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    Wednesday, 20 May 2009

    This year's black?: celebrities, the paparazzi and the fashion for harassment orders

    Earlier this month, lawyers acting for Amy Winehouse confirmed that she has been awarded a court order to prevent the paparazzi from following and photographing her. She is not the first celebrity to take this route in recent months. Both Sienna Miller and Lily Allen have likewise received the protection of the courts. This development amounts to the opening of a new legal front in the battle between the media and public figures keen to preserve their privacy. At a time when press standards and regulatory structures are subject to Parliamentary scrutiny, it begs the question of where the Press Complaints Commission has been in all of this.

    For many people, the spectacle of the massed horde of photographers jostling on street corners waiting to descend on some willowy blonde – the ‘media scrum’ - has become the leitmotif of media malpractice. It is the snarling mask of the metaphorical ‘feral beast’ lambasted pointedly by Tony Blair during his last speech as Prime Minister. Type the name of any female celebrity in the search box on YouTube and you’ll likely be faced with scenes of truly oppressive, ‘stalkerazzi’ behaviour. Matters have been exacerbated by the ubiquity of high-specification digital cameras that allow all-comers to join the fray. Keira Knightly has complained, repeatedly and bitterly, that the paparazzi exercise “a very predatory force”. Kate Middleton’s experiences surrounding her twenty-fifth birthday resulted in a select committee investigation.

    Courts too have expressed a visceral distaste for the manner in which media organisations sometimes acquire their content. In Von Hannover v Germany, for example, the European Court of Human Rights lamented that “photos appearing in the tabloid press are often taken in a climate of continual harassment which induces in the person concerned a very strong sense of intrusion… or even of persecution”. It may have been this perception that prompted the court to deliver what some see as an over-generous ruling to Princess Caroline.

    The court orders obtained by Winehouse, Miller and Allen are based upon the Protection from Harassment Act 1997, legislation ostensibly introduced to counteract ‘stranger stalking’. The Act criminalises engagement in a ‘course of conduct that amounts to harassment’. It also allows victims to sue for damages and other remedies in the hope of preventing recurrence. Thus, it sits alongside the emerging privacy law that has been used to great effect by Max Mosley, Naomi Campbell and others. Where the tort of misuse of private information is focused on harms caused by publication, however, this use of the anti-harassment act is concerned more with the distress caused by more physical intrusions.

    It was always expected that the very general terms of the harassment law might be used against the more outrageous elements of the press pack. Princess Diana was said to have welcomed the prospect before her untimely, and in this sense ironic, death. The Act has been used to deter violent spouses, jilted lovers, and animal rights protestors, but – strangely - never the paparazzi. Until now.

    This begs the obvious question of ‘why not’. One explanation is that the alternative regulatory solution offered by the PCC has been largely effective. Since the late 1990s, the Commission has adjudicated on around fifty complaints based on Clause 4 of the Editors’ Code of Practice that deals with harassment. It has also helped resolve a further eighty similar complaints. It enjoins newspaper and magazine editors not to use material acquired by staff or freelancers in circumstances where the subject has been harassed. Further, the PCC has instituted a pre-emptive system of ‘desist notices’, which it issues to editors at the request of press-embattled individuals in the hope that they will ‘call off the dogs’. The PCC is rightly proud of these aspects of its performance, and cites its commendable successes in protecting personalities such as Natasha Kaplinsky.

    One criticism of the PCC’s role, however, is that it can’t secure damages (although its Director maintains that ex gratia payments are often made in resolution of complaints). Another more chastening critique is that desist notices don’t always work. Sienna Miller’s experiences in 2008 are instructive. After a warning was circulated to editors by the PCC, the actress was still moved to sue when the Daily Star published photographs depicting her in a distressed state: the result of a paparazzi hounding. Moreover, the harassment she faced didn’t stop and she was forced back to court to deploy the 1997 Act. Both cases were settled.

    To its credit, the PCC has recognised and sought to explain its limitations. It agrees that its capacity is limited, but explains this by reference to the fact that much of the content acquired by photographers is sold to overseas publishers over which it has no influence. It wouldn’t accept that sometimes British newspapers and magazines may simply choose to ignore its requests.

    Now that it has been proved a reality, the risk of actions based upon the 1997 Act will exercise a constraining influence on photographers and newspaper editors. Its use in fact may prove to be limited to occasions on which either no publication has yet occurred and the prospective publishers are unknown, or where the publishers are based overseas. There is no reason in law, however, why a harassment action should not - assuming the requirements of the Act are satisfied – also be brought in other circumstances. Indeed, should those suffering from harassment have limited faith in the ability of the PCC to curtail harassment or deliver an adequate remedy, then the statute-based legal route could become the preferred one. In the main, though, we might expect that privacy laws and regulators, like houses, will lean on one another.