'I wonder if Billy the Kid was an adult when they put up the first Wanted
poster?" muses Paul Tweed, a Belfast lawyer who specialises in privacy and
defamation work. His question was prompted by a judicial review of the
PSNI's decision to publish images of a teenager filmed during heavy rioting
in Ardoyne on July 12.
In fact Henry McCarty, the real name of the Wild West outlaw dubbed Billy
the Kid, was all of 21 when he was shot dead by Sheriff Pat Garrett in 1881.
Most of his criminal career, including up to 21 murders, took place during
his teenage years. So yes, in modern Europe, publishing his image in
connection with a crime could have been considered a breach of his rights as
a child. He was just a kid, as the posters said.
The child whose mother is taking a case in Belfast was 14 when he was filmed
by police during a night of rioting which cost the taxpayer £1.1m. His case
is legally distinct from that of Ruth Hickey and her baby son Jesse, whose
pictures were taken by the Sunday World as they emerged from the Registry of
Births, but it raises some of the same moral and practical issues.
Is there a right to privacy in a public street, be it Ardoyne or Dublin?
What protection should be afforded to minors? Does it make any difference
whether they are, like Jesse, in the public eye because their parents are
famous, or, like the Ardoyne teen, because they have been spotted at a crime
scene? Taking things one step further: in the age of the internet, is Mark
Zuckerberg, the Facebook founder, right when he says
privacy can no longer be considered a social norm? With everybody looking
for their 15 minutes of fame, have those who put themselves in the public
eye the right to switch off the publicity when they see fit?
Courting the press was Hickey's downfall. The father of her child was David Agnew, the
estranged husband of Adele King, better known as Twink. The court found that
Hickey had sought publicity for the relationship, and could not cry "foul"
when she was photographed in a street and a newspaper commented on her
situation. The particular story may have been the "lowest form of
journalism" but, as the judge observed, it sold newspapers.
Tweed, who makes a living from teasing out this kind of question, hasn't
thrown in his lot with Zuckerberg yet. Best known as a libel specialist who
sues on behalf of Holywood stars as well as local celebrities in the Irish
and British courts, he now says privacy is the growth area for reputation
management.
"It is now about 70% of my workload," he says.
"I always quote Michael McDowell [the former Irish justice minister] to my
clients. You have a circle of privacy around you and it gets smaller if you
are a celebrity. Every time you step outside it and say something about your
private life, you put it at risk."
But if you have enough cash and ingenuity, there are ways round such
commonsense advice. Tweed has acted for the notoriously touchy Van Morrison
in his quest for privacy.
A current case in which he is not involved is being taken by Michelle
Morrison, the singer's wife, against the local council for allegedly failing
to protect her privacy in not restricting the height of buildings on her
neighbour's land.
The best way to protect privacy is preventing anything being published in
the first place, via a super injunction. These are the most draconian
instruments available for the suppression of publicity and "are the way to
go", according to Tweed, who has obtained two from the Belfast courts. He is
quick to remind me that identifying his clients or specifying what they want
hushed up would be in breach of the super injunctions, and would leave me
open to contempt proceedings.
He is taking another case on behalf of actor Nicolas Cage, concerning
"something he did in a place which we maintain was private". Intriguing, but
speculation would invite a writ. A third case, which would command more
public sympathy, is on behalf of three children under ten whose parents died
in tragic circumstances earlier this month and whose pictures were offered
for sale on a website.
The whole privacy bonanza goes back to a case won by Princess Caroline of
Monaco against the German government in the European Court of Human Rights.
It ruled that photos taken of her at Monaco Beach Club were private, even
though she was a public figure in a public place.
This right was extended by Max Mosley, the Formula One racing chief and son
of the fascist leader Oswald, who won damages against the News of the World
when it published a video of a sado-masochistic sex session recorded by a
prostitute who was involved. The court held that his privacy had been
infringed. It cost the News of the World £1m to defend and settle the
action, creating a significant chill factor amongst newspapers.
Restricting the media is bad enough, but the extension of privacy taboos to
police work is worse. At the forthcoming judicial review in Belfast, it is
being argued that the PSNI infringed the rights of a 14-year-old boy by
publishing a picture they took of him during the July riots, and appealing
for him to come forward. In a youth court, where juveniles are tried, he
would have a right to anonymity and it is argued that this is jeopardised by
the publication of his picture.
A PSNI spokesman counters: "When we publish pictures of a juvenile to whom
we want to speak, it does not always mean that he is to be arrested or
charged."
Before pictures are issued efforts are made to identify and contact the
person, and it is not always clear how old they are. Following the Ardoyne
riots, 23 images were released, of which four featured juveniles, all of
whom have now appeared before youth courts. If they were my kids, I would
want to know who they were mixing with, and how they ended up in the middle
of a riot. I would be relieved that instead of shooting or baton charging
them, as happened in the past, the police merely took their pictures. I
would be relieved at being alerted to the danger they had faced.
A defeat for the police in this case would have implications far more
serious than the celebrity privacy circus. The riots were orchestrated by
dissident republicans, some of whom travelled from as far away as Ballymena
and Derry. One man accused of attempting to kill a police officer by
dropping a concrete block from a rooftop onto her head was from Spain.
The Belfast Telegraph noted at the time that many observers felt that
"officers had absorbed too much punishment and should have been more
pro-active in dealing with the rioters". Yet the dangers to the peace
process and to children were obvious: professional troublemakers hid behind
a screen of youths, human sandbags deployed to absorb whatever punishment
the PSNI meted out.
Taking photographs and publishing them later was, by any standard, a
measured policing response . If principles established by wealthy
celebrities and aristocrats to push the boundaries of the law can be
extended into the criminal justice system we will all be the losers,
including young rioters.
The price of protecting their privacy could be that they will face plastic
bullets and tasers rather than cameras next time they charge police lines.
After all, look what happened to Billy the Kid.
