Wayne Rooney’s Private Life and the Public Interest [Updated]

“In May this year, just before ­England’s World Cup disaster, he insisted being a ­father had changed his life. “Becoming a dad means you have to be a role model for your son and be someone he can look up to,” he said.

“Now I have someone to look after and I just want to be with Kai and Coleen as much as possible. I don’t go clubbing very much any more, maybe only a couple of times a year. I’m now in bed by 10.30pm.””

This is plainly of no relevance.  Putting everything else to one side, it is clear on the face of the “Sunday Mirror” article that the last encounter with Ms Thompson was in October 2009.   This can have no relevance to accuracy of statements made in May 2010 about future conduct.  The other justification appears to be the following:

“And he publicly acknowledged the onus on him to behave responsibly, ­saying: “The lifestyle I lead as a ­footballer means I am always in the spotlight.””

This is a patent non-sequitur.   All that Mr Rooney has acknowledged is that he is always the subject of press attention:  this cannot be construed as a promise to behave responsibly, much less statement about conduct now exposed as hypocritical.

The central justification appears to be the familiar one that this conduct exposes the hypocrisy of Mr Rooney’s “crafting” of “a brand of happy family life that’s helped win big-money sponsorships and endorsements“.    There are a number of difficulties with this argument. If the claim is that Mr Rooney should be deprived of his ordinary privacy rights as a result of the public interest in exposing his hypocrisy, more specifics are needed.  What false public pronouncements are actually being shown to be false?  A “brand of happy family life” – even if “carefully crafted” – is not, in itself, a public statement about conduct or morality.  Note the vagueness of the concept of “crafting a brand” or “image nurturing” – this could be said to take place every time Mr Rooney and his wife smile at each other in public.  This kind of assertion is a patently inadequate basis to justify splashing someone’s private life across the pages of the national press.

The idea of the economic interest in the “brand of happy family life”  that has helped win “big money sponsorhip” must also be treated to critical analysis.  This kind of thing is often asserted by the media but details are never provided.   Sponsorship contracts do not include “happy family” or “marital fidelity” clauses and in most areas a “happy family brand” is of no particular economic benefit.  Stories of family scandal, break up, getting up back together are likely to generate more publicity and more income than blameless fidelity.

In short, once again, no clear “public interest” justification for this story has been articulated.  This is simply a “kiss and tell” story designed to sell newspapers and humiliate a professional sportsman whose on the pitch performances have been the subject of criticism and complaint by football fans.   He may not be scoring goals but it is difficult to see how this can sensibly be linked to a number of sexual liaisons which took place over 10 months ago.

There is one further issue: was Mr Rooney given advance notice of the story?  According to the “Mail on Sunday” report of the story:

“it is understood his lawyers tried to fight the allegations when they first surfaced three weeks ago, but ultimately decided they were indefensible because of previous revelations about the star and prostitutes”.

We do not know whether this is correct.  If it is it is an unfortunate reflection on the state of English privacy law – where it is thought to be impossible to restrain the publication of patently private information because of previous press publicity.  If, on the other hand, Mr Rooney was not given proper notice then this would be further support for the arguments being advanced by Max Mosley in Strasbourg in favour of a legal obligation to give advance notice.

It is perhaps worth standing back for a moment and asking what stories of this kind achieve.  Mr Rooney’s marriage has been damaged, perhaps irreparably.   His wife, the primary victim, has been publicly humiliated.   The press have an ephemeral story – filling the front pages for a couple of days before the aim is turned elsewhere – and Ms Thompson receives a sum equivalent to something like a month’s work at her chosen profession.  It is difficult to see how the overall balance is a positive one.

[Update] An article on the “Telegraph” website considers the question as to why Mr Rooney did not apply for an injunction against the News of the World and the Sunday Mirror.  It reports its “understanding” that:

“Rooney considered applying for a super-injunction on the grounds of privacy. But the footballer was advised that such any such application would probably fail, because he has previously chosen to share intimate details of his life with the media”.

The “Telegraph” quotes publicist Max Clifford – who says that he is not involved in the case “directly” – as saying that Mr Rooney’s advisors “feared that the fact that Wayne had previously spoken of his shame at sleeping with prostitutes would count against them.”  However, Mr Clifford apparently takes a different view on the law or privacy:

“I think Rooney was badly advised. Despite the circumstances of his case, he still had a good chance of obtaining an injunction. Most judges are still very much in favour of privacy.”

We do not know what Mr Rooney was told in advance about publication and what advice, if any, he was given as to his prospects of successfully applying for an injunction.   The merits of a potential application depend, of course, on what has previously been said and done by or on behalf of Mr Rooney – or what the press have reported as having been said and done (which is often not the same).  But the basic point remains: why does the British press think and it is appropriate publish this kind of material?   Whatever subtle issues might have arisen on an injunction application it is obvious running interviews with prostitutes with the aim of humiliating their clients is not a proper task for the media in a democratic society.