High Court grants privacy injunction to professional sportsman and his wife: AMC and KLJ v News Group Newspapers [2015] EWHC 2361 (QB)

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

On 1 August 2015, the High Court granted the applicants (i) an interim injunction to restrain the respondent's publication of material relating to the first applicant's sexual relationship with a third party, X; and (ii) a corresponding anonymity order.

Facts

The first applicant (A1) is a "prominent and successful professional sportsman" who has held positions of responsibility in his sport and "appears in advertisements for some products". The second applicant (A2) is his wife. X was described by the court as someone who "has chosen to display in public aspects of her life which others might regard as normally private".

The respondent proposed to publish an article relating to a previous sexual relationship between A1 and X, which had been conducted by A1 when he was in a long-term relationship with A2 but not married to her. The relationship between A1 and X "was some years ago and lasted a few months". It was conducted "clandestinely" between the parties and it was alleged by X, and not denied by A1, that during their relationship they met at times when he should have been preparing for sporting events.

The proposed article was said to be an account of the relationship from X to "put the record straight" and the applicants applied to the High Court to prevent its publication.

Judgment – balancing exercise

In dealing with the application, Mrs Justice Elisabeth Laing DBE carried out a balancing exercise between the article 8 rights of the applicants and the article 10 rights of the respondent and X.

The judge first considered the applicants' article 8 rights, holding that both A1 and A2's privacy rights were in play and would be interfered with by publication of the proposed article.

The judge held that a person's sexual life was in principle protected by article 8 and considered that "being a public figure of and by itself [does not] make the entire history of that person's sex life personal property". Mrs Justice Laing's analysis as to A1's role as a "role model" is particularly interesting, and at paragraph 20 of her judgment, she stated:

“[A1] 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. 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”.

Having established the nature of the applicants' privacy rights, the judge went onto consider whether interference with those rights was justified by the exercise of the respondent's and X's article 10 rights.

In relation to its article 10 rights, the respondent put forward a number of arguments as to why exposing A1's affair would be in the public interest. These arguments centred around the fact that the proposed article would show "that A1, who is and should act, as a role model is, in reality, a hypocrite". In this regard, the respondent argued that A1's relationship with X had involved breaking team rules and that he had deceived both A2 and his manager. The respondent also argued that A1's appearance in advertisements was built on his image as a "clean-living family man", which was a false impression to give to the public. The judge rejected the wider ‘role model’ argument (above) and did not consider any of these grounds be sufficient to justify the proposed interference with the applicants' article 8 rights.

The judge also rejected the submission that there was public interest in the exposure of A1's conduct on the basis that it was "socially harmful", stating that an affair such as this "has no ramifications beyond the three people who were affected" and "did not affect society in any way". She highlighted the risks of this argument being used to morally condone the private behaviour of individuals and concluded: "[I]n 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".

Accordingly, Mrs Justice Laing decided that the grant of an order restraining publication of the material for a short period was a proportionate means of achieving a legitimate aim. At the return date hearing on 5 August 2015, Mr Justice Dingemans subsequently recorded that the parties had agreed orders containing undertakings and directions to trial, where these matters will be argued again.

Comment

The judgment provides an interesting analysis as to the privacy rights of individuals in the public eye, which is likely to be welcomed by claimant-focused practitioners due to the judge’s application of the test for legitimate intrusion into the private life of such a figure.

The judge made clear that any scrutiny of A1's conduct away from sport "ought to bear a reasonable relationship with the fact that he is a sportsman". However, even conduct which allegedly involved breach of team rules some years ago was not deemed to be open to public scrutiny or inconsistent with A1's public role as a role model for sportsmen and aspiring sportsmen.

In contrast, the courts have previously held that individuals involved in professional sports cannot restrain publication of similar information. For example, the former England football manager Steve McClaren was refused an injunction preventing publication of information regarding his extra-marital affair largely on the basis of his status as a “prominent public figure” from whom “the public could reasonably expect a higher standard of conduct” (the McClaren decision was distinguished by Mrs Justice Laing on the basis that he (a) was married at the relevant time and (b) had previously sold a story to the press regarding a previous extra-marital relationship).

Similarly, following publication of the relevant information, former England football captain Rio Ferdinand’s breach of privacy action failed largely due to the fact that that he held “a position where higher standards could be rightly expected by the public” and had breached team rules in the conduct of his affair.

It will therefore be interesting to see which way the court decides this matter at trial.