Miller is claiming that the publication of the pictures
violated her right to privacy and breached her confidence. Reports
suggest she is demanding £100,000 in damages. Her lawyers in the
matter, Carter-Ruck, did not respond to a request for comment.
Miller was pictured on a yacht off Italy's Amalfi coast with
Getty, who is married with four children. She claims that the
publication invaded her privacy, but privacy law expert William
Malcolm of Pinsent Masons, the law firm behind OUT-LAW.COM, said
that the question of invasion of privacy was highly dependent on
the specific circumstances of the taking of a picture.
"Sienna Miller's case will come down to whether or not the court
considers that the photographs were taken in a place where she had
a reasonable expecation of privacy," he said.
"Taking photographs with a telephoto lens on a private yacht is
akin to transgressing into a private area such as a home or garden,
where confidentiality is expected," he said.
Malcolm said, though, that such an expectation would not
necessarily be reasonable on the same yacht if it was moored close
to shore next to many other vessels.
Other locations would be less likely to be treated as private,
he said. "One can liken a public beach to a public street," he
said. "A court would be reluctant to offer celebrities protection
unless there were particular circumstances."
Miller accepted the offer of a settlement payout earlier this
week from the Daily Star. It had published a photograph which it
admitted showed her being harassed by paparazzi photographers. She
accepted £15,000 in damages plus her costs, plus the publication of
an apology in the newspaper.
That apology read: "We accept, as we said in the article, that
Ms Miller was extremely harassed and distressed by persistent
pursuit and intimidating tactics adopted by numerous paparazzi in
seeking to obtain photographs of her, including the very photograph
that we published. We apologise to Sienna for publishing this
photograph."
Miller is the latest celebrity to seek protection for her
privacy in the courts. English law has traditionally had no law of
privacy, though a number of rulings based on the law of
confidentiality and on article eight of the European Convention on
Human Rights have strengthened privacy protection. That article of
the Convention protects a citizen's right to a private and family
life.
Author JK Rowling took a case against a newspaper and a
photography agency over a picture of her family on the street. The
Court of Appeal ruled this year that people enjoy the protection of
the Convention wherever they have a reasonable expectation of
privacy, and that that could happen in ordinary situations, such as
on the street.
Another law that celebrities might use to protect their privacy
is the law of confidence. The House of Lords ruled in 2007 that a
photographer who took secret photographs of the wedding of film
stars Catherine Zeta Jones and Michael Douglas had breached a duty
of confidence that extended to all those attending the wedding. The
photographer sold the pictures to Hello! magazine, while OK!
magazine had paid £1 million for the right to publish pictures of
the event.
"The point of which one should never lose sight is that OK! had
paid £1m for the benefit of the obligation of confidence imposed
upon all those present at the wedding in respect of any photographs
of the wedding. That was quite clear," said Lord Hoffman in that
case's ruling.
