Philip Hensher: Public figures have a right to privacy

The law on privacy has reached, surely, a most peculiar point. It's very difficult for an observer to understand the justice which underlies the most recent piece of celebrity scandal. If you had never heard of David and Victoria Beckham, had no idea of their fame, it would be all but impossible to understand why a court had decided that their privacy could be so comprehensively invaded by a nanny under contractual obligations and an opportunistic newspaper. Fame, surely, is not enough to remove any right to a private life. Or so one might have thought.

The law on privacy has reached, surely, a most peculiar point. It's very difficult for an observer to understand the justice which underlies the most recent piece of celebrity scandal. If you had never heard of David and Victoria Beckham, had no idea of their fame, it would be all but impossible to understand why a court had decided that their privacy could be so comprehensively invaded by a nanny under contractual obligations and an opportunistic newspaper. Fame, surely, is not enough to remove any right to a private life. Or so one might have thought.

In brief, a nanny employed by the Beckhams sold her story, at the weekend, to the News of the World. Despite the fact that she had signed, as a condition of her employment, a contract which enjoined her public silence on any matters of private family life, she supplied the newspaper with enough details to fill half its pages last Sunday.

They were very private details indeed, including allegations of affairs and marital discord. The newspaper made no attempt to contact the Beckhams in advance to ask them for any comment, since, the reporter said, "we knew from past experience that they would apply for an injunction to try to cover up the truth." Nevertheless, the Beckhams did learn of the story before publication, and on Saturday applied for an emergency injunction.

Mr Justice Langley refused the injunction, and the story went ahead. Although he made no ruling about the nanny's breaching any duty of confidence, he was apparently persuaded that the publication of the story was in the public interest.

There is, by now, quite a body of precedent which seems to establish that those who invite favourable publicity regarding their private lives cannot object when their privacy is invaded without their permission. This has especially been the case when some possibility of hypocrisy is involved.

So the model Naomi Campbell, who had lied about her drug use, had to accept that a newspaper was entitled to investigate and publish details of her rehabilitation programme. Did this place an obligation on celebrities to answer all interviewers' questions fully and truthfully, even if such answers would lead them to admit past criminal behaviour? That seemed to be the implication of the Campbell judgment.

A second relevant precedent came in 2002, when a footballer's affairs with two women were discussed and his identity revealed. Explaining why such an invasion of privacy was permitted, the judge went beyond the fact that a right to privacy does not really exist in English law, and set out the strange principle that "footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example."

The ruling over the Beckhams, which is contrary to any kind of natural justice, seems to rest on two things. First, according to the newspaper's lawyers, because the Beckhams had never openly stated that their marriage was in trouble, they were hypocrites who deserved to be exposed, just as Naomi Campbell did. Of course, they did not put it quite like that: they said that the Beckhams had "made millions" pretending that they had a perfect marriage.

Secondly, it was argued that the Beckhams, through their wealth, fame and position, could be considered as "role models", whose probity could be examined since they were effectively public figures. Is this really true? Could it not also be true about anyone with any kind of fame whatsoever - poets, entrepreneurs, newsreaders, actors? The original idea of a "public figure" - someone holding a post of public responsibility - isn't the same as a figure in the public eye, and yet these judgments do conflate the two.

If you follow the logic of this judgment, anyone who discovers any intimate detail about a famous person can publish it with reference to the "public interest". If a starlet allows herself to be photographed on the red carpet at a premiere, then she is, it may be argued, a "role model". If a newspaper subsequently discovers from her nanny that she likes a spliff or a bottle of wine on a Saturday night, that she had a ferocious argument with her husband about whose turn it was to take the rubbish out, then it can publish it with a clear conscience. Does the starlet have any right to a private life? It's quite hard to say.

In the lack of a law establishing a right to privacy comparable to the stringent French laws, newspapers have been able to get a very long way into people's private lives. But just because some exposure of family life is occasionally offered by a celebrity, this does not mean that all right to privacy is signed away. In my view, privacy should constantly remain in an individual's possession. Invasion of privacy should, in the eyes of the law, be comparable to rape. The fact that an individual has consented to something in the past does not mean that, on a different occasion, consent cannot be withheld.

Simply because someone has said "yes" to Hello! magazine in the past does not imply that they have no subsequent right to say "no" to a complete invasion. And it makes no difference how famous the victim is. If you think the comparison between breach of privacy and rape is exaggerated or absurd, then you have either not read the stories emanating from a nanny's eavesdroppings, or lack the power of imagination to see how incredibly distressing they must be to the subjects.