Should these mat­ters be private?

• The state of Steve Jobs’ health. Jobs heads a busi­ness val­ued at US$140bn, its stock trades pub­licly on the NASDAQ.
• The pos­sible extra-marital liais­ons of John Edwards. Edwards is a former Sen­ator, V-P can­did­ate, and ran for the 2008 Demo­cratic Pres­id­en­tial nom­in­a­tion. He is not a cur­rent office holder. His wife is suf­fer­ing from breast cancer.
• The extra-marital sexual pro­cliv­it­ies of Max Mos­ley. Mos­ley is Pres­id­ent of the Fédéra­tion Inter­na­tionale de l’Automobile which con­trols For­mula 1, a sport fran­chise that makes about US$4bn a year internationally.

Under emer­gent European law, increas­ingly, the answer would be yes to all of them on the grounds of pri­vacy under sec­tion 8 of the European Con­ven­tion on Human Rights.

At the same time, of course, mar­keters and ISPs are col­lect­ing ever more inform­a­tion on all our activ­it­ies. Mobile phones are vir­tual track­ing devices and their pos­ses­sion almost always now gives access to some kind of elec­tronic record­ing device.

More of us than ever are choos­ing to share per­sonal inform­a­tion with strangers online. Our homes can be pho­to­graphed from space, our emails tracked.

Given the com­mer­cial and gov­ern­mental inroads into pri­vacy, what are the argu­ments for extend­ing the concept in respect of the media? Does it simply mean provid­ing a legal rem­edy for ‘excess’ or ‘unwar­ran­ted’ publicity?

In case you think this is purely aca­demic, remem­ber the decision of the European Court of Human Rights in the case of Car­oline von Han­nover who had been pho­to­graphed in pub­lic (the bril­liantly titled Von Han­nover v. Ger­many):

[W]hile the gen­eral pub­lic might have a right to inform­a­tion, includ­ing, in spe­cial cir­cum­stances, on the private life of pub­lic fig­ures, they did not have such a right in this instance.

The Court con­sidered that the gen­eral pub­lic did not have a legit­im­ate interest in know­ing Car­oline von Hannover’s where­abouts or how she behaved gen­er­ally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public.

Even if such a pub­lic interest exis­ted, just as there was a com­mer­cial interest for the magazines to pub­lish the pho­to­graphs and art­icles, those interests had, in the Court’s view, to yield to the applicant’s right to the effect­ive pro­tec­tion of her private life.