Last week’s Court of Appeal decision in the case brought by J. K. Rowling has stacked yet another building block in the creation of a privacy law. The court upheld Rowling’s right to battle to ban publication of covert long-lens pictures taken of her son in public when 18 months old. The Master of the Rolls, Sir Anthony Clarke, said: “If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent.”

The case is not an isolated one. Writs have recently been issued on behalf of Ashley Cole against The Sun and Daily Mirror newspapers; Max Mosley has also issued proceedings against the News of The World, likely to come to trial in July.

These cases have a common thread — they involve celebrities and they raise the same question: should those living in the public eye be subject to judgment by the tabloids and have their private lives revealed for public scrutiny? Should anyone have to endure this treatment simply because they have a talent for singing or for kicking a football around a field?

What information or gossip (true or not) should the public be entitled to know — and is press motivation purely about selling more newspapers rather than ensuring that the public is appropriately informed?

Weighing what is of interest to the public against what is in the public interest has been a task for English judges since the European Convention on Human Rights was made part of UK law in 1998. Traditionally, the UK had no separate right of privacy. That began to change when the Human Rights Act made it easier to pursue the right to respect for privacy and family life provided in Article 8. A series of rulings that balance that right against Article 10, the right to freedom of expression, has spawned the growth of today’s “law of privacy”.

It was a judgment in 2005 in Von Hannover v Germany that became a turning point for those seeking the protection of Article 8. The Strasbourg court ruled that paparazzi photographs of Princess Caroline von Hannover of Monaco and her children going about their lives were private, even though taken in public places. It made a distinction between reporting facts capable of contributing to a debate in a democratic society about politicians and the exercise of their functions, and the reporting of an individual’s private life with no official functions. It also recognised that the public are not entitled to know “everything” about public figures.

Then the House of Lords upheld the Article 8 rights of Naomi Campbell, the supermodel, holding that photographs and details published in the Mirror of her attendance at a Narcotics Anonymous meeting were private. In 2006 the UK courts moved even closer towards the recognition of a right to privacy in judgments in CC v AB and McKennitt v Ash. The balance was shifting in favour of Article 8. Privacy of the individual was rapidly becoming the “default” position.

Newspapers have long argued that the private life of, say, professional footballers should be subject to public scrutiny because they are role models. That reasoning, however, is beginning to fall on deaf ears. Sir Stephen Sedley, a respected appeal court judge, wrote in June 2006: “One has to wonder what our moral custodians imagine goes on in young people’s minds. Possibly — just possibly — a certain number of boys want to grow up playing football like Garry Flitcroft. Is the revelation in the family’s Sunday paper that he has been sleeping with a lap dancer going to make them switch to, let us say, Wayne Rooney as their preferred role model? Or is it going to suggest to them that the great thing about being a professional footballer, or any other kind of media star, is that you can sleep with just about anyone?”

While the public has a right to know of the dishonesty or failings of elected officials, should we be entitled voyeuristically to participate in the blatant manipulation of Britney Spears or Amy Winehouse? Some of these stories may be entertaining, but the intrusion rarely seems necessary or appropriate.

There may be no UK legislation creating an absolute right to privacy but the end of the kiss-and-tell may nevertheless be little more than a visit to the Court of Appeal away.

Graham Shear is senior partner and Alison Green a partner at Teacher Stern

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