Sex, Privacy and Public Interest

This weekend has seen yet more revelations of affairs in the tabloid newspapers, the most prominent being the coverage of the break up of the marriage of Lib-Dem cabinet minister, Chris Huhne.   The story was broken by The People which included detailed and intrusive material and photographs.  After the event, a number of allegations of “hypocrisy” have been made to justify the intrusion.  Richard Littlejohn has a characteristically sensitive and balanced piece in the “Daily Mail”.  Charlie Beckett has posted an interesting piece on this issue.

The UK has a powerful tabloid print media which makes money out of publishing intrusive stories about affairs and sexual relationships, sometimes in the form of “kiss and tell” stories. This was one of the reasons why the tabloid media made strenuous representations at the committee stage of the Human Rights Bill and has consistently opposed the development of the law of privacy. The Editor of the Daily Mail stated in his evidence to the Culture Media and Sport Select Committee that his preference is that there should be no privacy law and that in any event an important role of the press should be to expose private immorality, and hence the quest for naming and shaming of adulterers and those engaged in unusual sexual activities.

The law has however developed in a different direction.  Although each case depends on the particular facts and the comparative analysis of the speech rights and the privacy rights, it is clear that sexual relationships and affairs engage Article 8 ( i.e are private ) and that the mere fact of an extramarital affair does not automatically give rise to a public interest in its disclosure.  As Mr Justice Eady explained in his speech in December last year:

“Where the subject-matter is inherently private, such as sexual behaviour, it is not for judges to refuse a remedy on grounds of distaste or moral disapproval, or to accord protection on a graduated basis, according to how conventional or unconventional the sexual activity may be. This is quite a recent development. There is no logic to the stance taken a few years ago (in A v B Plc [2003] QB 195) that marital relations are entitled to greater privacy protection than a footballer’s one night stand.

Another argument that succeeded in that case was that the two young women concerned should be allowed to exercise their Article 10 rights so as to tell their story (albeit “salacious”). The case of A v B Plc has subsequently been described in the Court of Appeal as being in certain respects incompatible with the Princess Caroline case. It will not now necessarily avail a defendant to say “I am only recounting my own life story and so I can mention the claimant because he or she is part of it”. It was an argument that was tried and failed in McKennitt v Ash. In those circumstances, it is still necessary to carry out the balancing exercise between competing interests. One person’s life story cannot be uninhibitedly told if it encroaches, to an unacceptable degree, on another person’s reasonable expectation of privacy. This clearly has implications for kiss and tell stories.”

John Terry decision

The decision of Mr Justice Tugendhat in the case of Terry v Persons Unknown ([2010] EWHC 119 (QB))has been interpreted by some sections of the media as a significant “reverse” step for privacy law.  A number of media representatives have suggested that as a result of the decision “sex is back”.  Certainly following the decision, there have been a number of  remarkably intrusive stories in the tabloid media, including the coverage of the Terry affair.

It is important to place the Terry decision in context. This was an application for an injunction against persons unknown restraining dissemination and publication of the detail and fact of an alleged extra marital affair.  As everyone now knows, the judge thought that the evidence was placed before him weak double hearsay from football agents and critically the Judge decided that there was no notification to News of the World and that there should have been such notification in order to comply with Section 12 of the Human Rights Act. He made clear that he had heard no argument on many of the matters raised in his judgment. It is therefore surprising that he did not adjourn the application  to give the Newspaper notice so then he could have decided the issues after hearing both sides.

Importantly he considered that whilst there was sufficient evidence of threat of publication of fact of relationship, he did not think Terry would succeed in his claim in restraining the fact of the relationship. He did however indicate that that if there had been sufficient evidence of a threat of publication of intrusive details then that could be restrained by injunction. However he held that there was no evidence of such threat and therefore did not grant an injunction to cover the detail of the relationship.  The judge may therefore have been surprised to see the subsequent coverage of the detail of the Terry affair.  The judge also considered that on the evidenced before him the action was really about reputation rather than privacy and that the rule in Bonnard v Perryman applied so no injunction would be granted.

As most legal commentators have noted the decision indicates that extreme care should be exercised in preparing evidence and giving notification to the media. How much further the decision can be used is unclear.

There are also a few oddities in the decision;

• The Judge suggested that damages are normally sufficient for invasion of privacy contrary to many recent cases.  We suggest that it is clear that in almost all privacy cases damages are inadequate.
• The Judge suggested that Court of Appeal in McKennitt v Ash ([2006] EWCA Civ 1714) was not told of all relevant authorities and therefore could be distinguished. This is not correct.  In fact, the UK media sought to intervene in the appeal and filed detailed submissions about the issues in appeal and the parties in the appeal considered these carefully and addressed the Court of Appeal on these in detail.
• Where there was a clear threat of  publication of the fact of the affair, it almost always follows that the tabloid media will go on to publish details of the affair. It is difficult to recall an instance of when the tabloid media was content to publish the mere fact of an adulterous relationship.

As the solicitors Foot Anstey ( who act for local newspapers)  have commented, the media should not get carried away with the decision for two reasons :

“Terry’s case was primarily a refusal to grant an injunction on the basis that the application was procedurally and evidentially flawed. No prior notice had been given to any interested media organisations and the judge felt the application was more an attempt to protect Terry’s reputation and the financial interests of his commercial sponsors than to protect privacy.

Second, the judge made it clear that if he had been presented with evidence of a threat to publish “any intrusive details” about Terry’s alleged affair, he might well have granted a privacy injunction. And as things stand, Terry remains technically free to sue for damages for infringement of privacy over the salacious coverage that has ensued.

Despite his comments about freedom to criticise immoral conduct, there is nothing in Tugendhat J’s ruling to suggest he would not uphold a subsequent privacy claim by Terry if the media have overstepped the mark, particularly with intrusive photographs.”

The Court of Appeal decision in ASG V GSA

An example of a more consistent approach of the courts has recently been shown in the decision of the Court of Appeal of August 2009 in the case of ASG v GSA ([2009] EWCA Civ 1574).  It appears that it has only recently been transcribed.  The facts are markedly similar to those in the Terry case.  A well known person, married with children, had an adulterous relationship with a girl that he met at a night club. He said that she was attempting to blackmail him, demanding money under threat that she will otherwise publish in the press and/or tell his wife.

Blair J refused a without notice injunction on two bases: first, that the claim should not have come to the court without giving notice to the defendant girl; second, he expressed the view, applying section 12(3) of the Human Rights Act, that the claimant was unlikely to succeed at trial and therefore the injunction should not be granted.

Dealing with the point about the application being made without notice, the Court of the Appeal overturned the decision of the judge since there was sufficient evidence to show that if notice had been given the defendant would have undermined the injunction application by going to the media.

The Court of Appeal also overturned the other part of the judge’s decision allowing the injunction to be imposed until the on notice return date. Lord Justice Waller held (with Ward and Stanley Burton LJJ agreeing )

“It seems to me that the claimant is likely to establish that his Article 8 rights are engaged. The sexual relationship with the girl was private as between them. The cases indicate that the fact that it was adulterous will not affect the conclusion that Article 8 is engaged. In CC v AB [2007] EMLR 11, a case where the cuckolded husband was seeking to publish details of a relationship between his wife and the other man, it was argued that an adulterer simply had no rights under Article 8 and Eady J said this at paragraphs 24 and 25:

“24. The other proposition which Mr Warby sought to derive from Stephens v Avery, since one of the protagonists happened to have been a married woman, is that it is hardly likely that a modern court would regard an adulterer as beyond the pale when it comes to the protection of intimate personal relationships. Indeed, if the commission of a crime does riot deprive a citizen of the opportunity to enforce his or her Article 8 rights (see e.g. Polanski v Condi Nast Publications Ltd [2005] 1 WLR 637), it is difficult to see how adultery could do so.

25. Judges need to be wary about giving the impression that they are ventilating, while affording or refusing legal redress, some personal moral or social views, and especially at a time when society is far less homogeneous than in the past. At one time, when there was, or was perceived to be, a commonly accepted standard in such matters as sexual morality, it may have been acceptable for the courts to give effect to that standard in exercising discretion or in interpreting legal rights and obligations. Now, however, there is a strong argument for not holding forth about adultery, or attaching greater inherent worth to a relationship which has been formalised by marriage than to any other relationship.”

In looking at the question of arguability at this stage, I would adopt that approach of Eady J.” [6]

The injunction was subsequently continued by Nicol J.