The foundation of the law is “Equity” (Fairness). Everyone is equal before the law.
The role of law is to maintain the “Order”.
Is it possible that there is a conflict between the foundation of the law and the role of the law? Definitely.
What do we do when there is a conflict? This article uses numerous examples to explain how the judges come to their decisions. These cases are basically divided into 2 groups. Group 1 is talking about contract law cases because money is the easiest thing to quantify; Group 2 is full of celebrities’ gossip, which may not be necessarily pleasing to the eye.
When talking about contract law, we have to first understand the concept of consideration. In a nutshell, assuming my family hired a contractor for the kitchen renovation at a fixed total charge which includes all labour and building materials, but the price of building materials drastically rose during the construction, so the contractor needs me to pay more, which I disagree with. When this matter goes to court, if the judge rules:
- I need to pay for the increased cost on top of the contract price, it is the principle of “equity”
- I only need to pay whatever the fixed contract says, it is the principle of “order”
There are several interesting contract authorities between seafarers and their captains.
More than 200 years ago, a captain took 16 sailors out to sea, and suddenly there were two missing on the way. The captain promised the remaining 14 people. If you do the work of the 16 people and let us all get home safely, you 14 guys will get paid for 16 people’s amount. This sounded reasonable so the crewmen agreed. But after they got home, the captain did not fulfil his promise. He paid 14 people’s amount instead of 16’s. The crewmen took the captain to court with confidence that the judge would make a fair and just decision based on the “equity”. However the court used an excuse to find in favour of the captain (see the blog “consideration” in Law of Contract for details). The real reason, which I believe, is that the judge dared not set the precedent, given the conditions and the circumstances of the sailing 200 years ago. At the time, it was not uncommon for crewmen to kill each other for profit. If the court found for the crewmen and the “floodgate” is opened, such vicious “incidents” may actually occur in the future that, say 10 crew members have made a secret agreement, and they found another 5 random guys to board a ship and to go sailing together, later the 10 people killed the 5 and claimed their pays. Considering the “case law” is part of the law, the judge can only bite the bullet and hold for the captain. Quick summary: This case is uncompromisingly biased towards the “Order”. Stilk v Myrick [1809]
40 years later, another captain took 37 crew members to sea, and 17 were missing on the way. The captain promised to the rest crewmen that, if you guys can work it out and get us out of this critical situation, after we get home I’ll pay you 37 people’s amount. When they got home, the captain did not fulfil his promise so the matter went to court. This time, due to the number of crewmen missing and the proportionality, the court made the judgment that favoured “equity” which means the 20 people were entitled to reasonable remuneration. Hartley v Ponsonby [1857]
There is another earlier authority that the ship was in a critical situation, at the time of crisis, the captain promised a crew member in a hurry: If you can handle it well and send all of us home safely, I will pay you extra. Later when they got home the captain refused to pay extra, of course, so they went to court. This time the judge did not even hesitate to rule in favour of the captain. The reason is simple: if the crewman wins, the floodgate will be opened so there could be many extortion cases in the future! Harris v. Watson [1791]
Let’s now turn to the disputes between celebrities and the media to show the battle between equity and order, which will get a touch to the “human rights”. We should know Human rights include many different categories of rights, the freedom of speech is part of it, and the right to privacy is also a part of it. Thus, when there is a conflict between
- the right to freedom of expression of the media, and
- the right to their privacy of lives of the celebrities
Simply put, assuming:
- the celebrities want to keep the “things” with themselves, and
- the media has captured the “thing” and the media wants to publish it
At this time, if the court finds for the media to disclose the dark side of celebrities, it is going to the principle of equity. And if the court finds for the celebrity to protect their privacy, it is going to the principle of order.
Okay no more tongue twister, It’s time for gossip!
For the wedding of Michael Douglas & Catherine Zeta-Jones, the celebrity couple granted OK! Magazine exclusive rights to publish their wedding photos. Hello! Magazine sent a spy into the wedding with strong security protection and obtained some photos. Douglases wanted to obtain an interim injunction to prevent the publication of these photos by Hello! and they wanted to continue the injunction till the main trial. The court found for the media, Brooke LJ ruled that the couple could not expect privacy at a wedding with 250 guests. So this one goes to the “equity”. Douglas v Hello! Ltd [2001]
Max Mosley, president of FIA, had sadomasochistic sex with Nazi theme with 5 prostitutes and they recorded a video. But later one hooker sold her story and the video. Mosley applied to the court for an immediate injunction to ban the media from publishing the details. The court found that Mosley’s rights under Article 8 of ECHR were clearly engaged, the activity was consensual sexual activity between adults which had taken place in private and had been recorded privately, as the result, it was found for Mosley. Also, the court finally said: mortal disapproval doesn’t necessarily mean illegality. This one goes to the “order”. Mosley v News Groups Newspapers [2008]
Naomi Campbell is a British supermodel and actress. Mirror Group Newspapers published various information including a claim that Campbell was a drug addict, despite her previous public claims that she did not take drugs, the fact that she was receiving treatment for this addiction, the details of the treatment she was receiving, and the covert photographs of Campbell leaving a Narcotics Anonymous meeting. Campbell sued the media. The 5 judges, with a difficult vote of 3:2, made a verdict that Campbell’s drug use is a matter of fact so there is nothing to do about that, but visiting the clinic is some kind of medical record so it should be protected. In fact the decision of this case goes to the “equity”.
David Furnish, a Torontonian, who married Elton John in 2014, identified in court document as PJS, to prohibit publication of the details of a sexual encounter between him and two other people. The court found for Furnish. The Supreme Court were of the view that should the injunction be refused, there will be a media storm in England, so the injunction was necessary in order to protect both PJS but also his partner and his children, especially considering the three children. This time it goes to the “order”. PJS v News Group Newspapers Ltd [2016]
Finally we have 2 German cases. A famous German TV actor who was well-known for his role as Police Superintendent, was arrested at the Munich beer festival for possession of cocaine. A newspaper publisher subsequently published a front-page story detailing the actor’s arrest. The actor issued domestic proceedings against the media. The court eventually found for the media. The ECtHR overturned the decisions of the German courts, finding that the granting of the injunctions contravened article 10 of the Convention, as they constituted an unnecessary interference with the publisher’s right to freedom of expression. This time it goes to the “equity”. Axel Springer AG v Germany [2012]
The claimant (in Germany it’s called applicant) is Monaco’s Princess Caroline. The German magazine published photos of the princess on a skiing holiday without her consent. The Court unanimously found for the princess and ruled that there was a breach of Article 8 of the ECHR. It accepted that scenes from daily life, involving activities such as engaging in sport, outwalking, leaving a restaurant or on holiday were of a purely private nature. This one goes to the “order”. Von Hannover v Germany [2012]
At the end of the day, this blog can be summarized into 2 sentences. First, when judges consider a case, very often they think about the consequence of their decisions instead of the principles of equity or order. Secondly, if you are a princess of a country, you can pretty much pick one as you like.
