Our Patchy Law of Privacy — Time to do Something about It
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb01842.x |
| Published date | 01 November 1990 |
| Date | 01 November 1990 |
CASES
Our
Patchy Law
of
Privacy
-
Time
to
do
Something
about It
Basil
S.
Markesinis”
The
Facts
In
Gordon Kaye (by Peter Froggatt his next friend)
v
Andrew Robertson and Sport
Newspapers Ltd
(as yet unreported) the Court of Appeal unanimously condemned an
offensive intrusion into the actor Mr Gordon Kaye’s privacy and made what are,
so
far,
the strongest appeals to Parliament to reform our patchy law on the important issue of
privacy.’ Mr Kaye’s sufferings started with the storms of last winter. He was then
severely injured by a detached piece from an advertisement hoarding. It smashed through
the windscreen of his car and severely injured his head. For three days after this incident
which occurred on
25
January, he was on a life-support machine; another seven days
followed in intensive care. His condition remained critical throughout this period. Visits
were severely restricted, not least in order to limit the risk
of
infection. As is usual, complete
calm and peace was ordered to facilitate recovery; and
so
as to ensure that those medical
decisions were observed, a special notice was pinned on the door of his room to this effect.
The two defendants were the editor and owning company of the
Sunaizy
Sport.
This
is a weekly publication which the Judge at first instance described as having ‘a lurid and
sensational style.
’
Lord Justice Glidwell who, along with his brother judges inspected
some recent copies of this publication, thought it had a strong bias to pornography. The
issue of
4
March, which eventually published the Kaye story, leaves little doubt of this
since over a photo of Mr Kaye lying asleep (or, probably, unconscious) in bed is printed
a photo of a scantily-clad woman with the title ‘red-hot Donna had four men in the snow.’
Disregarding the notice on the door the defendants’ agents entered Mr Kaye’s hospital
room where they photographed him with a flash light and took an interview of sorts. At
the trial the editor admitted
-
proudly one suspects
-
that his staff had achieved ‘a great
old-fashioned scoop.’ He also accepted that other publications might well be willing to
‘pay large sums of money for the privilege’ of talking to and photographing Mr Kaye.
Though the defendants claimed Mr Kaye had consented to all this, the available medical
evidence suggested that he was, at best, only in very limited control of his faculties. Indeed,
a quarter of an hour after the alleged ‘voluntary’ interview had taken place Mr Kaye had
no recollection
of
the event. Though in the subsequent publication the defendants claimed
to have been motivated by a desire to inform Mr Kaye’s fans of the state of his health,
the facts described above (and given more fully in the judgment) point in another direction.
For the average reader this lurid and sensational journalism must have had much baser
motives.*
Mr Justice Porter issued a series of orders, in effect banning the publication of the story
(in its original form). The defendants appealed and Glidwell, Bingham and Legatt LJJ
*Professor of Comparative Law, Queen Mary and Westfield College, University of London.
1
2
An earlier appeal
to
the same effect by Sir Robert Megarry VC in
Mulone
v
Metropolitan Police
Commissioner
[1979]
Ch
344, 380
went unheeded.
The
Sunday
Times
of
8
April,
1990
carried a
long
story about the paper’s publisher whom
it
described
as
the ‘soft-porn king’ whose activities have earned him a place in the list of Britain’s
200
richest people.
802
Tne Modern Law Review
53:6
November
1990 0026-7961
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