Opinion: “Reviving the ‘Flitcroft heresy’ – does freedom of expression require an economically viable press?” Antony White QC

1 10 2010

Gary Flitcroft

In the well known Gary Flitcroft case (A v. B plc [2003] QB 195) a married Premier League footballer failed in his attempt to obtain orders restraining a national newspaper from publishing stories about his sexual encounters with two women who wished to sell their stories. The decision of the Court of Appeal (Lord Woolf CJ, Laws and Dyson LJJ) has proved controversial in part.  However, much of the Judgment of the Court is orthodox and of continuing application and importance.  In particular, the explanation at [4] of the way in which the rights protected by Articles 8 and 10 have been absorbed into the long-established action for breach of confidence was approved by Lord Nicholls in Campbell v. MGN Limited [2004] 2 AC 457 at [17]

The Judgment also contains an important reminder of the reason why Section 12(4) of the Human Rights Act 1998 requires the Court to have particular regard to the importance of freedom of expression in any case in which it considers whether to grant relief which might affect that right.  At [11(iv)] the Court stated:-

The fact that if the Injunction is granted it will interfere with the freedom of expression of others and in particular the freedom of the Press is a matter of particular importance.  This well-established common law principle is underlined by Section 12(4).  Any interference with the Press has to be justified because it inevitably has some effect on the ability of the Press to perform its role in society.  This is the position irrespective of whether a particular publication is desirable in the public interest.  The existence of a free Press is in itself desirable and so any interference with it has to be justified.”

The controversial part of the Judgment was contained in [11(xii)]:-

Where an individual is a public figure he is entitled to have his privacy respected in the appropriate circumstances.  A public figure is entitled to a private life.  The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media.  Even trivial facts relating to a public figure can be of great interest to readers and other observers of the media.  Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure.  The public figure may hold a position where higher standards of conduct can be rightly expected by the public.  The public figure may be a role model whose conduct could well be emulated by others.  He may set the fashion.  The higher the profile of the individual concerned the more likely that this will be the position.  Whether you have courted publicity or not you may be a legitimate subject of public attention.  If you have courted public attention then you have less ground to object the intrusion which follows.  In many of these situations it would be overstating the position to say that there is a public interest in the information being published.  It would be more accurate to say that the public have an understandable and so legitimate interest in being told the information.  If this is the situation then it can be appropriately taken into account by a Court when deciding on which side of the line a case falls.  The Courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. The same is true in relation to other parts of the media.” (Emphasis added).

This controversial passage was qualified six months later by a differently constituted Court of Appeal in Campbell v. MGN Limited ([2003] QB 633).  Lord Phillips MR, giving the judgment of the Court stated:-

We wish, however, to make some brief observations about [Lord Woolf CJ’s guidance in A v. B plc], because we believe that it has been misunderstood by some.  When Lord Woolf CJ spoke of the public having “an understandable and so a legitimate interest in being told” information, even including trivial facts, about a public figure, he was not speaking of private facts which a fair-minded person would consider it offensive to disclose. … For our part we would observe that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media.  We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.” [40]-[41]

More significantly, the “misunderstood” statements by Lord Woolf CJ in A v. B plc appeared to be inconsistent with the subsequent decision of the European Court of Human Rights in Von Hannover v. Germany (2005) 40 EHRR 1.  In its conclusion in that case the Court stated

“As the Court has stated above, it considers that the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest.  It is clear in the instant case that they made no such contribution since the Applicant exercises no official function and the photos and articles related exclusively to details of her private life.

Furthermore, the Court considers that the public does not have a legitimate interest in knowing where the Applicant is and how she behaves generally in her private life even if she appears in places that cannot always be described as secluded and despite the fact that she is well-known to the public.  Even if such a public interest exists, as does a commercial interest of the magazines in publishing these photos and these articles, in the instant case those interests must, in the Court’s view, yield to the Applicant’s right to the effective protection of her private life.” [76-77]

In McKennitt v. Ash [2008] QB 73 the Court of Appeal considered whether the guidance given by Lord Woolf CJ in A v. B plc was consistent with the decision of the European Court of Human Rights in Von Hannover. Buxton LJ, with whom Latham and Longmore LJJ agreed, stated that:-

The width of the rights given to the media by A v. B plc cannot be reconciled with Von Hannover’s case.” [62]

He went on echo the concerns previously expressed by Lord Phillips MR about Lord Woolf CJ’s treatment of involuntary role models [65].  Buxton LJ then turned to consider Lord Woolf CJ’s point that weight should be given to the commercial interests of newspapers in reporting matters that interest the public.  He said

“That view has also received criticism, and it seems clear that this Court in Campbell’s case, in the passage cited above, was not entirely happy with it.  It is difficult to reconcile with the longstanding view that what interests the public is not necessarily in the public interest…  It is fortunately not necessary to pursue that issue further, because it is merely a general factor that cannot be said to have any significant impact on the present case.” [66]

It seems to follow from Von Hannover, as interpreted and applied in McKennitt v. Ash, that the public interest in a vigorous and economically viable Press will not justify the publication of private information in an article, at least where the article makes no contribution to a debate of general interest to society.

However, the important point which has emerged in recent cases is that the public interest in an economically viable Press may be a factor of real significance where the article does make a contribution to a debate of general importance, and the question is whether the inclusion of private information about a particular individual in the article can be justified.  In other words where the Court has to decide whether an article relating to a matter of public interest can be illustrated by reference to the personal circumstances of a particular individual.

This revival and remodelling of Lord Woolf CJ’s identification of the public interest in an economically viable Press first appeared in the speech of Lord Steyn in Re S (a child) (Identification: Restrictions on Publication) ([2005] 1 AC 593).  In that case, the House of Lords considered the justification for an Injunction preventing any publication in media reports of a criminal trial of the name or any photograph of the mother or deceased brother of the child, S.  Refusing such an Injunction the House of Lords recognised that newspaper articles about criminal trials inevitably relate to a matter of public interest.  It is legitimate, indeed desirable, to allow newspapers to write about matters of public interest in a manner which is likely to interest their readers.  Accordingly Lord Steyn stated:-

Thirdly, it is important to bear in mind that from a newspaper’s point of view a report of a sensational trial without revealing the identity of the Defendant would be a very much disembodied trial.  If the newspaper chose not to contest such an Injunction, they are less likely to give prominence to reports of the trial.  Certainly readers will be less interested and editors will act accordingly.  Informed debate about criminal justice will suffer.” [34]

As a result, although the child’s Article 8 rights were engaged, and would be interfered with by the proposed publication, no Injunction was appropriate.

In Re British Broadcasting Corporation ([2010] 1 AC 145) a similar approach can be seen in the speeches of Lord Hope and Lord Brown.  In that case an Anonymity Order had been made in relation to an appeal to the House of Lords in 2000 arising out of the trial of D for serious sexual offences.  D had been acquitted at trial when certain evidence was ruled inadmissible.  The House of Lords held that the evidence should have been admitted but the rule against double jeopardy which then formed part of English law prevented D’s re-trial.  Subsequently, the Criminal Justice Act 2003 abolished the rule against double jeopardy.  The BBC applied to the House of Lords to discharge the Anonymity Order so that it might broadcast a television programme relating to the abolition of the rule against double jeopardy in which D’s situation would be used to illustrate the points made.  The House of Lords granted the application and discharged the Anonymity Order.  It held that although D’s Article 8 rights were engaged, the publication of his identity and personal details in the programme pursued a legitimate aim and would be proportionate.

It was submitted on D’s behalf that the BBC could make a programme about the abolition of the double jeopardy rule without including his identity or personal details.  At [26] Lord Hope, with whom Lords Phillips and Neuberger agreed, dealt with this submission as follows:-

The programme that the BBC wished to broadcast has been inspired by the removal of the double jeopardy rule.  What this means in practice for our system of criminal justice is a matter of legitimate public interest.  Among the issues which can be so described are the kinds of offences to which Part 10 of the 2003 Act applies, and the circumstances in which an application for a person who has been acquitted to be re-tried would be appropriate.  These issues could, of course, be discussed in the abstract by reference to hypothetical facts and circumstances.  But the arguments that the programme wishes to present would lose much of their force unless they can be directed to the facts and circumstances of actual cases.  The point about D’s name is that the producers of the programme believe that its disclosure will give added credibility to the account that they wished to present.  This is a view which they are entitled to adopt and, given the content of the programme as a whole, it is an aim which can properly be regarded as legitimate.”

At [65]-[66] Lord Brown, with whom Lords Phillips, Hope, Walker and Neuberger all agreed, addressed the same point as follows:-

Why [D] asks rhetorically, cannot the BBC broadcast their programme simply referring to D as D without actually identifying him?  That submission is in my opinion to be found in para. 34 of Lord Steyn’s speech in In Re S (a child) ([2005] 1 AC 593): such a programme will indeed be “very much disembodied” and have a substantially lesser impact upon its audience.” [65-66]

In Re Guardian News and Media Limited ([2010] 2 WLR 325) a seven-Judge Supreme Court considered a similar issue in relation to Anonymity Orders in proceedings brought to challenge certain directions and designations under the terrorism legislation. Various Press and media organisations applied to the Supreme Court for the Anonymity Orders to be discharged to enable them to publish a full report of the proceedings.  The Judgment of the Court, delivered by Lord Rodger, held that the Article 8 rights of the individuals were engaged but were outweighed by the Article 10 claims of the media organisations.  At [63]-[64] Lord Rodger stated:-

What’s in a name?  “A lot”, the Press would answer.  This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people.  It is just human nature.  And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected.  Writing stories which capture the attention of readers is a matter of reporting technique, and the European Court holds that Article 10 protects not only the substance of ideas and information but also the form in which they are conveyed…  This is not just a matter of deference to editorial independence.  The Judges are recognising editors know best about how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information.  A requirement to report it in some austere, abstract form, devoid of much of human interest, could well mean that the report would not be read and the information would not be passed on.  Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive”.

The language used by Lord Rodger in this passage is strikingly reminiscent of the language used by Lord Woolf CJ in A v B plc.

A similar approach can be seen in the decision of the Court of Appeal in Independent News and Media Limited and Others v. A (by his Litigation Friend, the Official Solicitor) ([2010] 3 All E.R. 32).  A is a severely disabled 30 year old man who is totally blind and suffers from acute learning difficulties.  He is incapable of leading an independent life.  He is however a musical prodigy of international renown.  Several media organisations applied for permission to attend a hearing before the newly established Court of Protection in which A’s parents and sister had applied to be appointed to act as A’s deputies.  Under the Court of Protection Rules 2007 the general rule is that hearings in the Court of Protection are normally held in private.  However, the Court of Protection has a discretion to allow any person or classes of persons (including media representatives) to attend a hearing. The Court of Appeal upheld an Order made by Hedley J. authorising media representatives to attend the hearing in A’s case.

It was accepted that the media wished to write articles about a matter of legitimate public interest, namely the practice and procedure of the new Court of Protection.  Giving the Judgment of the Court Lord Judge CJ observed at [3] that A’s life story had “compelling human interest”, and “unsurprisingly, it has attracted public attention in the media”.  There had already been some publication of the details of A’s private life through the medium of a published biography with which he and his parents had co-operated.  Although the hearing before the Court of Protection would investigate intimate details of A’s personal life, the Court held that “it would be difficult to find a more appropriate hearing before the Court of Protection for media understanding of its processes”: [23].  Since it was in the public interest for the media to understand and write about Court of Protection processes, it was legitimate for A’s case to be used as an illustration:  “It is just because A’s remarkable situation, including (in particular through the medium of the published biography) details of his private life, is already in the public domain that the interests of the public and the media are legitimately engaged.”: [22].

The last case on this topic is another concerning a footballer.  In Terry v. Persons Unknown [2010] EMLR 16 Tugendhat J. held at [8] that there was a real prospect that evidence about John Terry’s position in life, both professional and personal, could form the basis of a submission that publication of at least the fact of a personal relationship would be in the public interest, alternatively that it was believed that publication would be in the public interest (as to which see further below).  In refusing a “super-injunction” restraining publication of the fact of the relationship Tugendhat J. expressly bore in mind the public interest in naming individuals in some circumstances, citing at [62]-[64] from the speeches of Lord Hope and Lord Brown in Re British Broadcasting Corporation [2010] 1 AC 145 referred to above.

The position we appear to have reached is that although the public interest in an economically viable Press will not justify the publication of private information about an individual in an article which makes no contribution to a debate of general importance in society, but if the article relates to a matter of public interest (Court proceedings, a change in the law, the leadership qualities of prominent footballers such as the England captain), the public interest in the viability of newspapers and magazines may be a significant factor justifying the inclusion of such information. The Courts have recognised that informed debate about matters of public interest has to be furthered by allowing the Press to publish articles which people want to read.  Including personal information about actual individuals is a reporting technique which interests readers.  Remodelled in this way the A v. B plc heresy has re-emerged as an important consideration in this area.

Antony White QC is a barrister at Matrix.  This is an extract from a talk given at the 2010 “Protecting the Media” conference


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