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But is it privacy?

By Steven | August 13, 2008

The Evening Standard has printed an apology for falsely reporting that Prince Philip was suffering from prostate cancer:

We now accept that the story was untrue and that he is not suffering from any such condition. We unreservedly apologise both to him and to his family for making this distressing allegation and for breaching his privacy.

The apology was brokered by the Press Complaints Commission – further evidence that a complaints body is at its best when negotiating a quick solution to a media lapse.

Memo to our Press Council: this is another good reason to take up the recommendation of the recent review of the Press Council and establish a mediation arm.

But wait up. The paper got it wrong. Why is it apologising for a breach of privacy?

Gotta say, I’m not very comfortable with this. It seems to me that if you get something wrong, you’re not invading privacy, you’re committing some other sort of wrong. But I think we’re going to have to get used to this reasoning.

For one thing, as those who are frequently bagged in the media will tell you, media inaccuracies about you feel like an invasion of privacy.

More importantly, UK privacy cases are increasingly recognising that falsely reported facts can give rise to privacy issues. And the US has long recognised a strand of privacy that involves portraying someone in a “false light”, even if that false light isn’t strictly defamatory.

Still, this has the potential to blur the boundaries – especially between privacy and defamation. At the moment, it’s very hard to get an injunction in defamation cases, but it’s likely to be easier in privacy cases. Does that mean I can dress up my defamation case as a breach of privacy one, to make it easier to get an injunction? The UK courts seem to think they can resist this, but I’m not so sure.

Topics: Press Council, Privacy tort | 45 Comments »

45 Responses to “But is it privacy?”

  1. Graeme Edgeler Says:
    August 13th, 2008 at 11:37 am

    At the moment, it’s very hard to get an injunction in defamation cases, but it’s likely to be easier in privacy cases. Does that mean I can dress up my defamation case as a breach of privacy one, to make it easier to get an injunction?

    I’m not really sure I see a great problem in applying the same test for injunctive relief in cases between the publication of a story about someone having prostate cancer and a false story about someone having prostate cancer. I think one would be hard-pressed to argue that the latter story is worthy of greater free speech protection.

  2. Steven Says:
    August 13th, 2008 at 12:16 pm

    I agree. But it’s interesting that, on current law, you could probably get an injunction for the first, and it’s not clear that there’s any cause of action you could use for the second. There’s no real defamation overlap here.

    On the other hand, say they accused Prince Philip of sexually harrassing an employee. Could he then try to rely on the (presumably) lower injunction threshold of privacy by casting it as a privacy case and not a defamation one?

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