The kiss-and-tell is alive and well. On Wednesday 5 September 2012 Mr Justice Lindblom handed down his judgment in a privacy claim brought by the former England football manager Steve McClaren against News Group Newspapers, owner of the Sun on Sunday. The claimant had sought an order restraining the tabloid from publishing a story about his extra-marital affair. Following an emergency telephone hearing on the eve of publication, the judge dismissed the application and refused to grant an injunction. The defendant ran the story the very next day.  

The case is interesting for several reasons. Although the newspaper heralded the decision as an important victory for free speech, the merits of the decision are highly questionable. In refusing to issue an injunction the Judge relied on the claimant’s status as a “prominent public figure” from whom “the public could reasonably expect a higher standard of conduct”. This comes perilously close to reviving the “Flitcroft heresy” – the discredited notion that a person’s privacy rights automatically diminish the moment they enter the public eye. It is also based on the dubious factual premise that five years after he retired from a 16-month stint as England football manager (the shortest tenure of any England manager), and four years after left the UK to work in the Netherlands, the claimant remains a high profile public figure.

The facts

The claimant is a married professional football manager. Between August 2006 and December 2007 he was manager of the England national team. In 2008 he moved to the Netherlands where he now manages a Dutch football league club, FC Twente.

Shortly before his appointment as England manager The Sun published a story about an earlier extra-marital relationship. Although the circumstances of that publication were disputed, the claimant did not seek an injunction and gave an interview to the paper in which he stated publicly that his marriage could survive the affair.

In August 2012 the claimant had a sexual encounter with a woman in Manchester. The Sun on Sunday had learned of the relationship and a journalist working for the paper photographed the pair as they walked along the street towards the woman’s flat.   It appeared that this was a “set up”.  The woman in question, Saima Ansari, sold her story to the tabloid. The claimant sought an injunction preventing the paper from publishing any information about the encounter. He argued there was no public interest in the story and suggested that Ms Ansari. His argument was strengthened by Ms Ansari’s involvement in a previous kiss-and-tell with Sven Goran-Eriksson, another past England manager.

Judgment

Lindblom J began his reasoning by reciting the familiar two-stage privacy test. He accepted the Claimant had a reasonable expectation of privacy in respect of the affair. The real dispute concerned the balancing exercise at the second stage. The judge’s analysis on this question was short but emphatic:  as a former manager of the England football team, the claimant is “undoubtedly a public figure”. As such, the newspaper could legitimately contend he belonged to “the category of those from whom the public could reasonably expect a higher standard of conduct”.  Although there is a degree of difference between a former England manager and a serving England captain, the claimant “is clearly still a prominent figure who has held positions of responsibility in the national game”.

Whether the encounter was deliberately set up was a “peripheral” issue. Weighing up the claimant’s Article 8 right to respect for his private life against the defendant’s Article 10 right to free expression, the balance came down decisively in favour of the defendant.

Comment

This is a troubling judgment. Two elements in the judge’s reasoning are difficult to reconcile with established principles. First, there is the puzzling suggestion that a former England manager remains a public figure from whom the public reasonably expects a higher standard of behavior. Second, there is the implicit suggestion that, as a prominent public figure, there is automatically a greater interest in exposing the claimant’s private shortcomings. Neither point withstands serious scrutiny.

In support of its right to publish the story the defendant relied on A v B Plc [2003] QB 195. In that case the Court of Appeal refused to restrain the defendant from publishing details about the extra-marital sexual liaisons of Gary Flitcroft, a Premier League footballer. Lord Woolf CJ controversially stated:

“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.”

However just a few months later the Court of Appeal retreated from that approach in Campbell v MGN Limited [2003] QB 633:

“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.”

In Von Hannover v Germany (2005) 40 EHRR 1 the European Court of Human Rights exposed the flaw in the A v B approach:

63. The Court considers that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of “watchdog” in a democracy by contributing to “impart[ing] information and ideas on matters of public interest (Observer and Guardian, cited above, ibid.) it does not do so in the latter case…

 “76. 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.”

The definition of a “public figure” is a slippery one. In McKennitt v Ash [2008] QB 73 the Court of Appeal held that A v B could not be reconciled with Von Hannover and “cannot be read as any sort of binding authority on the content of articles 8 and 10”. The court examined Lord Woolf’s class of people from whom “higher standards of conduct can rightly be expected by the public”. According to Buxton LJ this category is “no doubt the preserve of headmasters and clergymen, who according to taste may be joined by politicians, senior civil servants, surgeons and journalists”. At the same time, Buxton LJ expressly doubted Lord Woolf’s notion of “involuntary role models”.

More recently, in Ferdinand v MGN Limited [2011] EWHC 2454 (QB) Nicol J said that a substantial body of the public would consider that the England football captain fell within Buxton LJ’s list of “those from whom higher standards were expected”. And in Spelman v Associated Newspapers Tugendhat J referred to the European Court’s decision in Axel Springer AG v Germany [2012] ECHR 227, which quoted from the Resolution of the Parliamentary Assembly of the Council of Europe on the Right to Privacy:

“Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain.”

This is a thorny area and the authorities do not all speak with one voice. However the Strasbourg case law is clear – private information may only be published if it contributes to a debate of general interest. Lindblom J’s judgment in McClaren places considerable (apparently decisive) weight on the fact the Claimant is “a prominent public figure who has held positions of responsibility in the national game”.

But although the claimant is known to football fans across the country, he has never held executive office, holds no political power, receives no public funds and, as the manager of a Dutch football league team, performs no public functions. Whatever other consequences it may have, the role of England manager does not transform its occupant from ordinary mortal to paragon of moral virtue. In these circumstances, it is hard to see how salacious stories about Steve McClaren’s sex life contribute to a debate of public interest.

The judgment also glosses over an important point about timing. Steve McClaren is not the current England manager. Nor is he the most recent former manager. In fact, he left the post almost five years ago, after a spell in charge that lasted little over one year. Even supposing that an England manager should be held to a higher moral standards than the ordinary man on the street, a sexual liaison half a decade later tells us little about his qualification for the job in 2007. Any debate about his suitability to manage the national team is clearly academic.

Conclusion

McClaren sets a worrying precedent. It is often said that the public interest is not the same as what interests the public. Lindblom J’s judgment conspicuously fails to identify any debate of general public interest that the story contributes to. The decision also suggests it is difficult to cast off the mantle of “prominent public figure”, even if an individual leaves the media spotlight for a number of years. Once a public figure, always a public figure? This is an unsatisfactory basis for dealing with important Article 8 rights.

It has been a quiet time on the privacy front. McClaren v News Group Newspapers Ltd [2012] EWHC 2466 (QB) is the first privacy claim against a News International title for over a year. It is also the first  injunction application against a national newspaper since Spelman v Associated Newspapers [2012] EWHC 355 (QB) in February 2012 (which was also unsuccessful).

Much ink has been spilled over the “chilling” effect of Lord Justice Leveson’s Inquiry into press standards. But after 12 months of Leveson-induced quiet, the McClaren exposé suggests a return to more rumbustious times for the tabloids.

Edward Craven is a barrister at Matrix Chambers.