March 2010

Privacy & Personality Rights: Commercial Exploitation and Protection - Robert Deacon

PRIVACY AND PERSONALITY RIGHTS: COMMERCIAL EXPLOITATION AND PROTECTION BY ROBERT DEACON NIGEL LIPTON AND ROBERT PINKER FEBRUARY 2010 JORDAN PUBLISHING LIMITED BRISTOL UNITED KINGDOM PP 692 + xlviii PRICE £120 ISBN 978 1 84661 186 5

This book is primarily concerned with explaining the developing law of privacy. It covers the protection of privacy and reputation and the commercial exploitation of the celebrity image. Of unique interest are numerous case studies of adjudications at the Press Complaints Commission showing how the right to privacy is protected in practice. The case studies are of particular use to practitioners as a guide when advising on privacy related matters. The book also provides guidance on initiating claims and applying for injunctions with coverage of case law including Campbell v Mirror Group Newspapers, the Max Mosley case and the Hon Mr Justice Tugendhat's observations on super injunctions in LNS v Persons Unknown. There is also a substantial section on exploiting rights including copyright, rights in performance, sponsorship, merchandising, endorsement and publishing. Also included for reference are precedent letters, particulars of claim and the PCC Editors' Code of Practice and Making a Complaint.

This book was reviewed by Professor Ian Blackshaw who said:

We are living in an age obsessed with celebrities - whether they are film stars or sports personalities! Indeed, sport is now firmly an integral part of the world entertainment industry and sports stars enjoy the same adulation as film stars and also earn equivalent mega salaries and financial benefits.

Although this Book is concerned with celebrities from all walks of life including super models, such as Naomi Campbell - and the authors, a barrister, a solicitor and an international consultant to the UK Press Complaints Commission respectively, quite rightly make the point that all celebrities are public figures but not all public figures are celebrities - the Book draws on several examples of cases involving sports personalities. More and more their activities on and off the field of play are attracting the attention of the world's media, as the extra-marital affairs of Tiger Woods and the dalliance of John Terry, the former England Football Team Captain, have clearly demonstrated recently.

The Book deals with the fascinating subject of the law on privacy, reputation and the commercial exploitation of the image rights of celebrities, as well as the self-regulation of the print media through the UK Press Complaints Commission (PCC), which regulates unlawful and unjustified intrusion of the Press into the private lives of persons in the public eye. The text of the PCC Editors' Code of Practice, which the PCC is charged with enforcing, is set out in one of the Appendices to the Book.

In a Foreword, the internationally well-known ‘publicist', Max Clifford, describes the Book as timely and providing a "comprehensive guide to all of the many often complex legal issues regarding famous people's relationship and dealings with the media."  And your reviewer would entirely agree with him.

However, he goes on to say that the Book is the first of its kind to deal with this developing area of the law, but your reviewer would not agree with him on this point. In fact, the first Book on the legal protection and commercial exploitation of image rights was the Book ‘Sports Image Rights in Europe', published five years ago in the TMC Asser International Sports Law Centre Series of Books, of which your reviewer and Dr Robert Siekmann, the Director of the Centre, are the Editors and of which, it may be added, a second edition of this Book is currently in preparation.

Of particular interest to sports lawyers, administrators, agents, marketers and promoters in the Book under review is the comprehensive coverage of the case in 2008 of Max Mosley, the former President of the FIA - the World Motor Sport Governing Body - whose extra-curricular activities were "exposed" by the British ‘News of the World' Sunday Newspaper. In that case, Mosley took part in what was described as a ‘depraved Nazi-Style orgy' with a number of women, one of whom secretly videoed the activities and passed on the footage to the newspaper. Mosley brought a legal action in the English High Court against the newspaper for breach of confidence and/or the unauthorised disclosure of personal information in breach of his right to privacy under article 8 of the European Convention on Human Rights of 1950. The Court agreed with the claim on both grounds, namely an "old-fashioned breach of confidence" as well as a breach of the Article 8 rights of those involved in the orgy, and awarded Mosley £60,000 in damages. Mosley is also pursuing a case before the European Court of Human Rights and it will be interesting to see the outcome of these proceedings, in due course.

The Book also covers the 2002 Eddie Irvine false endorsement case, in which the former Formula 1 driver successfully sued Talksport in ‘Passing Off' for doctoring a photograph of him holding a mobile phone, which was electronically transformed into a radio bearing the logo of Talksport, with the suggestion that he listened to and endorsed this radio station, which was not, in fact, the case.

The Book also includes useful Chapters on the UK Press Complaints Commission and Celebrity Sponsorship, Merchandising and Endorsement Agreements, which are well known and well used in the sporting arena. There are also helpful practical Chapters on bringing legal proceedings for privacy, defamation and harassment claims, as well as applying for injunctive relief, which is always a controversial matter.

In connection with injunctive relief, the Book also discusses the relatively new phenomenon in the UK of the so-called ‘super injunction' in the very recent LNS case, which concerned a well-known footballer. Essentially, a ‘super injunction' prohibits the disclosure that an injunction has actually been issued in certain legal proceedings in order to ensure the anonymity of the persons involved in those proceedings. As the authors of the Book correctly point out, applications for ‘super injunctions' will need to be carefully reviewed by the courts "to ensure that there is no undue interference with the principle of open justice" as first enunciated in Rex v Sussex Justices by Viscount Hewart, a former Lord Chief Justice of England and Wales, that "Justice must not only been done, but should manifestly and undoubtedly be seen to be done!"

There are also Tables of Cases and Statutes and a comprehensive Subject Index.

This is a well-researched and well-written Book and I commend it to anyone involved in protecting and commercially exploiting the images/personality rights of all kinds of celebrities, including, of course, sports personalities.

Professor Ian Blackshaw
International Sports Lawyer

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