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Princess Diana
The Lawyer
07 June 2007
Nearly 10 years after the death of the Princess of Wales, the media fascination with her continues but an indication that most of what can be said about her death has been the fact that the much hyped Channel 4 programme “Death in the Tunnel” when shown passed off without much comment. Before its broadcast it attracted numerous complaints and of course a high profile request from Princes William and Harry that it should not be shown but these did not lead to an application for an injunction.
On first sight this is surprising given that the developing law of privacy appeared to offer them assistance. So why didn’t they injunct?
The starting point for any claim in privacy in respect of a broadcast programme is the Ofcom Broadcasting Code which specifies that any infringement of privacy in a programme or in connection with the obtaining of material included in a programme must be warranted. This is usually in circumstances where the broadcaster can show that it is in the public interest. Privacy in the Code is described as “a legitimate expectation of privacy”. This echoes the wording of Lady Justice Hale in Naomi Campbell –v- MGN Limited and is elsewhere described in that case as the “misuse of private information”.
There must be a reasonable expectation that in the tragic circumstances of a fatal crash the last moments of life will be private. Accordingly, the Princess clearly had a reasonable expectation of privacy. Following her death that expectation would extend to protecting her children from any invasion of their private grief by the misuse of private information about her death.
Photographs as held in the Campbell case have a far greater impact and effect than words. This was reinforced in von Hannover –v- Germany in the European Court when they decided that constant publication of photographs of Princess Caroline of von Hannover did breach her Article 8 Human Rights.
The decision in McKennitt & Ors –v- Ash of Mr Justice Eady which was upheld in the Court of Appeal protected classes of information in particular about Ms McKennitt’s personal and sexual relationships, her personal feelings in relation to her deceased’s finance and the circumstances of his death and matters relating to emotional vulnerability. In balancing Ms McKennitt’s Article 8 rights against Ms Ash’s Article 10 rights for freedom of speech, the Court considered whether or not information was so generally accessible that it could not be regarded as private.
So clearly photographs of the Princess’s death would have been held to be ‘private information’. But the question then was whether or not they were now so publicly accessible that they had lost any quality of privacy or confidentiality.
It is apparent that the photographs were ones that had been seen before, in their present form in tabloid newspapers and in an even more explicit form in European magazines.
Channel 4 gave assurances that there was effectively no new information. Further they confirmed that any matters of particular sensitivity faces etc, would be obscured.
It would appear that the Princes did not make an application for an injunction because the information was already in the public domain.
The other test for the Courts was to balance the Princes’ Article 8 rights to privacy against the media’s Article 10 rights to freedom of speech.
Lord Woolf in the Flitcroft case made the bold statement that “the Courts must not ignore the fact that if newspapers do not publish information which the public are interested in there will be fewer newspapers published which will not be in the public interest.” This applies just as much to the media as to newspapers, but has, following the decision in von Hanover been somewhat discredited. Lord Justice Sedley in his Blackstone lecture on privacy said that there can be “no news value whatsoever in ‘kiss n tell’ affairs”. What real news value there is in further exposure of what are obviously distressing photographs ten years after the event is questionable. Again as Flitcroft shows the Court has no role as a censure of taste, they have to look at the ‘substantive’ content. What the Court would have decided as to whether it was in the public interest we shall never know. I suspect they would have avoided it by deciding the information was already in the public domain.
So the Princes’ failure to apply for an injunction should not be seen as a failure of the developing law of privacy but acceptance that as Channel 4 said, the information was already in the public domain and had lost its essential ‘private’ quality.