In 2002, the California Coastal Records Project took to the skies to monitor the erosion of the Golden State’s shoreline. Unbeknownst to them, one of the over 12,000 photos compiled captured the sprawling residence of Barbra Streisand. Despite the image languishing in archival obscurity, the singer and actress promptly filed a $50 million lawsuit against the project on invasion of privacy grounds. As the news broke, hundreds of thousands dialled-up and flocked to the website to catch a glimpse of the offending aerial. Henceforth, any effort to suppress information that spectacularly backfired is said to have fallen prone the Streisand Effect.
As a cherished tenet of democracy, freedom of speech is reluctantly constricted. Nonetheless, alongside incitement to violence, the vague notion of privacy marks a border of acceptable speech: the lesser-known flipside of freedom of the press, freedom from the press.
Definitions of ‘privacy’ are as varied as the subjects to whom it applies. The variant I am concerned with here is neither data privacy nor invasion of property (intrusion upon seclusion as covered by the Fourth Amendment) nor government surveillance. All are important discussions heatedly raging elsewhere. What I wish to explore here is the relationship between the press and public figures.
As a starting assumption, one could affirm that everyone has a moral right to privacy, no matter how much success they have achieved, how omnipresent they are on screens small or silver, or how high their social media posting rate is. David Bowie once said: “Fame itself… doesn’t really afford you anything more than a good seat in a restaurant.” The revelation that fame and happiness seldom go hand in hand won’t come as news to most, yet outrage persists towards public figures who plead for a degree of privacy: “How can they profit from their celebrity and demand privacy at the same time?” Although this is by no means a litigation of their case, the Duke and Duchess of Sussex come to mind.
The Legal Right to Privacy
Article 12 of the 1948 United Nations Declaration of Human Rights states “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Around the world, over 150 national constitutions make specific mention of personal privacy rights, with the notable exception of the United States. Nonetheless, in the late 19th century, as emerging sensationalist journalism and photography combined to birth the ‘tabloid’, Samuel D. Warren and future Supreme Court Justice Louis Brandeis struck back with ‘The Right to Privacy’, a Harvard Law Review article that formed the legal bedrock of privacy disputes. Since, the tort of ‘public disclosure of embarrassing private facts’ has been argued in courts across the country.
As professional information seekers, journalists need only invoke ‘newsworthiness’ to repel all accusations of privacy violation. Essentially, any information pertaining to a prominent figure can be considered in the public interest and thus is newsworthy. In the U.S., the media defend their right to inform the masses by brandishing the First Amendment of the Constitution, which prohibits any law “abridging the freedom of speech, or of the press.” Almost all recent events and details about public figures are hence legally publishable. Although court verdicts practically always favour the press, building upon a heightening tower of precedent, when the digging has reached excessive depths, or even true facts have been reported that aren’t newsworthy (such as sexual orientation or medical history, for example), the plaintiffs have occasionally been successful. Yet hollow be their victories, as the information is already out there.
However, this is excepting cases where the information was gleaned by means deemed illegal by more concrete definitions of privacy. In 2011 in the United Kingdom, Rupert Murdoch’s News of the World was at the centre of the infamous ‘phone-hacking scandal’. The ensuing Leveson Inquiry, expanded into a sweeping investigation into British journalistic practices, concluded misbehaviour and “recklessness in prioritising sensational stories” was commonplace in the industry. The inquiry called to the stand figures from across the board, from former prime ministers David Cameron and Tony Blair to Hugh Grant, Piers Morgan and Murdoch himself. The affair took the News of the World off the shelves after 168 years, prosecuted members of its editorial staff and saw the establishment of the self-regulatory Independent Press Standards Organisation in 2014.
In the U.K., one could argue that freedom of speech is relatively stifled by regulatory agencies such as Ofcom for broadcast media and the IPSO for newspapers. However, the latter remains a non-governmental agency, notably funded by the over 2,500 print and online member publishers it regulates. In theory, the body assists private individuals seeking redress against the media and can impose the printing of corrections or their adjudications. In practice, it preaches the ethical guidelines in their ‘Editor’s Code’, many of which are violated daily. Alongside standards of accuracy, the confidentiality of sources and protections for minors feature two crucial caveats: prohibition of invasion of privacy, except when involving genuine public interest, and of divulging personal details (race, gender, religion, sexual orientation or disability), except when directly relevant. Even when following the code of ethics to the letter the wiggle room remains large.
Conversely, private entities in the U.K. have legal recourse to the ‘super-injunction’ (far more comical in name than in reality): a gag order that prevents information from being made public, including the existence of the directive itself. The term was first coined during the Trafigura fiasco in 2007, during which the British oil trader attempted to silence revelations that it had knowingly disposed of toxic waste from a tanker in port waters of the Ivory Coast. It is worth noting that such a drastic measure also frequently invites the Streisand Effect (although to name names here would technically be illegal).
The Typology of Fame
Without clear boundaries defining where public life begins and ends, deciding how hard to pry falls upon society at large. If all are entitled to some privacy, the measure of which depends on the type of public figure considered.
The first distinction needs to be made between those who ventured intentionally or haphazardly into the public eye. There are people who are thrust into the limelight through no fault of their own, perhaps even in spite of their resistance. These include those driven to scientific excellence who, beyond acclaim within their field and the easier funding for future projects, never expected stardom. Few would argue such people are entitled to absolute privacy, and yet famous Albert Einstein was.
Their counterparts are those who sought fame and are among the blessed few who found it: by outshining or outmanoeuvring their peers they stand tall above the pack. Actors, politicians, sports stars, writers, influencers and painters all share an economic incentive to stay at the highest level. These willing public figures can be further divided into three groups: those famous by trade, those whose claim to fame is fame alone, and elected officials.
The first group comprises ‘traditional’ celebrities: loved or loathed by the public, they bask in the spotlight by skill and good fortune. Despite the benefits accruing from their brand, anything outside of their field of expertise need not be common knowledge. Even actors, whose career prerogative it is to flaunt themselves on screen for as much time as possible, owe nothing beyond the characters they’re inhabiting. Nonetheless, exposure of their darkest secrets is often justified by the media as saving the public from being duped by false idols. Tolerance for disassociating on-screen talent from behind-the-scenes shenanigans is at an all-time low.
The next group may be best described as a ‘kategory’, encompassing those having mastered the art of capitalising on celebrity status alone, of which the Kardashians are undoubtedly the most profitable archetype. Having amassed billions off the back of the trading the details of their daily lives, disbelief at their demands for privacy could certainly be anticipated. Nonetheless, they remain private citizens with total sovereignty over what they share or not.
Concerning politicians, however, the calls for disclosure justifiably grow louder. Under the auspices of democracy, public officials do belong to the public that elected them: not in body or soul, but by dint of representation. Although practical ability in the exercise of duties is of primary importance, this representative function means a sizeable portion of their personal details are owed to constituents insofar as the information could prevent them from being misled. Any deed may well signal a character trait unsuitable for the job, and therefore be of public interest. One could also argue that politicians enter this bargain willingly: no vice has ever gone unpunished (barring cases where powerful friends trump one’s powerful enemies). Cruel is the irony that those hungriest for power are also disproportionately tempted by the forbidden. Infidelity, disparaging mumblings and even personal health issues have often seen their newsworthiness tried and tested. Add to this mix increasingly polarised political motives, and almost no topic is untouchable. The cases of Bill Clinton and Gary Hart demonstrate that exposures of indecency can be weathered or fatal.
Particularly of concern at present is whether royalty falls into the latter category (although they are by no means elected, they do ‘serve’ at our pleasure) or another out-of-bounds branch unique to their special status in the lore of the land. The Duke and Duchess of Sussex’s tribulations with the tabloids are but the most recent episode in a centuries-old conflict over the sanctity of the monarchy. Modern sensibilities demand that no one be exempt from scrutiny, especially someone in a position of power. On the other hand, as little more than a symbolic embodiment of national legend, would denying the Crown respectful distance not ruin the theatricality entirely? Unfortunately, this solution was swept off the table in light of the severe criminal allegations circling Prince Andrew (not to mention his abysmal defence). Nonetheless, treatment by the tabloids of female royals and their inescapable haranguing by the paparazzi has been a stain on British journalism for decades. No one has further to fall than a literal princess, and so every slip-up is hotly anticipated and documented. Almost 25 years on, the debate over the role of the press in Princess Diana’s death continues.
Where does this leave us?
Although enshrined as a human right, in practice questions of privacy generally come down to semantics and societal interpretation. Should a plaintiff feel confident enough to overcome odds dramatically in favour of the press, such disputes are settled in court on a case-by-case basis.
Social media has once again made a ghastly mess of things, blurring the formerly clear line between who counts as a public figure. Nonetheless, the fundamental rights of the individual remain the same, even if further distinctions are too taxing to consider. In all cases, the famous are uniquely entitled to any detail they do not consent to share. The breadth of privacy this represents decreases as what the individual opens up to the public domain increases. This is the trade-off that comes with the territory of fame; it is not a binary condition. The public interest delves deepest into the lives of elected officeholders, as almost all could inform electoral decisions.
Such is the fallibility of humankind that the appetite for the darkest secrets of the famous persists. In a free media market, the tabloids would be remiss not to cater to the demand. We share a sense of pride in success and self-reassuringly distance ourselves in failure. Schadenfreude is sweetest the higher the perch from which the victim falls. This condition has been endemic in the culture long before it metastasised into ‘cancel culture’. We got bored simply watching the fall and now delight in providing the push.
Barring a universal answer to the question of “How can you be famous and demand privacy?” the most straightforward answer would be: “How can you have nothing better to do than to care?”