“Show us the baby”

The Court orders that a new and frightened young mother be left in peace.

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

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

Photo: Getty Images
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Bomb Isil? That's exactly what they want

The government appears not to answer the nature of its enemy, warns Maria Norris.

As MPs are set to vote on further airstrikes in Syria, it is difficult to shake off the feeling that the government does not fully appreciate the complexity of the problem Isil poses. Just a cursory glance at its magazine, the pronouncements of its leaders and its ideology reveals that Isil is desperate for Western bombs to fall out of the sky. As Martin Chulov argues, Isil is fighting a war it believes was preordained since the early days of Islam. Isil’s obsession with the city of Dabiq, in Northern Syria, stems from a hadith which prophesises that the ‘Crusader’ army will land in the city as a precursor to a final battle where Islam will emerge victorious. Dabiq is also the name of its magazine, which starts every issue with the same quote: "The spark has been lit here in Iraq, and its heat will continue to intensify -- by Allah's permission -- until it burns the crusader armies in Dabiq". Isil wants a war with the West. If we don’t negotiate with terrorists, then we also should not give them what they want.

Further, bombs are indiscriminate and will inevitably lead to the suffering of those trapped in Isil territories. Isil is counting on this suffering to swell their ranks. Civilian suffering from airstrikes only underline the narrative that the West is at war with Islam, which plays directly into Isil’s hands. And despite misleading headlines and the genuine government concern with individuals fleeing to Syria, Isis is supremely unpopular. It is no wonder that its magazine is filled with glossy adds begging people to move to its territories.  You cannot be a state without people. Terrorist attacks such as Paris thus have a two-pronged purpose: they provoke the West to respond with its military, and they act as a recruitment drive. The fact that fake Syrian passports were found around the sites of the Paris attacks is no coincidence as Isil are both seeking to stem the flow of refugees from its territories and hoping to provoke an Islamophobic backlash. They hope that, as more Muslims feel alienated in the West, more will join them, not just as fighters, but as the doctors, nurses and teachers it desperately needs.

In addition to this, airstrikes overlook the fact that Isil is a result of what Fawaz Gerges calls a severe, organic institutional crisis in the Middle East. In a lecture at the London School of Economics earlier this year, Gerges pointed out the dysfunction created when a region that is incredibly resource rich also is also deeply undemocratic, riddled with corruption, food insecurity, unemployment and poverty. This forms an institutional vacuum that is filled by non-state actors as the population does not trust its political structures. Further, the civil war in Syria is also the site of the toxic soup of Middle Eastern state dysfunction. Iran supports Assad, Saudi Arabia and the Gulf countries, fund anti-Shia groups in Syria. Throw in the Kurdish conflict, Turkey’s ambiguous position and Russian bombs, it is difficult to see how airstrikes will solve anything.

Finally, it is crucial that Isil is seen as a direct result of the Iraq war. The American-led invasion destroyed the institutions, giving the Shia majority power almost overnight, creating deep dissatisfaction in the Sunni regions of Iraq. On top of this thousands of foreign fighters flooded Iraq to fight the invaders, attracting disenfranchised and angry Sunnis. The result is that since 2003, Iraq has been embroiled in a sectarian civil war.  It is in civil war, inherently connected to the Iraq War, that you find the roots of Isil. As even the Prime Minister concedes that ground troops are necessary, albeit it regional ground troops with its own set of problems, it is important to consider what further monster can arise from the ashes of another ill-thought out military intervention in the Middle East.
We have had decades of military intervention in the Middle East with disastrous consequences. Airstrikes represent business as usual, when what we actually need is a radically new approach. Who is funding Isil? Who is buying its oil? How to curb Isil’s recruitment drives? What can be done about the refugees? How to end the conflict in Syria? What happens to Assad? These are questions hopefully being addressed in talks recently held in Vienna with Russian, Ira, the USA, France, Syria’s neighbours and the Gulf states. Airstrikes do not answer any of these questions. What airstrikes do is give Isil exactly what it is asking for. Surely this is reason enough not to bomb Syria. 

Maria W. Norris is a PhD candidate and a teacher at the London School of Economics and Political Science. Her PhD is on the UK counter-terrorism strategy since 9/11 and its relationship with identity. She tweets as @MariaWNorris.