19 September 2019 - Podcast
As Fleet Street's annual silly season sets in, thank goodness for the common sense of Mrs. Justice Laing. In a short interim privacy injunction ruling, the High Court judge has ruled that infidelity doesn't necessarily equate to hypocrisy sufficient to justify the former lover spilling the private beans. We've waited a while for a privacy injunction. There had been a spate of them. But the media resented being stopped from educating its scandal-craving readers as to the antics of men (and women, although not so much) behaving badly; it beat its collective chest over the unfairness of being injuncted from its Jackanory story-telling while tweeters and social media were rife with speculation; and it wailed about this outrageous chilling of free speech. As a punter, I don't feel better educated as a result of learning about the private affairs of the stars of field, stage and screen. As a pundit, I'd argue that any warming of the so-called speech-chilling hasn't led to greater public interest journalism. And as a privacy lawyer, I'm alarmed that lives and livelihoods are damaged where every element of their private existence is open to scrutiny simply because at one point they have – like many of us no doubt – made a bad choice or a mistake. So as a punter, a pundit and a privacy lawyer, I like this judgment. But what's it all about? A1 had a long-term girlfriend, A2. They are now married. Two years ago and before the wedding day, A1 also had another girlfriend, X. X now wants to tell her story; NGN wants to tell her story. A1 and A2 don't want her to, and who can blame them — it's private for A1, and embarrassing for both of them. We wouldn't want the ins and outs of our extra marital/relationship affairs plastered across the papers, so what on earth is the public interest in disclosing, without their consent, private matters that will be deeply upsetting and embarrassing to the couple? What? Well, there is, of course, one more fundamental element to this tale. A1 is a “prominent and successful sportsman, who has from time to time held positions of responsibility in his sport. He promotes products in advertisements; while X has “chosen to display in public aspects of her life which others might regard as normally private. And that indeed is the rub. We are not talking about the private shenanigans of ordinary people – which frankly no-one wants to read about – but the private antics of a sports personality and a celeb, which everyone (well, nearly) wants to read about. It's not drugs, or knife-crime, or obesity that is the biggest threat to our society; it's the inexplicable and irrepressible addiction to a toxic combination of celebrity and curtain-twitching that will be our downfall. To this educated audience, I don't need to rehearse the law, but a gentle summary reminder. Article 8 of the Human Rights Act guarantees the right to respect for private life (in other words, don't disclose what I get up to in bed). Article 10 guarantees the right to free speech (there's a public interest in contributing to a debate of general interest in what I get up to in bed, with whom, how often, in what positions and how successfully…) Neither right takes precedence. The two have to be balanced against each other. Where an injunction is sought pre-publication, the judge must be satisfied that the applicants are ‘likely to establish that publication will not be allowed' and the later substantive hearing. So, to tell or not to tell, that is the question. Here, despite the extra-curricular relationship not being long term, article 8 was engaged concluded the judge: “I accept that 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, as a person's sex life is a very important aspect of the interests protected by article 8”. Both parties had conducted the affair privately; they didn't discuss it; they looked out for CCTV cameras (with such a plethora of them in the UK, any philanderer would be advised that this is NOT the best country in which to seek to conduct an affair); and were discreet about it. Indeed, despite suggestions that she is ‘a shallow, one-dimensional, cut-out character, who broadcasts, and is known the broadcast, her entire private life' (10 years ago, this might have identified her in an anonymous judgment, but perhaps there are sufficient similar characters invading our TV screens and tabloids today not to do so…?). X conducted the affair discreetly, she ‘valued it', and did not apparently, see it ‘as part of her public career'. On any account, therefore, there is a big tick in the ‘reasonable expectation of privacy' box. And what of the right to unlock that privacy box and spill the contents in the paper? One must admire NGN's attempts to put the most persuasive case, but X's purported need to ‘set the record straight' because she was ‘hurt by A1's ‘hypocrisy about the whole situation' was seen by the judge as ‘reasoning after the event', especially in light of the fact she had kept in touch with A1 after the end of the affair. But having another pop at the hypocrisy argument, NGN argued that there was an important public interest in exposing A1 as a hypocrite because:
- He broke his professional rules on occasion by having a woman (X) in his hotel room with him. The judge didn't buy that, finding there was no live public debate of general interest on this subject, and certainly not one that required rehashing of this some two years on.
- The affair by definition meant that A1 was deceiving his partner and his manager. While the first deceit was a ‘private matter between them' with no public interest reason for disclosure, ‘I was shown no material that suggested that there is a debate in the general interest' about the second, said the judge, and ‘Nor do I consider that an isolated past deception of a former team manager means that A1 is a hypocrite, or that there is a public interest in exposing him as one'.
- As A1 had used his ‘clean-living family man' image to earn money by appearing in advertisements, this story is ‘a valuable antidote to this false image'. But the judge was unable to extrapolate from the fact that he had said, in an interview, that ‘he liked to eat at home with his girlfriend', that this evidenced such a heinous degree of hypocrisy that he deserved his private life to be exposed as food for thought over middle England's Sunday morning breakfast table.
Those of us on the side of privacy protection will like the judge's thinking. Those more used to banging the publish-and-be-damned drum, are less happy, hackles rising over the apparent loss of the much-trotted out argument that a celebrity behaving badly deserves to be ‘done over' because he is a role model. A1, said the judge, ‘is a role model for sportsmen and aspiring sportsman. Any scrutiny of his conduct away from sport ought to bear a reasonable relationship with the fact that he is a sportsman… He is not a role model for cooks, or for moral philosophers.' The judge was firm in this respect: ‘I do not consider that being a public figure of and by itself makes the entire history of that person's sex life public property.' Hoorah for good sense. So if you're a cook and you privately pee in the soup, that should probably be punished and published; if you're a moral philosopher who immorally betrays your colleagues, same thing. And for those who will argue that disobeying club rules meant that this individual should therefore be hung out to dry as a result, let's consider the judge's proportionate response; she could not ‘consider that the mere fact that he broke the rules in the past [and she could not assess on the evidence if he had or had not] shows that he, is or possibly should be publicly exposed as, a hypocrite'. In Mrs. Justice Laing's view, ‘a discreetly conducted affair, before he was married, some years ago, is not obviously inconsistent with his public role'; as for the wife and the girlfriend, the affair ‘must have hurt the two women concerned when they found out about it', but ‘it is not for me to moralise about such conduct… It caused private pain; but no-one was corrupted or coerced. The conduct had no ramifications beyond the three people who were affected by it. It did not affect society in any way.‘ Few of us in a loving relationship would condone an affair; some of us might understand it, even be prepared to accept it; but for some time, our newspapers have been able to rely on the fact that the public – and the courts acting on their behalf – would be so outraged by any such conduct falling below high moral standards, that they had a ‘get out of jail free' card when it came to broadcasting it to the world. Sports personalities, actors, rock stars, celebrities of every denomination sell newspapers; the more outrageous their antics, the more papers are sold. And nothing sells papers better than a story involving sex; luckily, our celebs are apparently jumping in and out of bed with each other all the time. The media loves that behaviour because where the hero of their story can be fitted into the easily identifiable strip of role model, he can be stripped of his privacy as a result. But perhaps no more, given the judgment of Mrs. Justice Laing. While the readers of The Sun, the Daily Mail, The Mirror et al might be outraged (interested, titillated, perhaps even touched with jealousy) about an affair such as this, it does not evidence a fatal social-harm rocking the very foundations of our society such that it must be punished publicly by putting the culprit in the metaphorical stocks of a newspapers headlines and having him pelted with the rotten cabbages of commentary. In other words, while we may all reach for the stars, it is OK for us all to have feet of clay.