Case Summary and Outcome

The High Court of Justice, Queen’s Bench Division, held that the interference with the Article 8 rights of the applicants is not a proportionate means of achieving a legitimate aim. The judge therefore granted an injunction upon the publication of the newspaper, including at order for anonymity.

Facts

The first applicant is a well-known and successful professional sportsman who is married to the second applicant. Some years ago, before the applicants were married, the first applicant had a relationship with another woman, X. On July 31, 2015, a Queen’s Bench Division clerk was approached by the solicitor on behalf of the applicants who wished to make an urgent application for an injunction in order to restrain a newspaper publication, publication in a newspaper, which was to be recounted by X, about a sexual relationship between herself and the first applicant. The applicants wished to the restrain the details of the affair that the first applicant had been engaged in before his marriage.

Decision Overview

The High Court of Justice, Queen’s Bench Division, ruled on this matter and Justice Laing wrote the opinion of the Court. At issue in this case were the rights associated with Article 8 (privacy) and 10 (freedom of expression) of the European Convention on Human Rights (ECHR).

The Justice explained that the conflict between the two rights requires an intense focus on the facts and acknowledgement that neither right has abrogates the other. Precedent indicates that in order to rely on Article 8, in support of an injunction restricting publication, the applicant must prove that he had reasonable expectation of privacy. In reaching her decision thus, Justice Laing first explored whether the first applicant had such reasonable expectation of privacy. Despite some suggestion in previous cases, indicating that a transient relationship is entitled to less protection than a permanent relationship, the Justice accepted that content 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.

A further factor taken into consideration by the Court was whether X was a ‘private person’. The evidence of X herself was that, from the outset, both of them (the first applicant and herself) conducted their relationship clandestinely. From X’s evidence it is clear that it was her understanding that first applicant did not want to get ‘caught out’, and that both needed to be careful to ensure that this did not happen. The Court also took into account the fact that successful sportsmen necessarily have a prominent position in public life, and due to that, relinquish control over aspects of their private life. Having acknowledged that, however, she refused to accept the assumption that being a public figure makes the entire history of that person’s sex life public property.  It was argued that the first applicant’s position of responsibility in his sport, and the fact that he is a prominent sportsman, rendered him a ‘role model’. He was, therefore expected to have his conduct, on and off the sports field, be examined systematically and publicly. The Court disagreed with this argument, stating that any scrutiny of the first applicant’s conduct away from sport ought to bear a reasonable relationship with the fact that he is a sportsman, as his position does not turn him into an example in every sphere of his existence.

Having examined the aforementioned, the Court brought Article 8(2) into play, scrutinizing the justification behind the interference of the applicants’ privacy. The Court relief on three main factors. First, the Court analyzed the public interest argument, concluding that there was in fact no public interest in revealing whether the first applicant broke rules on a few occasions in having a woman with him when he was staying at a hotel. Such stories may generate some interest at the time of the infraction, not so many years after the event. Second, the Court analyzed the argument that the first applicant had deceived both his manager and the second applicant. The Court concluded that there was no material that suggested that there is debate in the general interest about an isolated past deception, or that there is a public interest in exposing the first applicant as a hypocrite. Last, the Court went on to reject the strained submission that the material relied on in this context, by R, showed that the first applicant had misled the public by creating and projecting a false image of himself.

The Court doubted that it was equipped to act as an arbiter of what conduct was socially harmful to the extent that it should be publicly exposed and concluded that the conduct of the first applicant and X had no consequences beyond the three people affected by it. It did not affect society in any way and could not, therefore, be branded as ‘socially harmful’. Accordingly, the Court found that the first applicant did indeed have a reasonable expectation of privacy and that publication of the story would undoubtedly interfere with that privacy, and thus his Article 8 rights.