If you decide to keep a dangerous dog, well-known for its generally intemperate and often vicious nature, and ignore, or worse, deny the constant and sensible advice you are given pointing out the danger you can hardly expect much sympathy when that dog bites you. And so it is that David Cameron’s pitiful cries of foul play will fall on deaf ears.
In case you missed it, Cameron’s advisers claim that the Prime Minister had an agreement in place that prevented newspaper editors from publishing any photographs of him and his family on holiday in exchange for some posed photographs in advance. Despite this, four newspapers have since published such photographs depicting Cameron in a state of some undress and much distress as he tries, in an apparently ungainly fashion, to remove his swimming togs underneath a Mickey Mouse towel. His sunburnt state prompting comment that he had gone from blue to red.
The Prime Minister may well complain that these photographs or the story accompanying them breach his privacy or are in breach of confidence (depending on the formality of this arrangement). In response, I expect the newspaper editors will claim that the public interest in the expression justifies the breach. Yet the irony in this is too great to ignore: when other people’s privacy is at stake, Mr Cameron is exceedingly respectful of press freedom – there are ‘rubicons’ and pragmatic dalliance hindering the creation of a regulator – but when his own privacy is at stake suddenly he’s a Nimby.
There are two issues arising from this incident that deserve some attention: first, there is the state of the term ‘public interest’, for which this event serves as a useful lens; secondly, there is the existence of press agreements to prevent discussion about politicians.
As to the first, I have said elsewhere on this blog about the law’s generous approach to the definition of public interest. Applied to this context, there is little reason to doubt that a court would find discussion about the number of holidays taken by the Prime Minister to be a matter of public interest. A judge might decide, though, that the photographs are a different matter and, as in Campbell v MGN Ltd  UKHL 22, that they go too far. The High Court recently adopted such an approach in AAA v Associated Newspapers Ltd  EWHC 2103 (QB). Of course, the photographs in that case concerned a child and, as we know from Murray v Express Newspapers Ltd  EWCA Civ 446, different considerations apply. In light of the well-established principle in the Strasbourg jurisprudence that politicians must demonstrate greater tolerance toward criticism than others (e.g., Lingens v Austria (1986) 8 EHRR 407), it seems more likely that the courts would conclude the photographs were a matter of editorial judgment – a consideration given particular emphasis in Trimingham v Associated Newspapers Ltd  EWHC 1296 (QB), see -.
Another reason for this view, and expanding the view I outlined elsewhere, it seems to me that the law’s approach to misuse of privacy claims in this context (i.e., Chancery and Queen’s Bench decisions) is increasingly detached from the ‘balancing’ methodology outlined in Campbell and more keenly centred on the principle of ‘zoning’, such that cases are decided according to whether a public interest exists or not, i.e., speech is either protected because it is in the public interest despite interference with privacy interests or it is not protected because the public interest is not at stake. Not all decided cases follow this pattern, but the overwhelming majority do.
Secondly, there should be some concern about the practice of ‘press agreements’ to limit public discussion about politicians. This is troubling since it presupposes some discussion has taken between politicians and the press to determine certain activities are not in the public interest and, therefore, should not be discussed. There are perhaps two issues with this. A) It calls to mind the comment often made by Mr Justice Tugendhat, amongst others, that matters of public interest are for the court to decide, not parties to an action, in order to ensure the public’s right to know is protected (see, e.g., TSE v News Group Newspapers Ltd  EWHC 1308 (QB). B) It is troubling that such agreements can arise without there being any public knowledge of them. Although the context here was trivial, it raises the possibility of more serious subject matter being concealed. It was one of Leveson’s recommendations that party leaders, ministers and front bench opposition should ‘consider’ publishing details of any meetings or other interactions with the press on a quarterly basis (Recommendation 83, p. 1816 of the Report); a recommendation that has yet to be implemented but which ought to extend to these sorts of agreements.
Perhaps after the summer holidays, an enlightened Mr Cameron might retrieve that ball he kicked into the long grass and make some progress with these proposed reforms.
Dr Paul Wragg is a lecturer in law at the University of Leeds and an academic fellow of the Inner Temple. He will be speaking about press regulation at the Society of Legal Scholars Annual Conference on Wednesday 4 September.