The Press Complaints Commission in the UK can change its mind. And the right of privacy can now be asserted on the beach as a result.
First, the change of mind. In 2000, the PCC held that newsreader Anna Ford did not have a reasonable expectation of privacy sufficient to restrain publication by OK! magazine of photos taken of her and her husband subathing on a private beach. This week, in an all-but identical case, the PCC held that model Elle Macpherson did have a sufficient expectation of privacy to complain about photos taken of her and her children sunbathing on a private beach on a private island. Roy Greenslade says that this “certainly qualifies” for the hackneyed clichÃ© “landmark decision”, and I think he is right. Landmark or not, it cannot have been unexpected, coming as it does on the heels of recent expansions of privacy law in the UK courts.
Second, privacy on the beach. The point of the emerging caselaw is that what matters is not merely whether the location can be characterised as public or private, but also whether the person in question reasonably believed that the location was in fact private; though, of course, whether the location could be characterised as public or private will go to the reasonableness of the belief. In Elle Macpherson’s case, she believed she was on a private beach on a private island for a private holiday for herself and her children; and whilst there seems to have been some limited public access to the beach, the PCC nevertheless held that her expectation of privacy was reasonable in all the circumstances and that publication by Hello! magazine of photos of her and her children on that beach invaded their privacy.
On a technical matter, the PCC seems to have done so by reversing the burden of proof. In Anna Ford’s case, the PCC held that “it could not conclude that a publicly-accessible Majorcan beach was a place where the complainants could have had a reasonable expectation of privacy” – in other words, it was for the complainant to prove that she could have had such a resonable expectation of privacy. However, in Elle Macpherson’s case, the PCC held that it “was not satisfied that the magazine had been able to demonstrate convincingly that the complainant and her children were not in a place where they had a reasonable expectation of privacy” – in other words, it was for the magazine to prove that the complainaint could not have had the relevant reasonable expectation. Few will mourn a tightening of the privacy rules, but this reversal of the burden of proof might very well go too far.