“Show us the baby”
The Court orders that a new and frightened young mother be left in peace.
By David Allen Green Published 18 November 2011 18:33
As this blog has previously set out, there is actually no such thing in England and Wales as a single "law of privacy".
By this I mean that there is no free-standing general right of legal action to protect privacy against any and all threatened and actual intrusions. Instead, there is a bundle of civil and criminal laws relating to privacy which, when taken together, constitute the laws of privacy; just as a range of specific laws from copyright to patents constitute the laws of intellectual property.
Some of these privacy laws are common law (or "judge-made"), most notably the laws of confidentiality and the misuse of private information, and such judge-made law always risks being dismissed as by "unelected judges".
Many of our privacy laws are on a statutory basis: blackmail under the Theft Act, the Data Protection Act, the Regulation of Investigatory Powers Act and, often overlooked, the Protection from Harassment Act 1997. It under this last Act that the interesting judgment was published today on the privacy of Hugh Grant's daughter and her mother.
The short judgment is sobering reading for anyone concerned with the modern practices of the tabloid press and of those who get stories and photographs for them. The two claimants are the mother of Hugh Grant's child, and the daughter. The judge details the evidence put before him:
On more than one occasion she has been followed by a tall bald man in his thirties who drives a black Audi car. The number of the registration plate starts with the letters LV05. On one occasion while she was being followed it so distracted her that she collided with the car in front which had stopped suddenly. About two weeks ago the driver of the car followed a friend of the First Claimant. He spoke to the friend and said "tell Tinglan that she is being followed by a black Audi". She found this distressing. Since then the pursuit of her has become much worse and her life has become, she says, unbearable.
In the issue of the Daily Mail dated 2 and 3 November there were published stories about Hugh Grant and the First Claimant having had a daughter together. She has had lots of calls from journalists and she has had voicemail messages and text messages from journalists. There have been photographers outside her home every day. At the beginning they would hide themselves, sitting in cars behind newspapers. Since then, they have become more and more over confident and do not seem to care about being seen or about intimidating her.
On one occasion she went to the supermarket. On her return there were four or five men behind her car with big cameras. She was scared to get out of the car. When finally she did get out of the car two women who were also waiting there called her by name whilst the photographers took photographs. She was frightened of the experience.
On some afternoons in the last few days there have been ten or more people outside her house. On some evenings they have not left, but stayed all night, including when it was raining. She and her neighbours have been kept up by the flashing of cameras.
The photographers have also spoken to her neighbour and have tried to persuade her neighbour to telephone the First Claimant to speak about the baby. The neighbour has warned her of this. The First Claimant has not been able to meet with friends because the photographers follow her wherever she goes, and when she meets someone the photographers follow that person to try to get information about her.
The First Claimant has not been able to take her daughter outside. On 10 November she did take her daughter out to the doctor. She had to cover the child with a blanket. On their way back visiting the doctor they were followed. She had to call her mother for assistance in returning to the house.
The First Claimant's mother then went back out of the house in order to try to take photographs of the photographers who were harassing and following the First Claimant. She saw one man in a car with photographic equipment. She turned in order to prepare her camera. He started the engine of his car and drove down the road towards her so that she had to run. The man followed her down the road shouting. He appeared to be swearing at her and he was taking photographs. At the end of the road he turned back in a u-turn. The First Claimant's mother was really frightened. However, she managed to take two photographs of the man in the car and of the registration number of the car.
On 10 November three photographers were outside the First Claimant's house. One was wearing a yellow jumper. He said "Hello Tinglan" and then proceeded to take photographs. She found his behaviour intimidating. Her parents who are staying with her are prevented from leaving the house.
The First Claimant is unable to look after her daughter in a normal way. She has had to cancel appointments, including ones for her child. She is frightened to drive with her child because the distraction makes it unsafe.
A complaint to the Press Complaints Commission did not work:
On 3 November 2011 through her solicitor the First Claimant has complained to the Press Complaints Commission for breaches of clause 4 (harassment) of the Code, and expressing concern that the editors may be using material obtained in contravention of the code. [...]
Following the complaint to the Press Complaints Commission, the PCC circulated a warning to editors on the same day. While Mr Thomson understands that some journalists and photographers stopped attending at the property, a number of them persisted and have acted as described by the First Defendant.
Hugh Grant even tried the direct approach:
On Sunday 24 April the News of the World published the front page article already referred to. Hugh Grant is working abroad. When he attended at the home of the First Claimant on 3 November, as he has informed Mr Thomson, he asked the photographers if there was anything he could do or say to make them leave a new and frightened young mother in peace.
They said "show us the baby".
He refused. He asked if they thought it was acceptable for grown men to be harassing and frightening a mother and baby for commercial profit. They shrugged and took more pictures.
There are some important points to make about this judgment. First, all the evidence cited by the judge is from or on behalf of the claimants. It is their account of what happened. There is no evidence from the reporters or photographers. They were not represented. Moreover, the evidence supporting the claimants' case has not been tested by cross-examination. The claimants' supporting evidence has been adopted by the judge as it was given. The injunction made is against persons unknown.
Second, it shows the continuing weakness of press self-regulation. Whilst the editors who subscribe to the Code can call off own their reporters and photographers, the various press agencies (that make their money from hawking these stories around Fleet Street) and freelance paparazzi are simply not affected. The intrusions -- and risks -- are effectively outsourced on a commercial basis by the tabloids.
Third, all the judge is ordering is for the reporters and photographers to do what they should be doing anyway. Correctly, there is no explicit mention of the Human Rights Act, or even of the law of misuse of private information, or any "balancing exercise". No special treatment is given to the press or any right to free expression. It is (rightly) treated as much of a straightforward harassment case as if it were a local but nameless stalker.
And finally, if the claimants' evidence is even broadly correct -- and the judge found it compelling -- then it demonstrates that the dark days continue. The tabloids, and those who supply them with content, retain their casual and unlawful disregard for the privacy of non-public figures. Regardless of the aggrieved protestations and heady promises of tabloid editors, their agents and operatives still shrug and take more pictures.
David Allen Green is legal correspondent of the New Statesman
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19 comments
While I certainly have sympathy for Hugh Grant, his ex and their child, the Harassment Act 1997 is a dangerous piece of legislation. It can be used to gag through the back door and various other abuses by claimants. It was not intended to be used against the press in this way.
I have compared it to its equivalent legislation in Massachusetts, which is much tighter. There, the claimant actually has to be in fear. There is none of this, I do not like the contact from this person nonsense.
It appears it would have been more appropriate legally to use the claimants' right to privacy, but as Max Moseley found out, there are no interim injunctions on offer for this. Yet, photos are one area of privacy law that have been tested in Strasbourg.
Was the hearing for the injunction held in private? Was a claim form issued? Lets see a copy of the actually order/injunction. Were the photographers told to stay so many feet away?
I am also thinking that maybe the woman, being Chinese, was extremely distressed because she comes from a country without freedom of expression. She probably does not understand how a free press works.
And it appears an infant has a right to privacy, but how does an infant know they are being harassed? Only if a solicitor says so on her behalf? Shouldn't the mother have prepared the Witness Statement?
Personally, I think the Judge has overstepped the mark on this. The Judgment is not detailed enough. Why isn't it an interim injunction until he hears from some of the photogarphers? He made no mention of Articles 8 & 10 and it appears he should have. The Judge is actually giving evidence on Monday in front of the Joint Committee on Privacy. And as far as I am aware, there is no authority or case law in the UK establishing who a public figure is.
It could certainly be argued that if you get pregnant with a celebrity out of wedlock and you are no longer with the celebrity, you could be fair game for the press. For instance, is she a golddigger? Was Hugh Grant set up? Why are they no longer together? She wasn't breaking up a marriage.
I'm wondering if this woman came in for particularly bad targetting as the tabloids' way of 'getting back' at Hugh Grant for his work on Hackgate.
She's just had her first baby. As well as being a joyful, exciting time it is also exhausting, stressful and sleep-deprived. Women in the early weeks after childbirth are vulnerable to post-partum depression.
Harassment of this sort would challenge the most mentally robust of us. I find it extraordinary that Elaine Decoulos attributes this woman's distress to the fact that she comes from China.
Have there been other cases under the Protection from Harrasment Act 1997 where the defendant hasn't been arrested, questioned, charged and convicted? Seems very odd.
Fiona, that is not what I said. I was only pointing out that she is likely unfamiliar with what it is like to be in a country with a free press. I am sure she is stressed, sleep-deprived and exhausted. However, any western woman in her situation would know the press would be after her. Maybe she had no clue this would happen to her and it has added to her stress. However, does that mean she should get special treatment under the law, as appears to be the case.
You are also one-sided and assuming she is the innocent party. I am not so sure. Why are she and Hugh no longer together? It looks to me that this woman may have used the oldest trick in the book to try to snag a wealthy man and it backfired. She probably thought Hugh would marry her. I am sure this has added to her stress, but that is her problem and she needs to deal with it.
I realise she looks like the victim in all this, but you need to look at the big picture. Maybe she or Hugh should have hired a bodyguard if she was so distressed. That's what celebrities in America do.
There was a famous case in America years ago when Jackie Onassis tried to restrain a particular photographer. I think she initially got the order, but then it was overturned. He took some iconic photos of her. Mind you, this was the widow of an assacinated President.
The Judgment is not detailed enough. Why isn't it an interim injunction until he hears from some of the photogarphers? He made no mention of Articles 8 & 10 and it appears he should have. The Judge is actually giving evidence on Monday in front of the Joint Committee on Privacy. And as far as I am aware, there is no authority or case law in the UK establishing who a public figure is. http://www.windows101.org/
"I find it extraordinary that Elaine Decoulos attributes this woman's distress to the fact that she comes from China."
Racism is hardly extraordinary. Elaine's just admitted she's got no idea that this woman and Hugh might have got together for the fun of it - evidently she can't imagine that a Chinese woman has normal human feelings.
There is no possible public interest in this case. Children have a right to be protected against intrusive journalists, and Elaine's silly contention that this doesn't apply to babies is as much nonsense as her ignorantly speculating about the private lives of two people unknown to her.
@Yonmei
>"I find it extraordinary that Elaine Decoulos attributes this woman's distress to the fact that she comes from China."
>Racism is hardly extraordinary.
You what?
An observation that one country has a free media and another does not becomes ... abracadabra ... racism.
Oh boy.
Yes a privacy injunction may be deserved but doing it ex parte is very dangerous. We've been there before.
Why should the press have "focussed all their attention on Hugh Grant"? What does any of this have to do with anyone except the people directly concerned?
There was a case in Belgium some 15 or so years ago (I can't remember exactly) in which the secretary of a businessman away on a trip received a "Final Notice - Legal Action Will Be Taken If You Don't Pay At Once" and paid it without checking exhaustively whether it was based on goods ordered. It was in fact a scam. The businessman taook the scammers to court, and the judge said "Tough - you should have taken precautions to stop that sort of thing happening - it's your own fault".
Fine. So the businessman waited a year or so, sent a scam invoice to the judge's secretary while the great man was away, and took the money. When the judge complained bitterly, the businessman thumbed his nose and told him the Belgian equivalent of what's sauce for the goose etc. Shortly thereafter the law was changed to stop thi9s sort of thing happening.
So what's to prevent Hugh Grant hiring half-a-dozen bods with cars from following and harassing the wife or daughter of the offending newspaper proprietors to see how they like it. Surely that's no more expensive than a court case, and probably much more effective.
O dear. I'm not a lawyer but even I can work out that perhaps the injunction was granted ex parte, meaning the other party was not at the hearing to give their side of the story, because there is no story to tell. In my view also it's better to nip this awful tale in the bud -surely it would be preposterous and cruel to wait and see whether an ordinary member of the public is evidently in fear - what sort of evidence would prove this? It doesn't bear thinking about really..
Also, the idea of a so-called celebrity being somehow different to an ordinary member of the public is probably a fantasy. On the other hand any member of the UK public at all times acts of our own volition and according to our own authority without fear or favour. That's how free we are, one can tell. This is because of our largely unwrit, generous and flexible UK constitution.
If I were the woman being harassed, I'd invite all of the journos in and spike their tea with rohypnol. She could sell all their expensive camera equipment and give them a good hiding.
"I am also thinking that maybe the woman, being Chinese, was extremely distressed because she comes from a country without freedom of expression. She probably does not understand how a free press works. "
I can't even begin to explain how amazingly stupid this is.
I'm going to point a small finger of blame for this at the celebrities themselves, (I know the mother is not one), the deals done for wedding ,baby photos et al has in many respects created the market for this material. That whinge out of the way, have to say if that was my wife/partner and child there would be a pile of defunct Nikons on the road. Absolutely disgraceful behaviour. I would support an initial injunction based only on the "victims" testimony , we need such things to protect people from abuse. The other side can seek to get it overturned via legal channels by contesting the evidence.
Thank you Flossy for defending my comment and pointing out that it was NOT racist. I was highlighting a legal fact. The deduction provided by Yonmei, who I assume is Chinese, unless he or she is an imposter and actually one of my legal opponents, is like saying I am racist if I say women in Saudi Arabia are not allowed to drive. Does that mean I am racist against Saudis? Most certainly not.
Yonmei, assuming you are Chinese and possibly not familiar with English law, for the record I will tell you how I came to my honest opinion based on a few established facts:
1. Hugh Grant's ex is Chinese and did not grow up in a land of free speech and with tabloid photographers.
2. They are no longer together.
3. The injunction was granted ex parte, meaning the other party was not at the hearing to give their side of the story.
Dave Angel raised an important point and maybe I will write a separate comment about this, seeing as I have been a defendant in a civil claim under the Harassment Act 1997, where false evidence was used to defame and then libel me across the British press. The injunction was then outrageously served to me in Massachusetts and I am still trying to resolve the mess. And my opponent in this is yours truly, David Sherborne, the barrister who got this injunction for Hugh Grant's ex and is representing all the victims in the Leveson Inquiry.
For the record, I applied to be a Core Participant in the Leveson Inquiry, but was refused. The Judge said it was not because David Sherborne could not represent me. However, I have my doubts about that. I am still appealing his decision.
Eliane, you wrote above "I have compared it to its equivalent legislation in Massachusetts, which is much tighter. There, the claimant actually has to be in fear. There is none of this, I do not like the contact from this person nonsense."
But the judges opening paragraph states " He spoke to the friend and said "tell Tinglan that she is being followed by a black Audi". She found this distressing. Since then the pursuit of her has become much worse and her life has become, she says, unbearable." Distress -fear, I think that is sufficient don't you. Or from the female point of view our version offers better protection than the Massachusetts one. Oh agree with you Chinese statement, not racist, maybe other things, but not racist.
Racist or not, it certainly comes from ignorance and is completely unfounded. An assumption about subconscious causes of distress are not, as Eliane puts it, "legal fact". Some here have accused Eliane of racism because her comment assumes that 1) Chinese people are too simple to understand that in a foreign country things might be done differently and 2) that this would cause distress of the kind described by the judge. That this is a distortion of what the First Claimant actually went through is putting it mildly.
For the record, as we say in America, I just tried to leave another detailed comment in reply to Ian & Oliver's last comments, but it did not post. Just testing to see if this will post & if I am actually being gagged on this site.
Agree, straght forward harassent of a non-public figure. The Press should have focused all their attention on Grant, who is in position to do something about it.
This was a without notice application. These are quite regular and the other party has the right of appeal against the decision. What is unusual about this judgement appears to be that it is given against not just unnamed but unidentified respondents. This makes it an interesting precedent.
As to whether this is justified based on the facts: well, if the facts are not what the Claimant says they are, then they can always apply to have the injunction rescinded. If they are as they say they are then it surely is a no-brainer that the injunction is justified. (Ms Decoulos' wild speculation as to motive being rather irrelevant).
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