By Korieh Duodu (THE GUARDIAN, 15/07/08):
The emerging law of privacy has perhaps already taken over from defamation as the weapon of choice when well-known individuals or business personalities battle it out at the high court to prevent (or punish) the publication of objectionable media stories. When the Max Mosley case concludes, a new chapter could have opened in that saga: a big award of damages could pave the way for celebrities to fight even more effectively in defence of their reputations and private lives against the might of press freedom and the financial clout of the red-top media.
Clearly, the stakes are high for both sides. The salacious content apart, the Mosley case is striking because of the possibility that – if Mosley wins – the judge could set a significant precedent by making a massive award of “exemplary” or “punitive” damages against the publishers of the News of the World. It is being argued in this case that the News of the World did not give Mosley advance warning of their intention to publish the story, so that he could have the opportunity to seek an emergency injunction from the court. If the courts decide to punish such conduct, it could become considerably more difficult for such stories to be published in future. Such an award could also theoretically run into hundreds of thousands or even millions of pounds.
The normal measure of damages (called “general” damages) is to compensate the claimant for distress or injury to feelings caused by the unauthorised disclosure of private information. Exemplary damages are only rarely awarded: they are saved for cases where the court wishes to make an example of the defendant and deter such conduct in future. If the judge awards exemplary damages in this case, it will be the first time such an award has been made in an English privacy case.
“General damages” awards have been surprisingly low in the privacy cases which have come before the courts since the Human Rights Act came into force in 2000 (although a number have settled before trial for large amounts, such as Hugh Grant‘s and Sienna Miller‘s cases). Naomi Campbell received only £2,500 general damages after the Sunday Mirror disclosed that she was attending Narcotics Anonymous. She received an additional £1,000 for “aggravated damages” due to the additional distress she suffered as a result of the offensive tone of the article. Michael Douglas and Catherine Zeta-Jones were awarded £3,750 each for the distress of seeing spoiler photographs of their wedding in Hello! magazine. More recently, Loreena McKennitt, a Canadian folk singer, was awarded £5,000 damages (by the same judge who presides in the Mosley case) for infringement of privacy after the publication of an unauthorised biography. In a curious case in the county court in 2005 (Djerdjar v Commissioner of Police for the Metropolis) a judge awarded £7,500 for infringement of privacy when a police force gave a photograph of the claimant to two local newspapers who published them, falsely alleging that the individual had been involved in a pub theft.
Exemplary damages are of a completely different order to “general damages” and leave scope for the judge to reprimand the publisher for its conduct in the run up to publication of the article. Such damages are awarded if the court decides that “the behaviour complained of gives rise to a sense of outrage” – so said Lord Nicholls in a 2002 House of Lords case. Another test is to ask whether “the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff”. In such a case, the judge can order compensation in the amount of any profit that the publisher made as a result of the specific article – for example if there has been a spike in circulation of the newspaper on the day of publication, the damages could equate to the additional profit made.
The principle was used not too long ago in a defamation context: Elton John was awarded £275,000 exemplary damages by a jury after a front page article in the Sunday Mirror which claimed falsely that he had an eating disorder. Although the amount was reduced on appeal, the court of appeal accepted that such damages could be awarded in principle and commented that the question for the jury was whether they were satisfied that the defendant had no genuine belief in the truth of what had been published and had been motivated by a cynical calculation that publication was to its mercenary advantage.
It is quite possible that the court could apply a similar test for the award of exemplary damages in a privacy case. The test could be: did the newspaper make a cynical calculation that publication was to its commercial advantage notwithstanding its being aware that it was publishing ostensibly private material?
Such a test gives rise to a host of conceptual difficulties. What would be meant by “ostensibly private material” in an era when our privacy law is in development and there is differing judicial as well as public opinion about what is properly to be regarded as “private”? What if the newspaper honestly believes that it has a defence to the claim (such as a public interest defence?) Can it be said to make a cynical calculation in circumstances where it thinks it should win a case at trial? Unlike in defamation, where the claim is designed to compensate the publication of untrue allegations, in a privacy case the basic allegations are usually true, and it follows that the editor may well honestly believe in the genuineness of what he or she is publishing. To what extent is it “cynical” to publish when you know (or have been advised) that you are on shaky legal ground?
Perhaps the courts will steer away from a test for exemplary damages which relies on knowledge that the publication is likely to constitute an infringement of privacy. It is open to the judge, for example, to decide that the newspaper’s conduct is “outrageous” if it can be shown to have decided to publish its story without first warning the claimant that it is about to do so and providing him with an opportunity to seek an emergency injunction from the court. However, even with such a test, the court would effectively be forcing the media to tell individuals about its intentions prior to publication, which no doubt would be hailed by some as an equally outrageous intrusion into press freedom.
The right to privacy is always to be set against competing rights such as the right to freedom of expression. The courts acted to reduce defamation awards in order to ensure that there was no “chilling effect” on free speech by the threat of large sums of compensation for journalistic errors and to bring damages more in line with personal injury awards. They have also clipped the wings of our defamation laws in order to make it more difficult to sue if the allegations are in the public interest. Freedom of speech will continue to play a big part in the emerging law of privacy. Even if an article grossly and flagrantly infringes privacy, the courts could be wary of over-stating the need for a deterrent effect by ordering massive exemplary damages payouts.