Case Law, Northern Ireland: Arthurs v NGN, no reasonable expectation of privacy in father’s criminal convictions – Ciaran O’Shiel and Charlotte Turk

15 02 2018

In the case of Arthurs v News Group Newspapers Ltd ([2017] NICA 70) the Northern Ireland Court of Appeal upheld a decision to reject the Plaintiff’s application for interim relief based on claims for misuse of private information and breaches of the Data Protection Act 1998.

The application sought to prevent the ongoing publication of an article by The Sun newspaper that reported on the criminal convictions of the Plaintiff’s father.

Background

The Plaintiff was a contestant on the BBC talent show ‘Let it Shine,’ the winners of which would join the cast of a new stage musical featuring the songs of boyband Take That. The show was first broadcast on BBC1 on 7 January 2017.

On 14 January 2017, The Sun published an article in print and online which referred to the Plaintiff being the son of Brian Arthurs, a former IRA Brigade Commander. The article reported that the Plaintiff’s father had been jailed for 25 years for possessing explosives and that he had also been convicted of a £250,000 mortgage fraud.

The Plaintiff applied for an interim injunction in relation to the continued online publication of the article on the ground there had been a misuse of private information and an interim order pursuant to Section 10 of the Data Protection Act 1998 (the DPA). A reporting restriction and anonymity order restraining publication of the proceedings were also sought.

High Court Judgment

The interlocutory applications were heard by Burgess J in the Northern Ireland High Court on 27 April 2017, where he refused to grant the interim relief sought.

Misuse of private information

It was found that the Plaintiff did not have a reasonable expectation of privacy in being linked to his father and his criminal convictions. This decision was based on the following findings of fact:

  • The judge considered the Plaintiff’s age and the fact he believed he was mature enough to undertake such a challenge should he be successful in the talent show. He rejected the Plaintiff’s argument that even though he was approaching his 19th birthday, he was sufficiently close to the cusp of ‘childhood’ to be entitled to a heightened level of protection in terms of his privacy rights.
  • The Plaintiff was asked by a BBC producer if there was anything in his family background that may attract publicity. He revealed that his uncle had been killed during the Troubles, but chose not to disclose his father’s criminal convictions.
  • The court agreed with The Sun’s argument that the format of each episode resulted in the personal background of the contestants, or their ‘back story,’ playing a substantial role.
  • The background of the Plaintiff’s father was in the public arena. The judge referred to an article in the Irish News newspaper prior to The Sun’s publication, that made reference to the Plaintiff being the son of “prominent County Tyrone Republican Brian Arthurs.”

Despite finding the Plaintiff had no reasonable expectation of privacy, the judge proceeded to carry out the balancing exercise between Articles 8 and 10, which he concluded came down in favour of The Sun. He held firstly, that it was the presentation of the material at issue and that he would not substitute his own views for those of The Sun’s Editor. Secondly, he referred to the Plaintiff’s decision to enter the public arena, by which he should have known that his personal background would be of interest.

Data Protection Act 1998

The Plaintiff’s application claimed there was a requirement “to block, cease or not begin” publication of his sensitive personal data as defined under Sections 2(f), (g) and (h) of the DPA. It was held that none of the information published about the Plaintiff could be considered “sensitive.” There were no references regarding his sexual life, the commission or allegation of any offence, or proceedings for an offence or alleged offence by the Plaintiff.

The Plaintiff also sought relief under Section 10(1) on the grounds that the publishing of personal data is likely to cause substantial damage or distress to him or another, and that this damage or distress is unwarranted.

The judge found that no personal data about the Plaintiff had been published other than he has a father who has criminal convictions. Further, no information was produced to show any damage to the Plaintiff, and the judge repeated his finding that the Plaintiff had put himself into the public arena in circumstances where his personal background was clearly an important feature.

Court of Appeal judgment

The Plaintiff appealed the High Court judgment on the ground that the court should have held the published information constituted his personal or sensitive personal data. He argued that the processing of this data was in breach of the DPA, as The Sun failed to meet the requirements of Section 4 and Schedules 1-3, as well as the Section 32 journalism exemption. The Plaintiff also appealed in respect of his claim for misuse of private information, arguing that the judge failed to apply the relevant test correctly.

The Northern Ireland Court of Appeal heard the case on 8 November 2017. The appeal proceeded only in relation to the application for interim relief grounded on a breach of privacy. The Plaintiff elected to leave the data protection issue to any forthcoming substantive trial, as the Court levelled criticism towards the letter relied upon by the Plaintiff for the requisite notice under Section 10 of the DPA. Whilst the Plaintiff pointed to the letter before action as amounting to such notice, the Court did not entertain this, not least because it made no reference whatsoever to the DPA.

Deeny LJ, delivering the judgment of the Court, held that the appropriate test was that no injunctive relief should be granted restraining publication before trial unless the Plaintiff could establish “that he had a reasonable expectation of privacy regarding the association of his father’s convictions with himself as his son.” [43]

In light of the facts that made up the context of the trial judge’s decision, the Court held that the judge was entitled to conclude the Plaintiff had no reasonable expectation of privacy in the published information. The Court referred to the Plaintiff entering a competition expressly in the hope of appearing on national television. Therefore while not a household name in the entertainment or political fields, he had sought and obtained publicity of his own volition. Further, his father’s criminal convictions were in the public arena as was his relationship to the Plaintiff.

The Court concluded that the Plaintiff was correctly found to have failed at the first hurdle and that the second stage of the balancing exercise did not require consideration.

The reporting restriction and anonymity order were subsequently lifted by the court and the Plaintiff was ordered to pay the Defendant’s costs.

Comment

Whilst spent criminal convictions may attract a reasonable expectation of privacy, there is typically no such expectation in convictions which are unspent. The Northern Ireland courts considered this subject last year in the case of Callum Townsend v Google Inc. & Google UK Ltd ([2017] NIQB 81) where the Plaintiff was found to have no reasonable expectation of privacy regarding his unspent convictions relating to, among other things, fraud and breaches of multiple court orders.

In this case, the Court of Appeal found the Plaintiff had no reasonable expectation of privacy in respect of his father’s unspent criminal convictions. The Court did query whether matters would be different in circumstances where an individual who had not sought the public eye was linked to a family member’s unspent convictions (citing the example of a student being given an award for excellence). However, as this scenario was so far removed from the facts of the Plaintiff’s case, it did not explore this further.

Both judgments serve as a useful reminder that applications for injunctive relief should not be pursued lightly and that the courts will be slow to intervene against publishers where the presentation of facts are in issue rather than the facts themselves. As Burgess J made clear at first instance, “that is a matter in which my views should not be substituted for those of the editor of the defendant newspaper.”

Ciaran O’Shiel is an associate and Charlotte Turk is a solicitor in the media litigation team at A&L Goodbody, which acted for News Group Newspapers in this case.

 


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