The grant of a privacy injunction in the case of AMC v News Group Newspapers ([2015] EWHC 2361 (QB)) has unleashed a deluge of largely inaccurate media comment worthy of the “super injunction spring” of 2011. Yet much of what is reported in the press does not appear in the judgment, which was in fact decided on established principles after careful balancing of the rights of the respective parties.
Background
The First Claimant (“A1”) is a professional sportsman. He is married to the Second Claimant (“A2”). Some years ago, before their , A1 had a relationship with a woman, X. News Group Newspapers Limited (“NGN”), wish to publish wished to publish X’s story about the relationship in The Sun on Sunday “to put the record straight”.
A1 and A2 applied for an interim injunction. The application was dealt with at a telephone hearing on the afternoon of Saturday 1 August 2015 by the duty judge, Laing J.
Judgment
As is well established in privacy injunctions, the starting point was the balancing between the respective Article 8 rights of A1 and A2 against the Article 10 rights of X and NGN [10]. The Judge then noted that neither side had a burden to discharge and that section 12 of the Human Rights Act 1998 required the Applicants to demonstrate that they were likely to succeed at trial [11] and [12].
The Judge accepted that publication would interfere with the Article 8 rights of the wife (A2) as well as those of the husband (A1). She rejected the submission that, as a couple, they courted publicity [14].
The first issue was whether there was a “reasonable expectation of privacy”. She noted that material about a person’s sexual life, whether it relates to a transient, or more durable relationship, is an important aspect of the interests protected by Article 8 [15].
The relationship was not a one night stand and A1 and X conducted it clandestinely and X did not treat the relationship as public property [17] to [18].
The Judge then considered the argument that, as a successful sportsman A1 was a public figure. She said:
“I also take into account the fact that successful sportsmen necessarily have a prominent position in public life, and because of that, and whether they like it or not, lose control over aspects of their private life. But I do not consider that being a public figure of and by itself makes the entire history of that person’s sex life public property” [19].
She did not consider that this undermined A1’s reasonable expectation of privacy.
As to the argument that A1 was a “role model”, the Judge said it was important to analyse what sort of role model he was or could be:
“He is a role model for sportsmen and aspiring sportsmen. Any scrutiny of his conduct away from sport ought to bear a reasonable relationship with the fact that he is a sportsman. His position does not turn him into an example in every sphere of his existence. He is not a role model for cooks, or for moral philosophers. The fact that he is a prominent sportsman does not mean that he impliedly pontificates publicly about private morality” [20]
In these circumstances, the Judge concluded that publication of the story would “undoubtedly interfere” with A1 and A2’s Article 8 right.
Second, the Judge turned to the justification that was advanced for the interference. She took into account the freedom of the press, although noting that it could not, by itself, trump the Applicants’ Article 8 rights [22]. She also noted that the fact that newspapers are run for profit did not lessen the important of their Article 10 rights and that newspaper editors had some leeway in judging where the public interest lies [23]
In this case the public interest arguments concerned the suggestion that A1, who should be a role model, was in reality a hypocrite.
First, there was the argument that the conduct of the relationship broke rules relating to his sport. The Judge was unimpressed by this argument
“even if I assume that he did break any rules, I do not see that there is any public interest in revealing this now, some years after the event … I was shown no evidence to suggest that there is any current debate about past infractions by sportsmen of rules of this sort” [24]
Second, it was said that A1 deceived his manager and A2. However, the Judge noted that A2 now knows the truth and that his deceit of her “is a private matter between them”. There was no public interest exposing in the deceit of a former team manager [25].
Third, it was said that A1 had an image as a “clean living family man” and that the story was an antidote to this false impression. Again the Judge was unimpressed
“I reject the strained submission that any of the material relied on in this context shows that A1 has misled the public by creating and projecting a false image of himself. There is nothing misleading or untruthful, in my judgment, about any of this material”.
The Judge then dealt with the argument that there was a public interest in the exposure of conduct which was “socially harmful”. This passage has been taken up (and misrepresented) by a number of newspapers. The Judge said
“I doubt whether a court is equipped to act as an arbiter of what conduct, falling short of illegality, is ‘socially harmful’ to the extent that it should be publicly exposed. The court is perhaps even less well-equipped to do this than a newspaper editor. A1’s conduct in two-timing A2 for a relatively brief period before they married must have hurt the two women concerned when they found out about it. It is not for me to moralise about such conduct. But I do express a suitably diffident doubt whether this conduct was socially harmful. It caused private pain; but no-one was corrupted or coerced. The conduct had no ramifications beyond the three people who were affected by it. It did not affect society in any way. If it did not, I cannot see how it could be described as socially harmful. I am conscious that there is a risk that the phrase ‘socially harmful’ can become a pretext for judging others by reference to moral positions which those others do not, or might not, share. This is a particular risk for a court in an increasingly secular society in which some issues, especially questions of sexual conduct, do not attract the consensus which they once did. In my judgment, few people, other than adherents to strict religious codes, could rationally consider that this conduct is so fundamentally inconsistent with being a role model of the kind which A1 is that there is a public interest in exposing it” [27]. (Emphasis added)
Finally, the Judge rejected the justifications advanced by X for the disclosure of the information.
In summary, the Judge held that the interference with the Article 8 rights of A1 and A2 was not justified. She held that McClaren v News Group Newspapers Limited ([2012] EWHC 2466 (QB)) was distinguishable, because the claimant in that case was married at the material time, and second, he had, in the past, sold a similar story about himself to a newspaper.
In relation to the Article 10 rights of X and NGN, the Judge considered that the grant of an injunction restraining publication for a short period was proportionate. Although there was material in the public domain, there was a significant gap between what was public and what would become public in the story were published. As a result, it was proportionate to restrain the publication of further material [31].
The judge therefore granted an injunction, including at order for anonymity, until Wednesday 5 August 2015. On that date the matter was listed before Dingemans J but, as he recorded in a very short judgment ([2015] EWHC 2374 (QB)) the parties agreed orders containing undertakings and directions for trial and no hearing was necessary.
Comment
This was a carefully reasoned judgment which NGN decided not to challenge on the return day. The Judge carefully considered the weak public interest arguments advanced by the newspaper and dismissed them all. In many respects there was nothing remarkable about the judgment; it is simply an application of well established principles to fairly unremarkable facts and certainly not a judgment worthy of the outrage expressed by some parts of the media.
The Judge’s analysis of the concepts of “public figure” and “role model” are useful in area where the case law remains undeveloped. The judgment makes clear that public figures do not lose all their privacy rights by reason of participation in sport or other popular activities. A person who is a “role model” for those interested in his or her sport does not become a “role model” for all other forms of human activity. Sportsmen do not, in general, hold themselves out as moral exemplars.
The inevitable press criticism of the decision has focussed on something that the judge did not say. The criticism is encapsulated in these words of the Daily Mail
“Mrs Justice Laing’s reason for granting the injunction – she declared that Britain is now such a Godless society that only the puritanical still believe that celebrities’ sexual affairs should be publicly exposed – is both offensive and misguided”.
Unsurprisingly, the Laing J said no such thing. The word “godless” does not appear in her judgment. We have quoted the passage above. Her conclusion was that only “adherents to strict religious codes” could consider an affair as being “so fundamentally inconsistent with being a role model of the kind which A1 is that there is a public interest in exposing it”.
The Mail goes on to refer to belief in “marriage vows” – having apparently failed to notice that A1 was not married at the time of the affair and that this was expressly relied on as point of distinction from the McClaren case.
Prolific media commentator Mark Stephens suggested that there was a “public health” issue concerning the wife’s right to know that her husband is having sex with other people. He appears to have missed the point that the wife did know (being one of the claimants) and the affair pre-dated the marriage.
What conclusions can be drawn from this case?
First, four years since the beginning of the Leveson Inquiry, the “kiss and tell” story seems to be making something of a comeback. With that, we are likely to see an increase in injunctive relief being sought. If the media coverage of this case and those of the “superinjunction spring” of 2011 is anything to go by, we may also continue to see much misreporting and hysteria amongst those in the media who wish to profit from such stories.
Second, despite the extension of the concept of “public figure” in cases such as Spelman and McClaren, sportspeople and celebrities are still entitled to have their private lives protected. This judgment gives important clarification as to the extent to which sportsmen and women are to be held out as “role models” and confirms that exposure sexual activities between two consenting adults will rarely be justified as being in the public interest.
Kirsten Sjøvoll is a barrister at Matrix Chambers specialising in media law
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