He has sat in judgment on disgraced former BP chief Lord Browne, spared the blushes of a household name sports figure in the discreetly handled CC vs AB case and presided over the landmark McKennitt vs Ash dispute.
Late last month, the judge issued another injunction in the long-running McKennitt case, in which Canadian folk singer Loreena McKennitt has fought to suppress sensitive personal information from being published about her in a book by her former friend Niema Ash.
Through Mr Justice Eady’s rulings and the application of article 8 of the European Convention on Human Rights, an ad hoc privacy law is becoming clearer, presenting new reputation management possibilities for high-profile individuals.
‘With Mr Justice Eady in the High Court, we are seeing an expansion of privacy,’ says Financial Dynamics managing director, reputation management, Jonathan Hawker, a litigation PR expert.
‘These cases have changed the goalposts with regard to how PROs can respond to intrusive approaches from the media.’
Balance has tipped
While Lord Browne endured ignominy in the case that led to his downfall, this was due almost entirely to antagonising the judge by lying in a witness statement.
Had the erstwhile oil executive remained truthful, the outcome of the case may have been rather different. It should be noted that the original Mail on Sunday story is still covered by an injunction that has not been lifted by the judge.
Ashley Hurst, associate at media lawyers Olswang, says: ‘We often work with PR advisers when a damaging story is breaking.
‘If the story is about a sexual relationship or some other private information, the law of privacy often now provides the basis for an injunction where the traditional libel laws don’t.
‘Until recently, kiss-and-tell stories were fair game for all celebrities and public figures. These days, the press needs to justify such invasions of privacy or take the risk of being sued.
‘Justifying such stories is likely to be easier in respect of politicians than celebrities, except perhaps where celebrities have repeatedly exposed details of their private lives to the media.’
Phil Hall Associates chairman Phil Hall has sat on both sides of the media litigation fence, having edited News of the World and Hello! magazine before moving into PR. Hall’s agency acted for the sports figure embroiled in the CC vs AB case.
According to Hall, around eight newspapers did not run the stories they were intending to about the sports figure’s affair due to Mr Justice Eady’s interpretation of privacy law.
A key factor was the mental state of the sports celebrity’s wife, who is understood to have threatened suicide.
‘There’s still a long way to go until all the boundaries are set, but I think the scales of balance have tipped more in favour of the public figure,’ says Hall. ‘As long as people are honest, they are entitled to a private life. But if not, the scales of justice swing the other way. If you pretend you are a gentle, sweet, decent soul but you actually beat up your wife, then you are fair game.’
Newspapers are definitely having to tread more carefully and, as one might expect, this rankles with some journalists. In a recent piece for The Independent, media commentator Stephen Glover lambasted Mr Justice Eady for his restrictive interpretation of the European Convention on Human Rights and went so far as to label the judge ‘a threat to a free press’.
Carter-Ruck partner Mark Thomson, who has been acting for McKennitt, says: ‘The tabloid approach is changing hugely now. They realise there is effectively a privacy law and they have to sort themselves out. They are more susceptible to legal claims and injunctions.’
Clearly, there are now legal options in reputation protection that were not previously available. However, privacy law should not be used as a blunt instrument. If an injunction is sought that is too wide in scope, the media are likely to appeal concerning information that is not genuinely private or confidential, which may fuel the story.
Be alert to ‘own goals’
Melanie Riley (l), co-founder of litigation PR specialist Bell Yard, says: ‘There are risks as well as benefits for clients resorting to privacy laws. The suppression of information at first glance might be a tempting solution to a reputational crisis, but PROs should be alert to “own goals”, that is, inflaming media attention on the issue.’
Clients, Riley feels, should be encouraged to recognise that openness and honesty are highly prized, particularly where corporate reputations are concerned.
A client will score highly on any journalist’s ‘hit list’ the moment you try to gag them, say other litigation PR specialists. And with a multinational, internet-based media, no amount of privacy legislation will be entirely successful in keeping information out of the public domain.
Paradoxically, publicist Max Clifford, though well known as a purveyor of kiss-and-tell stories, is a supporter of tightening privacy laws – in order to give ordinary members of the public caught up in news stories the same degree of protection afforded to high-profile individuals.
‘For every story I break these days, there are probably ten that I stop or help to stop,’ says Clifford. ‘The rich, famous and powerful are getting more and more protection.’