Case Law: ETK v News Group Newspapers “Privacy Injunctions and Children” – Edward Craven

The Court of Appeal today gave judgment in the case of ETK v News Group Newspapers Ltd ([2011] EWCA Civ 439). In a decision that may provoke criticism from sections of the media, the Court granted an interim injunction preventing the defendant from publishing details about the claimant’s sexual affair with a colleague in the entertainment industry. However the decision is of particular importance for its analysis of the role of children’s rights in applications for privacy injunctions.  In a robust judgment that draws upon international conventions, ECHR jurisprudence and domestic case law from the immigration field, the Court of Appeal held that the rights of any child who is likely to be affected by publication of private information must be accorded “particular weight” in the ultimate balancing exercise.  This approach applies even where the adverse publicity that threatens to harm the child is the direct result of the actions of one of the child’s parents.

The facts

The claimant was a married man with two teenage children. In 2009 he began a sexual relationship with X, a married colleague in the entertainment industry. The affair continued for several months until April 2010, when the claimant’s wife learned of the relationship. After the affair ended the claimant told his employers that in an ideal world he would not have to see X at all and that either he or X would leave their current employment; however both accepted that their working commitments made this impossible.

In December 2010 X’s employers informed X that her services were no longer required and that she was being dismissed. This came as a bitter disappointment to X, who at one point raised the possibility of bringing legal proceedings against her employer. In the end, however, no such claim was ever brought and X’s employment was duly terminated.

The News of the World later learned about the claimant’s adulterous relationship and the circumstances that led to X’s dismissal. When the claimant discovered that the newspaper intended to publish this information he applied to the court for an interim injunction. Both the claimant’s wife and X supported the application.

Decision of Collins J

The application came before Collins J who gave a short ex tempore judgment in favour of the newspaper. The judge began by ruling that there was a reasonable expectation of privacy. He then proceeded to conduct a balancing exercise between the newspaper’s Article 10 right and the claimant’s Article 8 right. On this point he held that there was a public interest in the effect of the adultery. As regards the claimant’s children, whilst the judge acknowledged that publication would probably have an “adverse effect” on them, he went on to say that:

“One recognises the concerns that this issue raises but unfortunately if one parent behaves in a way that attracts adverse publicity it will affect the children. This is not something which can tip the balance if there is otherwise no good reason to grant an injunction.”

On this basis Collins J therefore refused to grant an injunction since the newspaper intended to go no further than reporting the fact of the affair and X’s resultant dismissal. The Claimant subsequently appealed to the Court of Appeal, which heard argument five days after the initial hearing before Collins J.

 Judgment of the Court of Appeal

The Court of Appeal began by summarising the general principles that guide the court’s approach to cases of this nature. As is well known, the courts must answer two questions when deciding applications for injunctions to restrain publication of private information: First, does the claimant have a reasonable expectation of privacy? Secondly, if there is a reasonable expectation of privacy, does the “ultimate balancing test” require an injunction to be granted? At this second stage the court will apply the principles set out by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593. Under that approach neither Article 8 nor Article 10 has automatic precedence over the other. Instead, an “intense focus” on the comparative importance of each right in the individual case must be undertaken and a proportionality test must be applied to any measures that would restrict either of those rights.

Ward LJ (with whom Laws and Moore-Bick LJJ agreed) began by considering the newspaper’s cross-appeal, which argued that the judge had been wrong to conclude that the claimant had a reasonable expectation of privacy in relation to the sexual relationship. The News of the World contended that the way that the claimant and X had conducted their relationship had resulted in the affair becoming widely known amongst their colleagues, including senior managers. It was claimed that the existence of the relationship was “naturally accessible to outsiders” and that therefore there was no reasonable expectation of privacy.

Ward LJ rejected this argument. In the present case the sexual relationship was essentially a private matter and the fact that work colleagues knew of the relationship did not put the information into the public domain:

“In my judgment the appellant was reasonably entitled to expect that his colleagues would treat as confidential the information they had acquired whether from their own observation of the behaviour of the appellant and X or from the tittle-tattle and gossip which larded the office conversation or from a confidential confession to a colleague. A reasonable person of ordinary sensibilities would certainly find the disclosure offensive.” [11]

The Court of Appeal then went on to consider the main issue in the claimant’s appeal: whether the judge had been correct in his application of the balancing exercise. Ward LJ began with a reminder that news publishers need to sell papers in order to remain in business:

“To restrict publication simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers.  We have to enable sales if we want to keep our newspapers.  Unduly to fetter their freedom to report as editors judge to be responsible is to undermine the pre-eminence of the deserved place of the press as a powerful pillar of democracy.  These considerations require the court to tread warily before granting this kind of injunction.” [13]

However the Court of Appeal went on to identify a critical flaw in Collins J’s reasoning. Ward LJ held that the judge had failed to pay sufficient regard to the rights of individuals other than the claimant who were likely to be affected by publication. Both X and the claimant’s wife strongly opposed publication. X’s rights were at the forefront of the story that the newspaper wished to publish and X was emphatically opposed to any invasion of her privacy. As regards the wife and children, Ward LJ explained that:

“The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save them the ordeal of playground ridicule when that would inevitably follow publicity.  They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment.” [17]

Ward LJ disagreed with the judge’s view that the harmful effect on the children could not tip the balance since the adverse publicity had arisen as a result of their father’s behaviour. On this point he referred to the decision in Neulinger v Switzerland (2010) 28 BHRC 706, where the European Court of Human Rights stated that: “there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount.” In reaching this conclusion the European Court stated that the Convention must not be interpreted in a vacuum and that account should be taken of “any relevant rules of international law applicable in the relations between the parties”, including in particular “the rules concerning the international protection of human rights”. Following the lead of the Strasbourg Court, Ward LJ accordingly referred to several international instruments – the UN Declaration on the Rights of the Child 1959, the Convention on the Rights of the Child 1989 and the EU Charter of Fundamental Rights – in support of his reasoning.

Ward LJ also drew support from the Supreme Court’s judgment in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. The question in ZH was whether it would be permissible to deport a non-citizen parent (who had an “appalling” immigration history) if the effect of deportation would be that a child with British citizenship would also be forced to leave the country. In ruling that it would not, Baroness Hale stated that “the court’s earlier approach to immigration cases is tempered by a much clearer acknowledgment of the importance of the best interests of a child caught up in a dilemma which is of her parents’ and not of her own making”.

In ETK Ward LJ explained that a similar approach must now be applied to applications for privacy injunctions. On this point he adopted the following summary from Lord Kerr’s judgment in ZH:

“It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests.  This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all considerations.  It is a factor, however, that must rank higher than any other.  It is not merely one consideration that weighs in the balance alongside other competing factors.  Where the best interests of the child clearly favour a certain course, that course should be followed, unless countervailing reasons of considerable force displace them.  It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms.  What is determined to be in a child’s best interests should customarily dictate the outcome of cases such as the present, therefore, and it will require considerations of substantial moment to permit a different result.” [Emphasis added]

However Ward LJ was careful to emphasise that these principles could not be transplanted without a consideration of the particular media/privacy context:

“However this learning must, with respect, be read and understood in the context in which it is sought to be applied.  It is clear that the interests of children do not automatically take precedence over the Convention rights of others.  It is clear also that, when in a case such as this the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests.  Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike.  The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card.” [Emphasis added] [19]

In the light of this analysis, the Court of Appeal then asked whether the refined approach could be reconciled with Lord Steyn’s guidance in Re S. Ward LJ answered that Lord Steyn’s judgment had been handed down before Neulinger had called for a “reappraisal” of the position. However in any event Lord Steyn had been concerned strictly with the balance between Article 8 and Article 10 and had not addressed the “additional rights” of children. Ward LJ therefore made it clear that in cases involving children, the court is not simply looking at Article 8 in isolation, but must consider the position in international law too. Accordingly, if one follows the approach of requiring an “intense focus” on the competing rights at play, the question for the court was whether the force of the article 10 considerations outweighed all of the children’s rights.

Applying this approach, the Court of Appeal concluded that an interim injunction should indeed be granted. According to Ward LJ, the decisive factor was the contribution that the information would make to a debate of general interest. In his view the organisation of the economic, social and political life would not be enhanced by publication. He stated – somewhat enigmatically – that whilst some members of the public would have noticed the end of X’s employment and will have speculated about why she left,

“…the reasons for her leaving give rise to no debate of general interest. The reasons for her leaving may interest some members of the public but the matters are not of public interest. Publication may satisfy public prurience but that is not a sufficient justification for interfering with the private rights of those involved.” [23]

Discussion

ETK is an important decision for several reasons. Its principal importance lies in the weight that must now be given to the rights of children in applications for privacy injunctions. The Court of Appeal has laid down a clear marker that the rights of children who are likely to be affected by publication must be given “particular weight” in the balancing exercise. When viewed in the light of ZH (and in particular Lord Kerr’s statement that children’s rights “must rank higher” than any other factor) these dicta suggest that the interests of children – although not decisive per se – will surely exert a significant influence over the outcome of many privacy cases in future.  We can certainly expect to see lawyers laying greater emphasis upon the likely impact of publication upon the claimant’s children (particularly if those children are of school-age).

It is also noteworthy that the Court of Appeal relied upon jurisprudence from the field of immigration law in developing its reasoning. This is an interesting development, not least because in the immigration arena the Supreme Court has followed the Strasbourg court in holding that the ECHR must be interpreted in harmony with the general principles of international law. It will be interesting to see whether ETK acts as a springboard for the courts to examine other international conventions when deciding future privacy cases.

Lastly, it is striking that the judgment contains relatively few details about why publication of the private information would not advance the public interest in this case. The Court of Appeal’s discussion of this issue is brief and the lack of specific information about the background to the case makes it very difficult to assess whether the court’s ultimate conclusion is a reasonable one. This is a regrettable – although perhaps unavoidable – feature of the judgment, since it means that the public are left in the dark as to the reasons that have led the court to its conclusion. Of course, this is a product of the classic dilemma that arises in most privacy cases. As the Court of Appeal noted in JIH v News Group Newspapers [2011] EWCA Civ 42, the more details that the judgment contains, the greater the likelihood that the people involved will be identified and the entire object of the injunction thwarted. Nevertheless, the very fact that information is being withheld from public scrutiny makes it especially important that the public are able to understand the reasons underlying the court’s decision.

The practical implications of ETK are potentially far reaching. The decision undoubtedly strengthens the hand of many claimants seeking privacy injunctions. The judgment is likely to be characterised as an example of supine judges using dubious human rights laws to cover up the misdeeds of errant celebrities. However the essence of the Court of Appeal’s reasoning is undoubtedly correct. In recent years the courts have quite properly recognised that primacy should be afforded to children’s interests when taking immigration decisions that will directly impact upon their welfare. This has long been the approach in matrimonial law (section 25 of the Matrimonial Causes Act 1973, for example, makes the welfare of any child of the “first consideration” in any ancillary relief proceedings). It is difficult to see why this approach should not also apply in the context of misuse of private information, where the consequences of publication on a child’s wellbeing can be equally profound.

Edward Craven is trainee barrister at Matrix Chambers.