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- The Guardian, Monday March 18 2002
Last week, in the prosaically titled case of A v B plc and another, the court of appeal discharged an order (subject to the House of Lords taking a different view), whose effect was to restrain a tabloid newspaper from publishing details of a married footballer's affairs with a lap dancer and a nursery school teacher. The women concerned, having kissed, wished to tell all. The footballer, whose wife and children remained in ignorance, argued that the fact and details of these relationships were private and should be protected from disclosure by the law of confidence.
The outcome of the appeal is not surprising. The law has long protected marital confidences and more recently extended that protection to the disclosure of intimate details within long-term relationships, including same-sex relationships. However the liaisons in this case were not apparently distinguished for commitment, discretion or moral scruple. On the women's account the footballer had imposed no requirement of privacy. The law is rightly wary of prior restraint, especially where the party applying is seeking to keep his own misconduct secret.
Of far greater interest is the court of appeal's guidance as to how the delicate line should be drawn in the future between the individual's right to privacy and the competing right to freedom of expression.
Traditionally the courts have drawn a distinction between that which is merely of interest to the public and that which it is in the public interest to publish. So information within the latter category may afford a public interest defence to a claim in libel (false and damaging information) or breach of confidence (true information ordinarily regarded as private), whereas the former would not.
In this judgment the court of appeal blurs the boundaries between the two concepts. The argument is a novel one. It runs on these lines - if newspapers did not publish what the public is interested in, there would be fewer newspapers and that would not serve the public interest; and, since sections of the public would be interested in the footballer, they would doubtless be interested to read of his misconduct.
By this route the publication of salacious sexual details are awarded a public interest rating, simply because a degree of prurient interest is present in most of us and indulging that interest will help sell the newspaper. While there is a clear public interest in a dynamic and diverse press, it is difficult to see why a newspaper's commercial interests could ever justify the publication of particular information otherwise deserving of protection.
It is an irony that in Bruce Grobbelaar's libel case against the Sun, the court of appeal rejected a public interest defence, in part because the articles, and their presentation and timing, were said to be designed to serve the newspaper's private commercial interests rather than the public interest. Yet in confidence and privacy, the contrary now appears to be the position. This inconsistency is unsatisfactory and illogical. There is much force in the view that in relation to both libel and confidence, the court should have regard to the general importance of freedom of expression as a factor, but that the newspaper's private commercial interest in publishing the particular story should be treated as entirely neutral on where the public interest lies.
The court of appeal went on to observe that footballers were role models for young people and such undesirable behaviour could set an unfortunate example. This may surprise the nation's youth as well as viewers of Footballers' Wives. One doubts that admirers of Sir Stanley Matthews or George Best behaved any better or worse on account of the restraint or excess of their heroes' off-field behaviour.
The point raises deeper issues about the nature of celebrity and the price to be paid for it. A footballer who sets himself up as a paragon or volunteers details of his sexual life may find his right to privacy correspondingly reduced. But suppose he is only a public figure because he plays football well. It seems fundamentally illiberal that an individual's rights should be curtailed, merely because his or her gifts engage the public. Are authors and concert pianists role models as to their private behaviour, and how public a figure do you have to be? In argument the question was raised as to whether a discreet judge with an indiscreet mistress would be entitled to protection. Newspaper reporters may likewise be interested to know where they stand.
These hypothetical questions are not facetious. Where basic human rights are in play, the law should be clear and citizens should know what actions are likely to compromise their rights and to what extent.
It is of interest that in America the public interest defence to libel claims is dictated by whether the party suing is a "public figure". Predictably the definition of public figure has widely varied from state to state and is the subject of increasingly adverse criticism by American commentators. Here the courts - rightly in my view - focus instead on the information in question and ask whether it is in the public interest to publish it, taking the status of the complainant into account, insofar as it is relevant. This approach has flexibility and starts from the premise that all citizens are equal before the law.
The judgment does not limit itself to the role model argument. The mere fact that the complainant as a footballer was a figure in whom a section of the public and the media would be interested is said to be material to the scope of his right to privacy. Interest to the media and the public in this diluted sense may not be created by the complainant at all. It may arise from force of circumstance or be created by others talking to the media without his or her consent. Moreover in reality the sexual behaviour of an anonymous member of the public is unlikely to galvanise the potential purchasers of tabloid newspapers. The subject will almost always by definition be someone in whom the public are interested. Otherwise the editor would lose his job.
It would be wrong to interpret this judgment too literally, since it rightly makes clear that cases of this kind will always be fact-sensitive. None the less these examples illustrate the difficul ties, if mere media or public interest is treated as a ground for curtailing the right to privacy.
A related observation is that those who court public attention have less ground to object to intrusion. Certainly publicity- and image-seekers have to take the rough with the smooth, insofar as they (rather than others) choose to open their otherwise private world to view. However it is not obvious why talking openly about one discrete aspect of one's private life should erode the right to keep private other unrelated aspects.
There is also a tension here. If courting publicity generally erodes the right to privacy, may that not deter open communication with the press by those in whom the public may be interested and so reduce newspaper sales and put newspapers at risk? What is sauce for the goose...
Other aspects of the judgment are to be welcomed. Legal precedent should have a very limited role in such cases - the more so at the injunction stage. If information is not obviously private, it is most unlikely to deserve protection. Borderline cases are unlikely to be saved by different decisions on different facts. A telling point is also made as to the position of the footballer's wife and children. The footballer predictably raised damage to them as a significant ground for the injunction. The court responded that there was no basis for assuming that his wife's interests would best be served by keeping her in ignorance.
A point of wider significance is that this public debate is taking place at all. In this, as in other fields, the dynamic effects of the Human Rights Act are plain to see. The change from a legal landscape which left the individual and the state free to do anything which the law did not prohibit to a new world based on the obligation of public authorities, including the courts, to have regard to competing rights has energised discussion.
It is lastly worth remembering the origin of the European Convention and the evils whose repetition it was designed to prevent. Some 70 years ago at a press briefing in Berlin, the Propaganda Ministry directed that referring to Greta Garbo was acceptable, but that the name and works of Thomas Mann must be consigned to oblivion. We have moved on.
· Andrew Caldecott QC is a barrister specialising in media law
