West Law Report

No privacy for male breasts

Posted in Privacy, Sexual Offences, Times Law Report by mrkooenglish on June 21, 2008

From The TimesJune 18, 2008

No privacy for male breasts
Regina v Bassett in the Court of Appeal, Criminal Division
Court of Appeal, Criminal Division

Published June 18, 200[8]

Regina v Bassett

The reference to “breasts” in section 68(1)(a) of the Sexual Offences Act 2003, defining voyeurism, did not include male breasts.

The Court of Appeal, Criminal Division (Lord Justice Hughes, Mr Justice Treacy and Sir Peter Cresswell) so held on May 14, 2008, in allowing an appeal by Kevin Bassett against his conviction on April 23, 2007, at St Albans Crown Court (Judge Plumstead and a jury) of one count of voyeurism of a man in a swimming pool changing room, contrary to section 67(1) of the 2003 Act, for which he was given an 18-month community supervision order.

LORD JUSTICE HUGHES said that the principal question was whether the man watched had been doing a private act in a place which in the circumstances could reasonably be expected to provide privacy and whether since he was bare-chested and wearing trunks, breasts were exposed within the meaning of the statutory definition.

Casual observation by changing-room users created no offence of voyeurism, even if they gained sexual gratification from what they saw.

A man need not expect privacy of his upper torso. The statute only referred to female breasts.

Judge Posner: Privacy, Surveillance, and Law

Judge Richard Posner in Surveillance Symposium of University of Chicago Law Review (Feb 2008) (.pdf) (16 pages):

“Privacy” is a word of many meanings. The meaning that is most relevant to this essay is secrecy—the interest in concealing personal information about oneself. But I need to distinguish between a per-son’s pure interest in concealment of personal information and his instrumental interest, which is based on fear that the information will be used against him.

In many cultures, including our own, there is a nudity taboo. Except in the sex industry (prostitution, striptease, por-nography, and so forth), nudist colonies, and locker rooms, people generally are embarrassed to be seen naked by strangers, particularly of the opposite sex, even when there are no practical consequences. Why this is so is unclear; but it is a brute fact about the psychology of most people in our society. A woman (an occasional man as well) might be disturbed to learn that nude photographs taken surrepti-tiously of her had been seen by a stranger in a remote country before being destroyed. That invasion of privacy would not have harmed her in any practical sense. Yet it might cause her at least transitory emo-tional distress, and that is a harm even if it seems to have no rational basis (in that respect it is no different from having nightmares after watching a horror movie—another emotional reaction that is real de-spite being irrational from an instrumental standpoint). But if the stranger used the photos to blackmail her, or, in an effort to destroy her budding career as an anchorwoman for the Christian Broadcasting System, published the photos in Hustler magazine, she would have a different and stronger grievance.

In many cases of instrumental concealment of personal informa-tion, the motive is disreputable (deceptive, manipulative): a person might want to conceal his age, or a serious health problem, from a pro-spective spouse or his criminal record from a prospective employer. But the motive is not disreputable in all cases; the blackmailed woman in my example was not trying to mislead anyone in resisting the publi-cation of the photos.

MURRAY v BIG PICTURES (UK) LTD

Posted in Art. 8 European Convention on Human Rights, Privacy, Westlaw Reports by mrkooenglish on May 23, 2008

Last Updated: 11:26AM BST 22/05/2008
Court of Appeal (Civil Division)

Sir Anthony Clarke MR, Laws and Thomas LJJ

May 7, 2008 (Filed: May 22, 2008)

Celebrities – Children – Photographs – Publications – Right to respect for private and family life – Children of celebrities – Publication of candid photographs – Reasonable expectation of privacy

FACTS

The appellant (M), acting through his parents, appealed against the striking out ([2007] EWHC 1908 (Ch), [2007] ECDR 20) of his claim against the respondent photographic agency (B) for breach of his right to respect for his privacy under the European Convention on Human Rights 1950 art. 8. M, the infant son of a well-known author, had been photographed by B in the street with his parents but without their knowledge or consent. The photograph had then been published in a national magazine. The judge struck out M’s claim on the basis that there was an area of innocuous conduct in a public place that did not raise a reasonable expectation of privacy, and that, even if the decision in Von Hannover v Germany (59320/00) [2004] EMLR 21 ECHR had extended the scope of protection into areas that conflicted with the principles and decision in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, [2004] 2 AC 457, he was bound to follow Campbell in preference.

ISSUE

Whether the judge had been wrong to strike out M’s claim.

HELD (appeal allowed)

(1) In deciding whether there had been an infringement of art. 8, the first question to be asked was whether there was a reasonable expectation of privacy. That was an objective question and took account of all the circumstances of the case, including the attributes of the claimant, the nature of the activity in which he was engaged, the place at which it happened, the nature and purpose of the intrusion, the absence of consent, the effect on the claimant and the circumstances in which, and the purposes for which, the information reached the hands of the publisher. If the answer to that were yes, then the second question was how the balance should be struck as between the claimant’s right to privacy and the publisher’s right to publish. At that stage, the question of whether the publication of those private facts would be considered highly offensive to an objective, reasonable person might be relevant, Campbell followed and Von Hannover considered.

(2) It was at least arguable that M had a reasonable expectation of privacy. The fact that he was a child had greater significance than had been attributed to it by the judge. Although the Press Complaints Commission had ruled that the mere publication of a child’s image could not breach its Editors’ Code of Practice when taken in a public place and unaccompanied by private details that might embarrass the child, everything depended on the circumstances. It was at least arguable that a child of parents who were not in the public eye could reasonably expect that the press would not target him and publish photographs of him, and the same was true of M, especially since the photograph would not have been taken or published had he not been the son of a well-known author. In reaching his decision, the judge had relied on the decision in Hosking v Runting (2005) 1 NZLR 1 CA (NZ) for a significant part of his reasoning. However, that decision was not a sufficient reason to hold that M could not show a reasonable expectation of privacy at trial, Hosking considered.

(3) There may well be circumstances, even after Hannover, in which there would be no reasonable expectation of privacy. However, it all depended on the circumstances of the case. It was not possible to draw a distinction between activities that were part of a person’s private recreation time and publication of which would be intrusive, and other activities such as a walk down the street or a trip to the grocer’s to buy milk. Moreover, it was not necessarily the case that such routine activities should not attract any reasonable expectation of privacy; all depended on the circumstances. Subject to the facts of the case, the law should protect children from intrusive media attention, at any rate to the extent of holding that a child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on his behalf. The judge had therefore been wrong to strike out M’s claim. M had an arguable case and his parents were to be permitted to take the claim to trial on his behalf.

Richard Spearman QC and Godwin Busuttil (instructed by Schillings) for the appellant. Mark Warby QC and Jonathan Barnes (instructed by Solomon Taylor & Shaw) for the respondent.

JK Rowling’s son wins privacy battle in court

Posted in Freedom of expression, Privacy by mrkooenglish on May 10, 2008

The Times Legal editor wrote about JK Rowling’s son wins privacy battle in court, he quoted the Judge:

“To hold that the child has a reasonable expectation of privacy is only the first step,” the judges said. “Then comes the balance which must be struck between the child’s rights to respect for his or her private life under article 8 and the publisher’s right to freedom of expression under article 10.”

MOSLEY v NEWS GROUP NEWSPAPERS LTD

Last updated: 4:12 PM BST 29/04/2008
Queen’s Bench Division

Eady J

April 9, 2008

Freedom of expression – Newspapers – Privacy – Public interest – Video recordings – Websites – Reasonable expectation of privacy – Extensive publication – Art. 8 European Convention on Human Rights 1950 – Art. 10 European Convention on Human Rights 1950

FACTS

The applicant (M) applied for an interim injunction to prevent the respondent newspaper company (N) from making available a short extract of video footage of him taking part in sexual activities with prostitutes. M was the president of a worldwide governing body of motor sport. N had published an article in its newspaper with a headline and article suggesting that he was involved in a “Nazi orgy”. Still photographs taken from the video footage were published alongside the article. The article and edited video footage were made available on N’s website until M complained on the day of publication when it was voluntarily removed and an undertaking given that it would not be shown again without 24 hours’ notice. Such notice was given three days later. After the initial publication the incident received extensive coverage throughout the world in newspapers and on websites. As a result there were a number of websites where the footage was available continuously. M did not dispute that the events as shown in the footage occurred. M submitted that the events shown in the footage were private and that their display breached the European Convention on Human Rights 1950, art. 8. He also contended that the incident was unrelated to Nazism. N argued that, since the material had been taken off the website, M had gone on record denying the allegations and that to that extent it should be entitled to refute his statements and vindicate the accuracy of its account.

ISSUE

Whether the events shown in the footage were private and that their display breached M’s right under the European Convention on Human Rights 1950, art. 8.

HELD (application refused)

(1) There was no doubt that M’s rights under art. 8 came into conflict with those of N under art. 10. One question that had to be answered was whether, in respect of the information contained in the edited footage, M still had a reasonable expectation of privacy, having regard to everything that had happened since the original publication. It was also appropriate to ask whether any limiting factors came into play, Attorney General v Observer Ltd [1990] 1 AC 109 HL applied.

A relevant consideration was whether there was a public interest in revealing the material which was powerful enough to override M’s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs. The answer to that question was in the negative. Insofar as the public was ever entitled to know about M’s sexual tastes, the matter had already been covered extensively since the original coverage. There was no legitimate element of public interest that would be served by the additional disclosure of the edited footage, at the instant stage, on N’s website. One aspect of the public interest was the need to protect the public from being misled by a statement made by or on behalf of the relevant claimant. M had denied the link to Nazism. The edited footage did not convincingly show that his denial was false. But even if it was capable of being so construed, there was nothing to prevent N reasserting with whatever prominence it thought appropriate, that there was Nazi role-play. Accordingly if there was a case for saying that M’s denials had in any way misled the public and that the record should therefore be put straight for that reason, the objective could be achieved effectively without displaying the edited footage.

(2) The other limiting factor to be considered was whether the information contained in the edited footage had lost its privacy to the extent that there was nothing left for the law to protect. In the circumstances the material was so widely accessible that an order in the terms sought would make very little practical difference. One might express that conclusion either by saying that M no longer had any reasonable expectation of privacy in respect of the now widely familiar material or that, even if he had, it had entered the public domain to the extent that there was, in practical terms, no longer anything that the law could protect.

James Price QC and David Sherborne (instructed by Steeles Law)) for the applicant. Gavin Millar QC and Anthony Hudson (instructed by Farrer & Co) for the respondent