Balancing the right to privacy and freedom of expression: What is the public interest in private affairs?

CTB v News Group Newspapers Limited [2011] EWHC 1232 (QB) (16 May 2011)

Summary

In this case, Eady J of the England and Wales High Court granted an injunction restraining disclosure of the identity of a footballer who had had an extramarital affair. In doing so, the judge first had to consider two competing rights in the European Convention of Human Rights: the right to respect for private and family life (art 8) and the right to freedom of expression (art 10). The judge undertook a balancing exercise to determine the relative importance of the two rights in the circumstances. Given the very personal nature of the information and the lack of any real public interest in disclosure, Eady J held that the right to privacy prevailed.

Facts

On 14 April 2011, an article appeared in The Sun newspaper containing an account of a sexual relationship between former UK Big Brother contestant Imogen Thomas and a high-profile footballer. While Thomas was identified in the article, the footballer remained unnamed.

During the afternoon of 14 April 2011, the footballer — referred to throughout the case as CTB — sought an interim injunction to prevent disclosure of his identity and further reporting of the story.

The material facts before the Court can be summarised as follows:

• CTB was a married man with a family.
• CTB stated that he had met with Thomas three times in 2010 (this was in stark contrast to The Sun’s article, which suggested that the two had been in a relationship that had lasted six months).
• CTB stated that he had met with Thomas a couple of times in 2011 before The Sun article was published. From the evidence, it appeared that Thomas had informed photographers and journalists about those meetings in advance. CTB claimed that at the meetings, Thomas asked him for money to stop her from selling her story to the media. Thomas denied this and also denied any involvement with The Sun article.

Decision

Eady J started by saying that in cases involving competing Convention rights, the Court’s function is “well known” and “well established” by judicial authority. These cases require the Court to carry out a “balancing exercise”. In particular, where the right to respect for private and family life (art 8) and the right to freedom of expression (art 10) are in conflict, the balancing exercise translates to a two-step process. First, the Court looks to the subject-matter of a proposed publication and asks whether it gives rise to a “reasonable expectation of privacy” on the part of the claimant resisting publication. Second, the Court asks whether the claimant’s art 8 right to privacy ought to be “overridden by any countervailing considerations”. Those considerations include the art 10 freedom of expression right of all stakeholders (eg, journalists), as well as the public interest and “the right of citizens generally to receive information”.

On the first limb, Eady J found in favour of CTB. The judge held that information about “conduct of an intimate and sexual nature” was well within the ambit of CTB’s reasonable expectation of privacy. This was especially so in the circumstances of this case, where there was no indication that either CTB or Thomas intended to conduct their relationship openly and in public.

Eady J also found in favour of CTB on the second limb. The judge held that there was little “legitimate public interest in the revelation” of the information of the relationship between CTB and Thomas. In the opinion of the Court, this information was quite clearly not of a kind that would “contribute to ‘a debate of general interest’” or that would “achieve some legitimate social purpose” such as preventing or detecting criminal acts. Also, there was no risk of the “public being seriously misled” if the information was not revealed to them.

Lastly, Eady J considered the applicability of the so-called “public domain proviso”. The proviso applies when information which would otherwise be protected by the right to privacy is previously released in the public domain. Such information loses its confidentiality and cannot be protected by the Court. Eady J went on to draw an important distinction between, on the one hand, secrets of the state, and, on the other, secrets from a person’s private life. With respect to the latter, the judge explained that “[i]t is more difficult to establish that confidentiality or a reasonable expectation of privacy has gone for all purposes … by reason of it having come to the attention of only certain categories of readers”. Eady J was not satisfied that publication of some of the details of the relationship in a single newspaper had extinguished all of the confidentiality in that information or that the publication had removed CTB’s reasonable expectation of privacy. As a result, Eady J granted the injunction.

There have been some interesting developments to this case that are worth mentioning. In the days following the judgment, CTB was named by a substantial number of users of the social media site Twitter. Also, a Member of Parliament in the UK relied on parliamentary privilege to name CTB in the House of Commons. Despite this, the Court refused to set aside its injunction. The Court, in two further judgments, stated that the law of privacy is concerned with intrusion just as much as it is with secrets. In the circumstances of the case, although the injunction proved ineffective at protecting the secrecy of CTB’s identity, it remained effective at preventing further intrusion — such as harassment and taunting by the media — into CTB’s private life.

Relevance to the Victorian Charter

The case provides a useful balancing framework that can be applied to situations where a conflict arises between two rights in the Victorian Charter, in particular, a conflict between the right to privacy and reputation (s 13) and the right to freedom of expression (s 15).

The emphasis of Eady J was that there is no hierarchy of rights under the Convention whereby one right automatically takes precedence over another. The judge explained that what is required when an apparent conflict between two rights emerges is an “intense focus” on the prevailing circumstances, with a view to correctly balancing the relative importance of one right over another. There is no reason why a similar approach should not be extended to cases of conflict of rights under the Charter.

The decision is at http://www.bailii.org/ew/cases/EWHC/QB/2011/1232.html.

Martin Ivanovski is a Law Graduate with the Human Rights Law Group at Mallesons Stephen Jaques.