Peter A Clarke

The UK High Court in AMC & KLJ v News Group Newspapers Ltd [2015] EWHC 2361, per Laing J, granted an injunction in relation to a proposed story about an infidelity of a UK former sportsman.

FACTS

On the evening of Friday 31 July 2015 the solicitor for the Applicants approached the Court wishing to make an urgent application for an injunction to restrain publication in a newspaper of material relating to the first Applicant (‘A1’). There was a telephone hearing on the afternoon of Saturday 1 August and after argument the Court granted the relief sought [1] – [2].

The Applicant, A1, is described, at [6], as:

a prominent and successful professional sportsman, who has, from time to time held positions of responsibility in his sport. He appears in advertisements for some products.

He is married to A2.  Prior to the marriage but while he was dating A2, he had a sexual relationship with X for a few months [7]. X now wishes to “..give her account in order to ‘put the record straight’ (as they say) [9].

DECISION

The Court considered the balancing of the rights under Article 8, privacy rights, and 10, right to free expression, of the Human Rights Act 1998.  In brief compass her Honour reviewed the broad approach taken by the Court being:

• the conflict requires an intense focus on the facts [10].
• neither right has precedence over the other [10].
• protections conferred by both article 8 and article 10 rights are defeasible. Interests which may defeat article 8 are the interest in protecting the rights and freedoms of others such as the qualified freedom conferred by article 10. The exercise article 10 freedoms ‘carries with it duties and responsibilities,[and] may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society …for the protection of the reputation or rights of others [or] for preventing the disclosure of information received in confidence…’[10].
• neither ‘side’ has a burden to discharge. Each has to justify a desired interference with the other’s Convention right or freedom [11].
• the court has to balance what protection, or weight should be given to the article 8 and 10 rights/freedom of each side.  On the facts of this case the relative importance of the two rights which are in play have to be examined closely[11].
• the court may not grant injunctive relief unless an applicant is ‘likely to establish that publication will not be allowed’. In general, the court should be satisfied the applicant will be more likely than not to, succeed at trial. A lesser degree of likelihood may suffice if the court is granting an injunction where it will only last for a short period, pending more detailed argument [12]
• the court must take into account the importance of the ‘right’ of freedom of expression, and the extent to which the material has become, or is about to become available to the public, any relevant privacy code and the extent to which it is, or would be in the public interest for the material to be published. That means the extent to which the material contributes to a debate of general interest [13].

The court started with a consideration of the Article 8 rights of A1 and A2.  In considering the relevant factors about whether A1 had a reasonable expectation of privacy the court stated:

• material about a person’s sexual life, whether it relates to a transient, or to a more durable relationship, is in principle protected by article 8 [15].
• the relationship with X was not a one-night stand, or an encounter with a prostitute. It had some durability and emotional attachment [16]
• from the outset, both X and A1 conducted the relationship clandestinely. They kept an eye out for CCTV cameras, for example. X has kept her counsel about this relationship for some time, and was discreet about when it was going on, even after she discovered that A1 had a long-term girlfriend, and even after the relationship ended. [17]
• the Respondent’s submitted that X was ‘not a private person’, displaying in public aspects of her life which others might regard as normally private was rejected.  The court found that  X did not see this relationship, or treat it, as public property at the time, and for some time afterwards. She was discreet about it, valued it and didn’t see see it, or use it, as part of her public career [18].
• while 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 being a public figure of and by itself does not makes the entire history of that person’s sex life public property. This issue does not undermining the reasonable expectation of privacy about this relationship which A1 had [19].
• A1 is a role model for sportsmen and aspiring sportsmen and:

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. In my judgment, a discreetly conducted affair, before he was married, some years ago, is not obviously inconsistent with his public role, even if its conduct involved the breach of team rules, [20]

• the publication of the proposed story will undoubtedly interfere with A1’s reasonable expectation of privacy, his article 8 rights, and  A2’s article 8 rights [20].

In relation to Article 8.2 justification the court stated while it is necessary to take into account the importance of the freedom of the press, that freedom is not, self-evidently, of and by itself, enough to “..trump the As’ article 8 rights” [22]. Newspaper editors should be given some leeway in judging where the public interest lies. Just because the public may have a prurient interest in being told something does not mean that it is in the public interest for them to be told it. The public interest here is a contribution to a debate in the general interest [23].

The court considered the Respondent’s public interest argument in detail being:

• that A1, a role model is, in reality, a hypocrite.  The court found that even if he did break any rules there was no public interest in revealing this now, some years after the event. Such stories may generate some interest at the time of the infraction.  There is no evidence to suggest that there is any current debate about past infractions by sportsmen of rules of this sort. The mere fact he broke rules in the past shows that he, is or should be publicly exposed as, a hypocrite [24].
• in having the relationship, A1 deceived both A2, and his then manager. The deceits were not denied. His deceit of A2 was a private matter between them. The court found there was no public interest in the publication of the fact that some years ago, A1 deceived his then team manager in the way that X said he did. An isolated past deception of a former team manager does not mean that A1 is a hypocrite, or there is a public interest in exposing him as one [25].
• A1’s success as a sportsman gave him the opportunity to earn money by appearing in advertisements on an image as a ‘clean-living family man’. The story is therefore a valuable antidote to this false impression. The court found this a “..strained submission..” finding there was nothing misleading or untruthful about any of the material [26].
• the public interest extends to the exposure of conduct which is socially harmful. Her Honour pithily dealt with this submission by stating, at [27], that:

“.. 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. “

and

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 co-erced. 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. 

 The Court found thatthe grant of an injunction restraining publication for a short time was a proportionate means of achieving a legitimate aim [30].

In response to the argument the story was already in the public domain the court compared the material which is already in the public domain, found in witness statements, with the proposed story. Her Honour found there was a significant gap between what is now public and what would become public if the story were published. In that context it was proportionate to restrain publication. The fact that some material in the public domain is not great enough to mean that damages would be an adequate remedy [31].

ISSUE

It is a very useful decision as a disciplined analysis of the competing rights.  Of particular note in this decision is her Honour’s consideration of the argument that public figures, such as sportsmen are to be held out as “role models”.  The court regarded the exposure sexual activities between two consenting adults as not being justified as being in the public interest.

This decision has, predictably, aroused the ire of the UK press with articles such as It’s time privacy-obsessed judges put freedom of expression over ‘human rights’ of wealthy celebrities.  Articles of a similar vein find their way into the Australian Press, notably the Australian, when there is a hint of privacy related action brought in equity or proposed by statute.

It is a very well reasoned judgment.  Even though it applies UK law the analysis of the court on the respondent’s submissions about role models and public interest may be of use in the Australian context.