'With freedom comes responsibilities'

Martin Cruddace
The Guardian, Monday March 18 2002

Just as newspaper editors and lawyers were administering the last rites to "kiss and tell", along comes the court of appeal and, in particular Lord Woolf, the lord chief justice, to give it the kiss of life. Indeed one could say that "kiss and tells" have now been given a judicial clean bill of health.

Lord Woolf's judgment in A v B and C is perhaps the most significant judgment for the tabloid press for a generation. So what is it about and what does it mean?

The facts of the case can be fairly easily summarised: A is a married professional footballer with two children. Not too cryptically, he is described as having a "responsible" position in the club. He liked to take fellow members of his team to bars (including lap-dancing clubs) "with the object of improving team spirit" (of course). There he met and had an adulterous relationship with D (not a party to the proceedings). He then met another woman (C) and began a relationship with her. Both relationships ended and the Sunday People (B) wanted to run two articles which, not surprisingly, were concerned with "salacious description of sexual activity".

The footballer was successful in persuading a judge (Mr Justice Jack) that publication should be prevented by way of an injunction on the grounds that the law affords protection of confidentiality to all sexual relations (cue Sunday tabloid editors all starting on Prozac). Further, the judge held that the facts of the relationship were part of the private life of the footballer and that there was no "public interest" in their disclosure - after all it is not as though the footballer, especially the journeyman that he is, is a public figure holding an office of some kind.

Well, poor Mr Justice Jack has had his judgment booted out of the arena by the court of appeal and Lord Justice Woolf in particular.

The most important aspects of the judgment of the court of appeal appear to me to be:

1) The definition of what constitutes a public figure is now far wider than any editor could have guessed or hoped for. Indeed it is probably wider than even the press complaints commission would understand it to be.

Lord Justice Woolf quoted, with apparent approval, paragraph 7 of the Council of Europe's resolution 1165 of 1998, in which public figures are defined as "all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain".

It is also worth quoting him when he says: "The public figure may be a role model whose conduct will well be emulated by others. He may set the fashion." So look out, actors, singers, sports stars and other "personalities".

2) A newspaper will be allowed to comment on or disclose conduct of a public figure which in the case of a private individual would not be appropriate.

3) The definition of what is in the public interest has been considerably widened (indeed it now goes further than the press complaints commission's own definition). In many cases (such as this one) Lord Justice Woolf says that:"It would be overstating the position to say there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information."

Astonishingly, he also says that courts should take into account that if newspapers do not publish information in which the public are interested, fewer newspapers will be sold, which will not be in the public interest.

4) The more public figures voluntarily put their private lives into the public domain, the "less ground [they have] to object to the intrusion".

5) There is no need to analyse the path of a new tort of privacy because the tort of confidence is now wide enough to cover all those parts of an individual's private life that need protecting.

6) Adulterous relationships (such as the ones engaged in by A) constitute conduct that is on the outer limits of what needs protection.

So there we have it, Neil Wallis, editor of the Sunday People, is like a dog with two tails and will, not unnaturally, think that it is all systems go for kiss and tells - well, sorry, but not quite. While it is true that Lord Justice Woolf also gave great weight to the right of expression of the women involved, the crucial aspect of this case is the adulterous behaviour. Tabloids rarely get genuinely good kiss and tells with individuals who have had sexual relationships with married "public figures"; frequently they can be simply a jilted girlfriend or boyfriend. Depending on the length and character of the relationship, the newspaper will still be under threat of an injunction or an action for damages.

Further, Lord Woolf makes the obvious point that conduct being carried out in private does not necessarily characterise it as conduct that is capable of protection. Similarly therefore, conduct being carried out in public does not mean it can, ipso facto, be plastered across pages 1, 4 and 5.

Private conduct between two people on a secluded (but public) beach may now be protected from publication (or give rise to a damages claim after publication).

Further, certain photographs of public figures, taken in private moments (such as that of Kate Winslet on page 3 of the News of the World earlier this month) and published for the sake of it (usually because the newspaper has nothing else for page 3) may also provoke litigation. Consequently newspaper editors should view this judgment as an amber rather than green light. After all, with freedoms (which Lord Woolf's judgment undoubtedly gives) comes responsibilities.

· Martin Cruddace was head of the legal department of Mirror Group Newspapers until January