The next celebrity kiss-and-tell may not end with a privacy injunction. It could start a police investigation.
The forgotten consequence of the Online Safety Act is that it may have transformed the legal risk profile of the traditional kiss-and-tell. For decades, publishers worried about privacy claims and injunctions. Today, the greater question may be whether the sharing and handling of intimate image material connected with a story could give rise to criminal liability before publication is even considered.
The modern law of privacy was shaped by claims arising from media intrusion by mainstream broadcast and print media. During the tabloid heyday of the 1990s, those in the public eye had little chance of keeping their private lives private. At the time, the lengths to which the tabloid press would go to fill column inches was not known. It has since emerged through years of phone-hacking litigation that journalists had been illegally intercepting voicemails and making unlawful payments to police officers for information. Amongst other consequences, this forced the closure of The News of the World.
Individuals turned to the civil courts to enforce their privacy rights. As a result, modern privacy laws emerged in the early 2000s and developed rapidly as the courts sought to slow down intrusive reporting. A substantial body of case law emerged which allowed a greater protection of private and family life where publication served little more than to satisfy public curiosity for salacious gossip – the traditional ‘kiss and tell’ story. During this period, super-injunctions were commonplace and many stories were spiked.
However, the media landscape changed dramatically in the following 10 years. The rise of social media and the viral spread of information made privacy increasingly difficult to protect. Super-injunctions (including Ryan Giggs’ well-reported attempts to stop private information being published) were effectively thwarted by publication of the information on social media. The practical reality was that private information spread rapidly through online channels beyond the control of mainstream publishers and beyond the effective control of the courts. This, together with the push for open justice and court transparency meant that the use and impact of the super-injunction to prevent publication of ‘kiss and tells’ declined.
Anonymity orders emerged as the more common means of protecting privacy during litigation. However, the use of initials or three-letter ciphers can fuel intense speculation about the individual’s identity, sometimes undermining the very anonymity the order is intended to preserve.
It would be wrong to suggest that there is now no protection for the victims of ‘kiss and tells’ in the civil courts. Following the rise of social media, the courts have developed concepts around privacy, placing greater emphasis on personal autonomy and recognising that different forms of publication can constitute different forms of intrusion. In 2016, the Supreme Court upheld an injunction preventing publication of details of a celebrity’s extra-marital sexual
encounters despite the information having already appeared overseas and circulating widely online. The Court upheld that publication by a mainstream English newspaper would represent a further and qualitatively different intrusion into the claimant’s private life. It reaffirmed that the law can still protect individuals even where information has already been published.
Alongside these developments, Parliament’s focus has increasingly shifted from regulating publishers to regulating the online environment. This has an important but little discussed impact on the ‘kiss and tell’. The Online Safety Act 2023 introduced a number of criminal offences. Most importantly, it is now a criminal offence to share or threaten to share intimate images or film without consent. It may also be a criminal offence to receive these images and films, depending on precisely what they depict. Given that photographs or videos often form part of a ‘kiss and tell’, these provisions can create legal difficulties. A publisher will generally want to publish images to embellish the story. Even where it does not want to publish, it may still want to review the images in order to verify the story. As the law currently stands, there is no specific media exemption permitting the transmission or receipt, creating a tension between a responsible journalism and criminal law. A person sharing photos and videos is unlikely to know that they could face criminal sanction including prison, a fine and potentially inclusion on the sex offenders register.
Social media followed by the regulation of online activity has significantly altered the legal landscape for the traditional ‘kiss and tell’ story. The introduction of criminal offences under the Online Safety Act 2023 adds an important dimension. Publishers, journalists and sources must now consider not only the risk of civil liability but also the potential for criminal sanctions where intimate images are shared or threatened to be shared without consent. The modern ‘kiss and tell’ is no longer simply a question of whether privacy rights outweigh free- speech rights but whether gathering, verifying and publishing accompanying material gives rise to criminal liability. The legal and practical risks have never been greater.
