Celebrity privacy and the development of the judicial concept of proportionality: How English law has balanced the rights to protection and interference

Abstract

This thesis examines how English law has, and has not, balanced celebrities’ legal expectations of informational and seclusional privacy against the press and media’s rights to inform and publish. Much of the litigation that developed the English laws of privacy has been celebrity-generated by those with the financial resources to seek out and utilize privacy regimes and remedies in ways not immediately available to ordinary members of the public. The media, generally, has had the resources to present the relevant counter-arguments. Privacy protection was initially afforded to celebrities by breach of confidence and copyright. While public interest and “fair dealing” defences developed within English law, there was no underlying or consistent practical element in legislative or judicial thinking to promote a balance between the competing interests of protection and interference. That practical element, the concept of proportionality, developed in the Convention case-law of the ECtHR in Strasbourg during the 1950s. It was not until the Human Rights Act 1998 (HRA) that English legislators and the UK judicial system began to reflect and apply its consequences. Arriving at proportionate results and decisions – particularly in the realms of privacy - requires both the engagement of the rights that are sought to be maintained as well as a careful balancing exercise of these rights both internally and vis-à-vis each other. Because celebrities, with their Article 8 concerns, and the media, with Article 10 arguments, seek for their causes to prevail, the ways in which legislation and litigation now resolves matters is by the “ultimate balancing test” of proportionality. Proportionality is the measure within this thesis that is constant from chapter to chapter, highlighting, respectively, where the application of proportionality and balance might have produced different results as regimes developed historically and where new developments were needed to accommodate its requirements when it was apparently absent