Sex and privacy: Theakston v MGN Ltd

Further clues as to how the courts will interpret the right of privacy conferred by Article 8 of the European Convention on Human Rights emerged from the judgment of Mr Justice Ouseley in the recent application by Top of the Pops TV presenter Jamie Theakston for an injunction to prevent publication by the Sunday People of a written account and photographs of his visit to a brothel in Mayfair.

Although the judge was sceptical of Theakston’s claim only to have realised he was in a brothel when other prostitutes entered the room, Theakston did admit that a prostitute had performed a sex act on him. Theakston left the establishment when he realised that he was being photographed and was then chased for payment by the prostitute on his mobile phone on threats to hand photographs to the press.

Theakston refused the demands to pay, which the judge described as having “the appearance of blackmail”, and the photographs and prostitute’s story were released to the Sunday People. When Theakston was asked by the newspaper for his reaction to the story prior to publication, he sought an injunction. He argued that the activities were confidential as they took place in a private place, that publication would infringe his Article 8 right to privacy, that he had not placed his private and/or sex life in the public domain, and that the story lacked any public interest.

The Sunday People argued that Theakston must have known that the establishment was a brothel, that he had in fact placed his private and sex life in the public domain in previous publicity, and that because of his role as a presenter of popular programmes to young viewers, the reporting of such conduct was in the public interest.

The injunction was granted for the photographs, but not the story. As to the story, the judge ruled that the principle of confidentiality would not cover all acts of intimacy, and a transitory engagement in a brothel was entirely different from sexual relationships between couples in their home. There was no inherent confidentiality in a commercial relationship between a prostitute and a client, and nor were events inside a brothel inherently confidential.

The judge also observed that the question of confidentiality cannot be judged “solely from the point of view of one participant in the activities and in the relationship, if it can be so called. The prostitutes clearly took a different view of what they had seen and done with the claimant.”

The PCC Code definition of a “private place” did not, in the judge’s view, include a brothel. However, there was a reasonable expectation that in such an establishment a client would not be photographed, and there was no public interest in the publication of photographs, hence the granting of an injunction. The judge also concluded that blackmail was the only purpose in taking the photographs and that, in the judge’s view, was contrary to the PCC Code. The Article 10 right of freedom of speech, however, justified the written account of Theakston’s activities, who had willingly placed at least some aspects of his private and sex life in the public domain on previous occasions.

What sexual relationships will be covered by the privacy/confidentiality jurisdiction is still to some extent a matter of conjecture. However, the more transitory and casual they are, the less likely it is that they will be protected. The judge commented that a one night stand with a recent acquaintance in a hotel bedroom might very well be protected from press publicity, but a brothel was further removed. Similar issues are currently in the Court of Appeal. The decision of the Court of Appeal in A v B (the footballer case: see our November 2001 bulletin) is awaited, and will shed more light on this issue. The decision of Mr Justice Morland in the Naomi Campbell case will also be made after the Court of Appeal has handed down judgment in the footballer case. These will both be the subject of future early warnings.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.