Who can honestly say that they don't enjoy a little celebrity scandal? Lawyers
have recently had a good excuse to delve further on the basis that celebrity
scandal has brought the law of confidentiality to the forefront in the courts
over the past couple of years. This was highlighted particularly recently again
when David and Victoria Beckham went to court to try to prevent their former
nanny from revealing details of their lives she had been privy to during her
time in their employment. Despite an allegedly "water-tight" confidentiality
agreement, the courts refused their requests and permitted the News of the
World to run the story.
In the past few years, there has been a spate of high profile cases involving
celebrities seeking to block the publication of stories/photographs involving
them. Various arguments have been used including not only the law of confidentiality,
but also Article 8 of the European Convention on Human Rights (Right to Private
Life) and unlawful processing under the Data Protection Act 1998. Whilst it
remains difficult to draw a definitive line which if crossed will prevent or
allow publication, it would appear that the recent Beckhams case marks a shift
in the courts' approach. The courts seem to be more reluctant to allow celebrities
to hide behind the law to prevent details of their lives being revealed.
Two of the earlier cases on this point involved Catherine Zeta-Jones & Michael
Douglas and Naomi Campbell attempting to prevent the publication of photographs
of them in situations where there was no contractual link between them and
the parties they were seeking to prevent (in Campbell's case, the News of the
World newspaper and for Zeta-Jones/Douglas, Hello magazine).
Whilst in both the Zeta-Jones/Douglas and Campbell cases, a relative degree
of success was achieved (in the form of cursory compensation for the publication
of these photos), the most recent Beckham case is different as there were contractual
restrictions in place preventing the Beckham's nanny from disclosing details
of the Beckhams' lives which she obtained during her employment with them.
Regardless of the contractual obligation of confidentiality, the court felt
that the stories could still be published. It would appear that this was on
the basis that the public interest in the "truth" about the image
the Beckhams portrayed to the media was deemed to overrule the confidentiality
agreement they had in place.
It is well-known that the Beckhams trade heavily on their "brand image" as
a happily married couple. However, the stories to be published contained several
allegations which contradicted this image. In allowing the publication of the
stories, the courts seem to have been suggesting that the public interest in
the truth behind this "brand image" outweighed any confidentiality
provisions between the Beckhams and their nanny. Similarly when the House of
Lords held in favour of the publication of the photographs of Naomi Campbell
leaving a Narcotics Anonymous meeting, this was partly justified on the basis
that she had publicly denied a drug addiction and it was deemed to be in the
public interest to be able to correct the "public lies" that Ms Campbell
had perpetrated regarding her drug use. However, in Ms Campbell's case, it
was felt that the level of detail, e.g. when, where and how she was receiving
this treatment, had been excessive.
In contrast, previous attempts by Tony and Cherie Blair's former nanny and
by Lady Archer's former personal assistant to publish details of their ex-employers
lives in breach of confidentiality agreements failed. The distinguishing factor
would appear to be that the Blairs and Lady Archer did not court the media
as the Beckhams did, and therefore the public interest argument in favour of
publication was not as strong as it was in the Beckhams' case.
Opinions on the decision to allow publication in the Beckham's case indicate
that it was wrongly decided on the basis that the public interest expectation
surely cannot extend to the mundane detail of the Beckhams' lives, i.e. that
like many other couples, they argue, the husband's head may be turned by other
women and this makes the wife insecure. Such commentators have drawn a distinction
between the details of Beckham family life and the Campbell case, which involved
allegations of criminal conduct vis-à-vis Miss Campbell's drug addiction.
There are also concerns that enabling employees to disregard their contracts
of employment in such circumstances would make private life an impossibility
for figures in the limelight.
The Beckhams have now agreed an out of court settlement with their former
nanny so, for the moment, it remains to be seen whether the notion that the
public interest can over-ride contractual confidentiality undertakings is developed
by the courts. It also currently appears to be restricted to celebrity cases,
but we will just have to wait and see whether there could be wider application
for employees (bound by contractual obligations of confidentiality) to reveal
that their employer is not as "clean cut" as they portray themselves
to the media.