European Directives — the Emerging Dilemmas

DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb00898.x
Publication Date01 May 1991
AuthorGeraint G. Howells
The
Modern
Law
Review
[Vol.
54
a time. Clearly there are competing values here.
A
person
in
the news, must expect
to attract the attention
of
newsmen. On the other hand, excessive attention may
amount to a nuisance.
It
may be that this sort of conduct is already covered by the
law of public nuisance, but
it
may be better to have clear statutory guidelines. What
is proposed is that
a
citizen who can make out a case of undue harassment should
be entitled to an injunction against the media as a whole
-
a sort of class action.
But the ban should not be absolute:
it
should specifically be provided that the court
should not grant such an injunction unless the subject is willing
to
undertake to provide
reasonable and defined opportunities for photography and interviewing.
If
one may
say so,
HRH
the
Princess of Wales probably does not begrudge being photographed
-
she would just like some time off now and again.
(b)
Voyeurism.
This is exemplied by the shooting of ‘bedroom’ scenes with a
telephoto lens, or the printing of salacious sexual gossip of interest
to
the public
but not
in
the public interest. There is no reason why this conduct should be allowed
at all. There should be a specific defence that the subject holds a position of public
trust and the activity sought to be reported is such as
to
disqualify him from holding
such position
in
the minds of most reasonable persons. Since this involves a value
judgement
it
is essential that
it
be exercised
in
a consistent manner, which is not
likely to happen unless there is a specialist media court.
(c)
Commercial advertising.
The use of a living person’s name or likeness for the
purpose of promoting a commercial product or service should be prohibited unless
his consent is obtained.
(d) Quasi-trespass.
As a piece of valid law reform
in
its own right, the law of trespass
should be amended to declare that a licensee (whether gratuitous or for value) has
a cause of action against a person who interferes
with
the enjoyment of the licence,
if
he knows or has reason to believe that that is what he is doing. Because the media
do sometimes have to trespass there should be the same exception as
in
the
case
of Voyeurism, above.
To
all of the above classes there should be an overriding exception: they should
not apply to a story rcvealing that the subject
is
guilty of a crime for which the
sentence may be imprisonment. The ordinary law of defamation should, of course,
continue
to
apply.
European Directives
-
the Emerging Dilemmas
Geraint
G.
Howells”
Although the United Kingdom has been a member
of
the European Community
for almost twenty years, there is no guarantee that individuals will be able
to
rely
upon European law
in
the face of conflicting domestic law, or to persuade the Courts
that domestic law should be interpreted
in
line
with
the corresponding provisions
of European law. Against this background, this note considers two recent decisions,
Foster
v
British
Gas’
and
Finnegnn
v
Clowney Youth Training Programme.2
Whereas the approach of the European Court of Justice
in
Foster
clearly supports
*Lecturer
in
Law, Unit for Commercial Law Studies, University
of
Sheffield.
I
2
Case
188/89,
11990)
IRLR
353.
[
19901
2
All
ER
546.
456

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