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Balancing Freedom of expression and Right to privacy: How Caroline Flack’s story can work to change

By Bunty Kerray


Caroline Flack, a 40-year old British television and radio presenter, took her own life in her London home on Saturday, 15 February 2020. Her death came following months of media intrusions into her private life, after she was charged with assaulting her partner, Lewis Burton.


The British media, in particular tabloids, is infamous for having a specific fascination with a woman’s 'fall from grace'. This fascination is fuelled by the systemic misogynistic attitudes of tabloid editors, writers, and readers. There are countless cases of women whose lives have been disrupted by a barrage of intrusive, sexist, and reputation-ruining headlines; Princess Diana, Amy Winehouse, and Meghan Markle are just a few obvious examples of women who have been targeted by the press. These published character assassinations are especially vehement examples of ‘cancel culture’, the boycott of celebrities after they have exhibited problematic behaviour or shared controversial opinions. But the abuse does not stop there. In addition to traditional media, social media has become one of the most dangerous spaces for those in the public eye to exist. Social media has become a faceless platform for trolls to voice their nastiest opinions; ones which they wouldn’t dream of saying to someone’s face. These two worlds meet in the comments sections under tabloid articles published online on either Facebook or Twitter, where the words of a professional ‘journalist’ fuel the toxic opinions of those sitting at home behind a screen. Their opinion is legitimised by the fact that they can see it reflected back at them in a newspaper article, and an echo chamber of hate is created.


Using Caroline Flack’s story as a case study, we can see just how catastrophic the consequences of a large-scale media intrusion, both traditional and social, can be. Looking at the number of articles published about Caroline Flack over the last couple of months is a useful starting point. The Sun published the most articles mentioning Caroline in the six months before her death, with a total of 99. This makes up approximately a quarter of the 387 stories that mention her published in print by all of the UK’s national newspapers in the same period. After Flack was charged with assaulting her partner in December 2019, she received twice as many negative headlines as positive. After her death, the story changed. The Sun tried to cover their tracks by removing an article about a Valentine’s card mocking Caroline and her arrest for the alleged assault against her boyfriend. The story was replaced with a legal warning, as the paper became aware of concerns about how the media handled coverage of her arrest. Furthermore, the same outlets that attacked her started to publish articles about the tragedy, pretending that they were not part of the problem.


Now everyone is playing the blame game. Some are putting the blame on Love Island, the ITV2 show that Caroline presented for several years. It has specifically been attacked for its lack of aftercare support, especially after two previous contestants took their own lives following their appearance on the show. Furthermore, No. 10 has called on social media companies to go further to remove unacceptable content from their platforms. Boris Johnson’s deputy official spokesman stated “the industry must continue their efforts to go further. We expect them to have robust processes in place removing content breaching their acceptable use policies” This obviously is skewed more towards social media companies than the press, and it can be argued that it is not right to put all the pressure on social media companies; they cannot be left to police themselves. The responsibility should not solely fall at the feet of social media companies, though they definitely do have their part to play in this; both the press and these companies are in dire need of legislative guidance and control.


Caroline’s death has of course caused numerous calls for change. Hollyoaks actor Stephanie Davis launched an online petition entitled “Exploiting people in the public eye” with an emotional video alongside it explaining her motivations. This petition had 811,217 signatures as of 1st March 2020. A similar petition entitled “Caroline’s Law” asks Parliament “to consider a law that would make it a criminal offence, not dissimilar to Corporate Manslaughter, for the British media to knowingly and relentlessly bully a person, whether they be in the public eye or not, up to the point that they take their own life”. The campaign wishes to address how certain fractions of the media “sensationalise the misfortune of individuals (mainly those already in the public eye, but not always so) to the catastrophic detriment of the individuals’ mental welfare”.


Another petition, published on Change.org, calls for the Government to launch an inquiry into the British tabloids following Caroline’s death. The petition states that “This campaign is calling on our Government to launch an inquiry into the British tabloids and their conduct following the maltreatment of those in the public eye; Caroline Flack, [Prince] Harry and Meghan Markle, to name a few. The headlines, harassment and trial by media has to end and they must be held accountable”. He goes on to mention the Leveson Inquiry in 2011, which scrutinised the practices and ethics of the British press following the News International phone hacking scandal. Despite this action, it is obvious that we are still seeing similar issues in the press. His last statement under the petition is extremely important: “There are people out there who find that any form of state involvement with the press risks censoring/stifling free speech. This is not our aim. Instead we would like the government and media organisations to have open conversations to formulate a set of guidelines which find a balance between freedom of the press and rights of the public.” This is arguably the answer to balancing the right to privacy and the freedom of expression which courts, both in the UK and in the European Court of Human Rights (ECtHR) in Strasbourg have difficulty balancing. There needs to be a change in legislation to further protect the right of privacy.


I have seen a number of counter arguments forwarded in opinion pieces by journalists heralding the right to freedom of expression, just as suspected by the creator of the petition above. The tension between freedom of expression and the right to privacy is arguably the main reason why these calls for change may not work.


The ECtHR has struggled to grapple with the competing interests of freedom of expression and the right to privacy over many years. There is no hierarchy of rights in the Convention, so when two rights come into conflict with one another, a balancing act must be conducted, and a wide margin of appreciation is given to contracting parties to protect each individual right. Where there is a ‘public interest’ in publishing private information, the courts tend to see this as a justification. In some cases, the courts have protected privacy over freedom of expression. In Von Hannover v Germany, Caroline, Princess of Hanover, the eldest daughter of Prince Rainier III of Monaco had for some time attempted to prevent pictures of her being published in the German press. The German Constitutional Court, however, ruled that there was no breach of privacy as the Princess was a “figure of contemporary society par excellence”, in order words a public figure, which only entitled her to a modest level of privacy protection. However, the ECtHR decided that the Princess could and should enjoy more protection than was given to her in the first instance. The Court ruled that there was no public interest in knowing how the Princess behaved in her private life, even though she appeared in places that were well-known to the public.


Furthermore, Campbell v MGN (2001) concerned several articles published in 2001 in the Daily Mirror, revealing that supermodel Naomi Campbell was attending Narcotics Anonymous (NA) meetings in an attempt to treat her drug addiction. The articles were accompanied by several photographs, which had been taken by a covert photographer. All of the judges essentially agreed that the publication of Naomi Campbell’s attendance of NA meetings was in the public interest, since she had previously denied taking drugs. However, the majority ruled that the publication of the additional information, including the photographs taken of Ms Campbell, was not justified and therefore breached her privacy rights. MGN then brought the case before Strasbourg, who rejected their claim that the House of Lords had violated their Article 10 right to freedom of expression. A dissenting judgment, written by David Thor Bjorgvinsson of the ECtHR, discussed the issue of being a person in the public eye and having the right to privacy. He stated that Ms Campbell has a “direct interest in projecting a certain image of herself in the mind of the general public in order to exploit that image to promote her professional ventures and interests.” This interest, in Bjorgvinsson’s opinion, means that Campbell cannot profit from the media and then complain when the story does not go her way. However, this is a very problematic argument in my conception of human rights protection. This is synonymous to the theory of forfeiture of rights; for example, if you commit a crime and are given a prison sentence, you forfeit your rights by your action; in the same way, by being a public figure, you are forfeited your right to privacy as you profit off publicity in other cases. This notion is unacceptable. In a human rights order, you cannot accept the idea that forfeiture of rights occurs in any circumstance.


These are developments in protection over convention rights, but they have arguably not been taken far enough, and freedom of expression is still upheld very stringently in cases before the ECtHR. It is clear that the law in this area must be developed further in order keep up with the evolution of how society now consumes news; on a 24-hour streaming service attached to their hand. It is increasingly important to protect the privacy of individuals in this social media era, as audiences are incomprehensibly wide. Although the importance of freedom of expression is still great, the infringement of the right to privacy is so much greater than it used to be in the days of predominantly printed media. In the wake of the death of Caroline Flack, the law must reform how it views the importance of freedom of expression, and instead focus on the humanity of the right to privacy. The answer lies in open conversation and admittance of fault from all sides: parliament, traditional media, social media, individuals, and wider ‘cancel culture’, working together to change societal attitudes and more stringent media ethics.