Abstract
After a glut of Super Injunctions gagging newspapers, the tide may now be turning in favour of newspapers, says a media lawyer
July 30, 2012 quietly marked the end of a decade in which privacy law, unknown in this jurisdiction until it was introduced by the Human Rights Act in 1998, was increasingly used by people who had something to hide to gag the press. While the “chilling effect” of our libel laws has long been understood, in the last ten years, privacy injunctions — particularly so-called “Super Injunctions,” where even the existence of the Court Order could not be disclosed — increasingly became the weapon of choice, because, unlike in a libel case, there is no “publish and be damned” defence to a privacy claim. But 2011/2012 marked a profound turning-point in the fortunes of the press, with notable blows being struck for press freedom.
Since 2002, we have had more cases known only by their initials than there are letters in the alphabet. Having passed the Human Rights Act as required by Europe, Parliament then declined to provide any guidance on balancing the competing rights in Article 8 (the right to privacy) and Article 10 (the right to freedom of speech), with the result that it was left to the judiciary to work out the law on a case-by-case basis, having regard to their personal view of the merits of such cases as came before them, which in turn proceeded to act as precedents for those that followed.
Little by little, the definition of private material expanded over the decade. One of the most significant early cases was Naomi Campbell's claim against The Mirror, which exposed her as a drug addict attending NA, despite previous protestations that she never took drugs. The focus of the case was a photograph of Campbell leaving the meeting. The House of Lords decided that although it was taken in a public place, it was an invasion of her privacy, because publication might deter her from seeking medical help. They said that the content of the photo was key: as a model/celebrity, “no-one would be interested in what she looked like going out for a bottle of milk” — clear confirmation that celebrities were still fair game for the paparazzi while going about their normal business in public. But within weeks this was followed by the Princess Caroline of Monaco case, where the EU ruled that pictures of her going to the yacht club, or on a bicycle — surely the equivalent of buying a bottle of milk — were private. In subsequent cases, it was decided that even if something had been published before, it didn't follow that privacy in that material had been waived, and that events that could be witnessed in a public place by any passer-by could still be private. In the McKennitt case, Mr Justice Eady set out areas where a clear expectation of privacy would arise — basically anything to do with your sex life, health, money or home.
Next came the JK Rowling case, where even a baby, photographed on the street and totally unaware of what was going on, was said maybe to have a right of privacy. Finally, the court started to have regard to the sensitivities of non-parties, such as the claimant's spouse and children, who might be embarrassed or teased if an admittedly true story was published, and granted injunctions to gag them. On top of all this, came the Super Injunctions, where it was a contempt of court even to mention that an injunction, often made late at night and on no notice to the press, had been granted. Star Chamber had nothing on it.
Injunctions were interim decisions
The press was under attack. Claimant lawyers seized on each new decision to intimidate publishers into killing stories in preference to risking the huge costs of defending a legal case. But what many people did not appreciate was that the vast majority of the cases were only interim decisions, designed to “hold the ring”, pending a trial or a further hearing that then didn't happen. They were not final judgments. Even in the JK Rowling case, the Court of Appeal only said it was possible that a young child had a right to privacy — despite what the claimant lawyers claimed, they didn't find that he actually did have such a right. The case was remitted for trial, but settled before the question was ever decided. At an interim hearing, the court will almost always give priority to preserving the status quo until it has a chance to consider both sides, because once a secret is out, it can never be recovered. How the conflicting rights of privacy and freedom of speech would be balanced at the final reckoning remained to be seen.
The last 12 months have marked the beginning of the end of the rise and rise of Article 8. Responding to the outrage that the proliferation of Super Injunctions had caused, the Master of the Rolls published a report. In particular, he found that the practice of claimants who had obtained an injunction of circulating it to the press — effectively gagging all who received it whether or not they were parties to the case — and then doing nothing to bring the case to trial was an abuse, incompatible with “the public's right to know” that proceedings had been issued. Going forward, the Court would take control and fix hearings so that no injunction would be continued for any longer than strictly necessary.
Then, judgment in two trials, as distinct from applications for interim orders, was given. Both cases concerned disclosures about the claimants' sex lives, but both claimants lost — the first because the Court decided that the publisher's freedom of speech outweighed the claimant's privacy, and the second because the Court concluded that the claimant's behaviour meant that she had no reasonable expectation of privacy at all.
The Rio Ferdinand case looked like a typical kiss-and-tell. The Sunday Mirror published a story about the England footballer's relationship with former girlfriend Carly Storey. Ferdinand had met Storey when they were both 17 years old. They had dated, then split up, and then had resumed contact for a time. The last time they had met for sex was in 2005 but they had been “sex-texting” and calling between 2007 and early 2010. During this period, Ferdinand married and became a father and declared in an interview with the News of the World in January 2006 to be a reformed family man. “I've strayed in the past — but I'm going to be a family man now,” he was quoted as saying, although he continued to text Carly photos of his “private parts” and urged her to send him pictures of her.
After Ferdinand was appointed the captain of the England football team, the contact stopped abruptly. Carly felt she had been dumped — she claimed she had one short text from him the day after he was announced as captain, then the phone went dead. It was said that Ferdinand stopped only because he feared exposure having seen what had happened to John Terry, who had been sacked as England captain after the scandal following his own notoriously unsuccessful injunction application.
Fabio Capello had said: “I ask always that the captain is an example to the young, for the children, for the fans … a role model outside the game in life as well.” There was a public debate as to whether or not the England captain was indeed a role model, and what that meant. Ferdinand, presenting himself as a reformed character, had allowed himself to be held out as such.
Storey went to Max Clifford and, two months later, the article was published. She was paid £16,000.
On the basis of previous decisions, Ferdinand would have expected to win. The case concerned his sex life. There were the feelings of his family to consider. Storey was benefitting financially from selling the story. Where was the public interest in a kiss-and-tell?
No public lie which required exposure
The judge decided that, although in principle the information — about Ferdinand's sex life — was protected by Article 8, the Mirror Group's Article 10 rights should prevail. He noted that the PCC Code, to which the Court must have regard pursuant to 12(4) of the Human Rights Act, said that the public interest includes preventing the public from being misled by an action or statement of an individual or organisation.
Mirror Group said that Ferdinand had “projected an image of himself as a reformed character” and that this was demonstrably false. Ferdinand argued that no such “image” had been projected and that, in contrast to the Campbell case, there was no “public lie” which required exposure.
The judge decided that what Ferdinand had said to the News of the World, what he said in his autobiography, and in other articles about being a reformed family man were relevant, and that Ferdinand had projected an image of himself, which, while that image persisted, meant that there was a public interest in exposing that the image was false. The article “reasonably contributed” to a debate as to whether Ferdinand was suitable for the role of England captain, the judge ruled. Mirror Group's freedom of speech was more important than Ferdinand's privacy.
The second case was Trimingham v Associated Newspapers. Carina Trimingham had worked in the fields of journalism, communications and public relations for more than 20 years. In 2010, at the time of the general election, she was seconded from the Electoral Reform Society to work as press officer to Chris Huhne's election campaign. Huhne was at that time a member of the shadow cabinet and married. Following the general election in May 2010, Huhne kept his seat and became a member of the cabinet. One month later, it was discovered that Trimingham and Huhne had been having an affair and the Mail and The Mail on Sunday published articles about that. The articles disclosed information about Trimingham, including that she was in a civil partnership with a woman. Trimingham complained that the words constituted a misuse of private information because they referred to her as bisexual, talked about her relationships, quoted her private conversations and also that they attacked her dignity and autonomy, reducing her to a crude stereotype. Trimingham did not complain about the publication of the fact that she had been having an affair with Huhne.
Sexuality was not a privacy issue
Although sex lives fall clearly within the definition of private material, the judge said that Trimingham had no reasonable expectation of privacy in the fact she was bisexual. Trimingham had not only entered into a civil partnership in June 2007 — a public commitment —she was actually living with her civil partner when the affair started. Explaining she had deceived her civil partner was central to the story. She had previously been married to a man. The evidence was that she had had relationships with other men, and that those who knew her, knew of her sexuality. She had not attempted to keep it private. Statements that she wore Doc Marten boots and had a boyish, cropped, spiky haircut, disclosed no meaningful information which was not already disclosed by her known sexuality.
The allegation that she had once tried to get Deputy Lib Dem leader Simon Hughes interested in her (which she had denied) was information that, in another context and absent of an affair with Huhne, would have been private, but in the context of the story, it was not sufficiently serious to base a claim on.
Trimingham also complained that a photograph taken and reproduced from her Facebook page would only have been viewed by her friends. The judge described the pictures as “simple and flattering shots of her”, disclosing no significant information in which Trimingham had a reasonable expectation of privacy. Trimingham had failed even to make out a case that her Article 8 rights had been infringed.
Also in the same year, Gordon Ramsay's father in law, Christopher Hutcheson, failed in his attempt to conceal the existence of his second family; Jonathan Spelman, despite being a minor, failed to prevent publication of the fact he had taken banned steroids to speed up recovery from a rugby injury; and Princess Caroline — who had gone back to the European Court in respect of more photographs — failed in relation to the publication of a photograph of her skiing, when it was published in the context of an article about her father's health. The year also marked the end of the Ryan Giggs debacle.
On July 30, Mr Justice Tugendhat quietly discharged injunctions previously granted in seven separate privacy cases. As far as we can tell, only two new injunctions have been granted in the last year, one of which was for only a week and neither of which concerned the media.
The judiciary routinely gets accused of being “anti-media” but the most senior judges have gone on record — at least with regard to the Reynolds defence — as saying that the standard of conduct required of the press “must be applied in a practical and flexible manner. It must have regard to practical realities”. The indications are that when they are given an opportunity to do so, the Courts intend to take the same approach to Article 8 claims. While the right to respect for family life is something to which the press must now always have regard, the use of Article 8 as the gag of choice for people who want to prevent an uncomfortable truth being published is probably over.