The Beckham litigation and the privacy rights of celebrities

Celebrities are having a hard time protecting their privacy. In New Zealand, Mike Hosking sued to protect the privacy of himself and his children, but predictably lost on the facts of the case, while in the process achieving recognition of the existence of a new tort of breach of privacy here. In England, the Beckhams are having similar difficulty succeeding in protecting their privacy and also in enforcing confidentiality agreements, with resulting calls for new privacy laws in the UK.

For the benefit of any readers from Mars (or the USA), David Beckham is the captain of the English soccer team and is the world's best-known sportsman, and his wife Victoria is a well-known pop singer who was formerly a member of the Spice Girls.

The Beckhams are fully aware of the public interest that they generate and of the commercial value of their images. They sensibly had their (now former) nanny sign a confidentiality agreement. In fact, she apparently signed four of them during the two years that she worked for the celebrity couple.

Despite the existence of the confidentiality agreements and the obligations of confidentiality she had assumed, the nanny proceeded to reveal to the press - and, via the press, the public - confidential aspects of the Beckhams' private lives, in particular the state of their marriage and family life. She reportedly received a very large sum of money from a newspaper for her story.

The Beckhams went to Court and sought an urgent interim injunction to restrain the breach of confidentiality and enforce the terms of the confidentiality agreement. The application was unsuccessful.

The newspaper (The News of the World) apparently argued that the intended revelations were in the public interest in view of the disparity between the reality of the nature of the Beckhams' private life on the one hand, and the public perception of it on the other hand, and because of the commercial advantage that the Beckhams were said to gain from the image they cultivated of a happy family.

Following the failure of the eleventh-hour injunction application, the newspaper proceeded to publish a seven-page exposé.

In a graphic illustration of the level of public interest in the Beckhams, and the consequent commercial value of this particular story, the newspaper reportedly sold an extra 100,000 copies of its newspaper that day.

The Court's decision takes the reasoning in supermodel Naomi Campbell's case one step further. Ms Campbell had attempted to prevent publication of revelations that she had attended a drug rehabilitation clinic, which contradicted her public denials of drug use. There was said to be a public interest in the truth being revealed. In that case, however, there was no written confidentiality agreement or other contractual obligation of confidentiality. The Beckhams' case has accordingly been highly controversial, and has prompted renewed calls in the UK from many quarters for new privacy laws, and public opinion polls supporting their enactment.

The Beckhams' failure to obtain an interim injunction to prevent their former nanny from disclosing details of their personal lives is unlikely to be the end of this story.

The injunction application was reportedly heard by the Court on a Saturday night, necessarily on the basis of incomplete evidence given the urgency. It is not clear how fully the matter was able to be argued that evening. The Judge had to give a decision immediately. There is no certainty that the result would be the same in another case, even with apparently similar facts.

As an illustration of that, the Beckhams subsequently sought to prevent repetition of the revelations in other newspapers and on television. They failed again, due to the fact that the material was already in the public domain and had been widely disseminated, but did succeed in preventing any fresh allegations being made.

The Beckhams are also continuing with their litigation against both the nanny and the newspaper, and the trial is likely to take place at the end of the year. The lawfulness of the publication, the extent to which the confidentiality agreement is binding, and the Beckhams' entitlement to damages if their rights were infringed, are issues still to be considered by the Court at the final hearing. Watch this space.

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