Celebrity and the law

ON Tuesday night to the launch at Sydney Uni law school of Celebrity and the Law, published by Federation Press.

Barbara MacDonald, who pops up from time to time as a torts expert in the SMH, seems to have assumed the role of lead joint author, and gave the speech on their behalf.

The impetus for the book, or so she claimed, was the heightened interest that a legal point attracted in lectures if it could be illustrated by a case involving a celebrity. She illustrated this by the well-known opening paragraph of the judgment of Sir Robert Megarry in Re Flynn:

Errol Flynn was a film actor whose performances gave pleasure to many millions. On 20th June 1909 he was born in Hobart, Tasmania; and on 14th October 1959 he died in Vancouver, Canada. When he was seventeen years old he was expelled from school in Sydney and in the next thirty three years he lived a life which was full, lusty, restless and colourful. In his career, in his three marriages, in his friendships, in his quarrels, and in bed with the many, many women he took there, he lived with zest and irregularity. The lives of film stars are not cast in the ordinary mould; and in some respects Errol Flynn’s was more stellar than most. When he died, he posed the only question that I have to decide: Where was he domiciled at the date of his death?

Ah, teachers! There is something about the way they trot out their oft-related pedagogical gems – not, I suppose, really much different from barristers with their old war-stories – though to be fair to BM, this is a tidbit from Private International Law rather than from her usual teaching staple of torts and equity.

I didn’t actually buy the book at the special launch price of $70 [otherwise $85]. Having taken the opportunity of a trip to campus in business hours renew at a cost of $80 my Sydney University library card, I thought I might as well wait until it is in the library. That means that anything I can say here is based on no more than conversation with and knowledge of the authors, a brief browse and a skim of Murray Gleeson’s poorly-typeset foreword.

But back to the book, on this shaky basis, and the launch.

Ironically, though illustrating the fascination of celebrity, BM’s example of Errol Flynn was probably quite tangential to what I take to be the chief themes of the book, at least as a matter of the book’s formal discourse rather than its sales hook.

That’s because Flynn was by then a dead celebrity, which is to say, an ex-celebrity, or no celebrity at all.

The law of celebrity is either concerned about celebrities protecting their celebrity, often at least purportedly (because that sometimes gets them a foot in the courtroom door) for the purpose of economically exploiting it, or about whether a celebrity can stop the publication of things about them which, as a practical matter (and, until recently in NSW at least, with the abolition of the public interest qualification to the defence of truth, as a legal matter) no-one would, generally speaking, be seeking to publish if they weren’t a celebrity. The two categories are not mutually exclusive.

This means celebrities are both the pointy end and the weak spot in the assertion rights to privacy. It’s not that such a right is generally admitted by the Australian common law for anyone, but it’s in the case of celebrities that it most often comes to be fought. Of course, that is not always the case, or you might perhaps say that there are cases, such as Wendy Hatfield, of reluctant celebrities.

Apart from Barbara Macdonald, who handled the tort-law side of the book, the other authors are Patricia Loughlan, who dealt with the equitable bits, and Robert van Krieken, who is a sociologist (also sometimes professing to be a legal sociologist), and who provided a sociological-historical account.

From my quick flick through the book and just as a hunch, I’m guessing that most of that sociological account deals with the development of a cult of celebrity in association with the development of the mass media. After all, it’s not as if societies have not always had instances of at least local fame (I myself was a celebrity, or so I thought, in West Pymble when I won a national story competition at the age of 10). What’s distinctive about the modern mass media is the development of a market for information or entertainment to do with celebrities whose fame is created and fanned and indeed the stock-in-trade of those media. This surely reaches its apotheosis with the running series of decidedly low-level spottings of celebrities regularly recounted in the throwaway sub-tabloid, MX Magazine, which recently informed me that Alex Perry was spotted checking DVDs at a shop in Earlwood. I hardly know who Alex Perry is, but whoever he is that information has taken the shine off him so far as I am concerned.

Perhaps others feel differently: maybe what they really like is news about famous people doing ordinary things. Personally I’m more interested in instances of ordinary or at least obscure people doing extraordinary things. There’s plenty of that in the decided cases to keep me preoccupied.

The room was discreetly abuzz with one piece of celebrity news. Barbara Macdonald shied from directly retailing it and I shall shy away too, other than to mention that it involved a sighting of Russell Brand in Sydney. It involved paparazzi. The person telling me this said: “Haven’t they heard of the Naomi Campbell case?”

Well, that was in England, where the House of Lords held that the European Convention on Human Rights had an influence on the development of the common law. We haven’t got that here in Australia, which makes things more interesting from a legal academical point of view.

Richard Ackland launched the book. He opened by remarking upon the absence of any actual celebrities from a launch of a book on the subject. This was rather cheeky of him, though he could probably get away with it given that, however any of his auditors might fancy themselves to be celebrities in their own quiet way, it is true that he was the most celebrous one present. And he can certainly walk the streets of Sydney unstalked.

As Ackland spoke, Robert van Krieken lurked at his side with a bottle of Veuve Clicquot. I was rather hoping to see it cracked over a copy of the book, but instead it was presented to Mr Ackland. I don’t know if that was the full extent of his appearance fee, if any.

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