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Legal Eagle

Defamation

Q: Press invasion of privacy

What can I do to stop press comment about my private life?

A: Your question is particularly topical given the Michael Douglas and Catherine Zeta Jones case against Hello!, which in many ways illustrates why this is such a hot issue at the moment.

I appreciate that you do not want to share your life with the press. The answer will depend on who you are and the extent of the problem. You might be able to deal with this without the expense of using lawyers or they may be your only realistic option.

The starting point is to complain to the Press Complaints Commission, assuming the issue relates to an article in a newspaper or magazine. The advantage of the PCC is that it is informal, costs you nothing and you do not need a lawyer. The disadvantage is that it is perceived as a dog with rubber teeth, since it is a voluntary form of regulation that carries little in the way of sanctions. It cannot levy fines or award damages and has the sort of soft sanctions a publication can live with.

The main grounds for a complaint are significant factual inaccuracy, invasion of privacy, harassment or intrusion into grief or an unauthorised approach to a child under 16. You can get more details at www.pcc.org.uk.

If the problem is an article which is inaccurate and damages your reputation, you could consider suing for defamation - but do think twice. Defamation cases are notoriously expensive to fight and attract more attention to what you are complaining about than the original article. Gone are the days of million pound damages, as Elton John was reported to have agreed with The Sun. Damages now are generally less than legal costs.

These rather unsatisfactory means of redress have left people largely unprotected against the sort of intrusion you may be talking about. But there is a fight back. The Human Rights Act has been seized upon as providing a partial solution. During the last two years there has been a series of cases involving celebrities where judges have tried to reconcile the tensions between an individual's right to a private and family life, the public's legitimate interest in stories and the media's freedom of expression.

The good news for you, if you are not a celebrity, is that you are much more likely to be able to bring a successful case under the Human Rights Act than a celebrity - if you can afford to do so. It is really a question of whether the sort of redress the PCC could offer will satisfy or whether you want financial compensation.

If you are a celebrity then the position is more complicated. By virtue of being in the public gaze, you will be treated as forfeiting some of your rights to privacy whether you court publicity or not. A premiership footballer who had never done any press work was not able to stop a newspaper running a kiss and tell story of his extramarital affairs. This suggests that the press can publish true stories if they undermine your status as a role model. This case may actually turn on the belief that the footballer, ostensibly a devoted family man, was caught doing a bad thing and should not be protected from exposure.

You need to be careful if you do make reference to your private life. The Naomi Campbell case shows that the courts will be more prepared for the press to run stories if you are seen as using the press and especially if the press dig up stories that show that you have misled the public.

And so to the Jones/Douglas case and Hello! - not because there is any issue of lying to the press but because they want to control it. If this is the sort of problem you have, you need specialist legal advice. In my view, a court will have difficulty accepting that a couple who have sold pictures of their wedding for a large sum is entitled to sue a rival publication for invasion of privacy. Madonna kept her wedding/christening ceremony absolutely private with no press at all and as a result would have been able to prevent any illicit photographs.

Guest columnist Sean Egan is a partner in Bates, Wells & Braithwaite, which is rated as one of the top specialists for theatre in the 2002 edition of The Legal 500.

First published March 2003