Stories about Geri Halliwell's bosom may leave the press open to legal action, says Duncan Lamont

Monday September 15, 2003
The Guardian

Geri Halliwell may, or may not, have felt distressed at the publication in most of our newspapers recently of photographs of her showing off her impressive new bosom under a tight jumper while walking her dog. The ex-Spice Girl and her PR advisers and media consultants may, or may not, have felt that she was damaged by hints, insinuations and outright allegations that her new look was not real.

The Sun's columnist Lorraine Kelly ("fake boobs or not, Geri looks mounds better" wondered about possible scars but conceded that the singer might have stuffed a couple of watermelons down her front for a laugh. The same day's edition of the Sun, on the health page, noted that Halliwell had a star and jaguar tattoo removed from her back. Real interest in her body, but does it amount to intrusion?

The Sunday Times was also fascinated by the "reconfigured" Halliwell: in an article titled "Lollipop Ladies" the columnist India Knight called for the return of the very respectable Ginger Spice as Geri crazily had "suddenly got amazing instantly larger breasts".

All a bit of a hoot at the end of the summer silly season? Entertaining risk-free journalism or can celebrities bite back?

There may appear to be nothing private, or confidential, about walking down a street in a tight polo neck jumper, but even the press complaints commission's code of conduct acknowledges that everyone (including celebrities) is entitled to respect for their health and that hospitals, and what goes on in them, are meant to be no-go areas. The public interest exception is only there to protect the public from crime or being misled, not to pry into something genuinely secret like a patient's relationship with doctors. The need to protect privacy is also contained in the BBC guidelines for producers and the ITC code, so broadcasters also have to respect the private life of public figures.

The law of libel is there to protect celebrities too. In the mid-1980s the actress Charlotte Cornwell was awarded damages after it was suggested that she was ugly and "her bum was too big". Gratuitously unpleasant slurs are not always covered by the defence of fair comment although nearly 20 years since the "big bum" case, the size of a celebrity's chest would now (although not then) arguably pass the legal test of being "a matter of public interest".

A decade ago the pop star Michael Jackson was embroiled in libel litigation against the Daily Mirror which had suggested that his face had been disfigured by plastic surgery. Jackson maintains that he has had far fewer operations than the tabloids seem to think. The court of appeal ordered that he submit to a medical examination and disclose his medical records. Eventually the case was settled and the Mirror acknowledged that the star was not disfigured or scarred. So you can sue over your appearance.

If Halliwell has told her friends and others that she has not had a breast enlargement operation, and the media persist in saying she has, then the media are accusing her of being a liar, a potentially expensive business as Halliwell is a UN goodwill ambassador and happy to help charities.

In cases involving Naomi Campbell, the supermodel, and Catherine Zeta-Jones, the Hollywood actress who sued Hello!, the courts have emphasised that there is not yet a law of privacy, although the law of confidentiality is being extended to protect the commercial aspects of the celebrity's life. The media lawyer Chris Hutchings explains: "The Douglas v Hello! case was widely billed as being the privacy case of the decade. Yet the judge based his finding upon the law of commercial confidence - and data protection - holding that the English court does not yet recognise a distinctive law of privacy".

The actress Amanda Holden and the Radio 1 DJ Sara Cox recovered damages after topless photographs (taken while they were on holiday) appeared in the tabloids, but these were settlements, not trials, and a real concern for newspaper editors now is not privacy but the data protection legislation and here, unfortu nately, the law seems to have gone a little mad.

Even Campbell's judge admitted the near incomprehensibility of the data protection act, and any damages that have been awarded have been on the modest-to-derisory scale where a claim for confidentiality has also been made.

But although one can claim that it is reasonable to expect to be out of the media's gaze when on a private beach doing nothing of interest to the public other than topping up a tan, busy roads where Geri and Naomi were snapped might be considered to fall into a different category. But not in data protection land where "processing" pictures can be enough for a little claim with rather larger legal costs.

The law is still a little uncertain but under the act it can be argued that such photographs contain personal data within the meaning of Section 1 of the Data Protection Act 1998 or sensitive personal data within the meaning of Section 2 of the Act. There is a journalistic use exemption but pictures have to be processed fairly and lawfully and the inappropriate use of long lens photography, or intrusion into medical history, can take a publication out of the comfort zone of compliance with the relevant industry codes.

So our national pastime of analysing the possibility of celebrity trips to plastic surgeons as well as a review of the before (and sometimes after) as displayed on a street or poolside may be coming to a premature end - courtesy of an act meant to protect the public by ensuring accuracy in databases and helping people get credit cards. Many wonder if boobs and beaches was what parliament really had in mind when creating a data protection commissioner.

· Duncan Lamont is a partner in the media group at city solicitors Charles Russell


..::Its not enough to win::..