A v B and C: The footballer case muddies the law of privacy

Those who advise in the area of Privacy and Confidence hoped that the Court of Appeal would hand down a judgment which would bring clarity to this whole field. Unfortunately, the judgment handed down on Monday makes few issues clearer, except that the balance between the Article 8 right to privacy and the Article 10 right of freedom of expression has shifted in favour of the media.

The case involved an application by a Premier Division footballer for an injunction to prevent publication by The Sunday People of details of his extra-marital relationships with two women, one of whom was a lap dancer. An injunction was granted in the High Court, and the newspaper defendant appealed.

The Court of Appeal overturned the judgment of Mr Justice Jack on a number of bases. The Court rejected the judge’s approach in equating sexual relations outside marriage with those within marriage. The Court also took into account the decision by the two women involved to disclose their relationship, which brought into play their entitlement to freedom of expression. The distinction made by Mr Justice Jack between disclosure by the women to their friends as being less objectionable than publication by the media was also rejected as failing to take into account the importance of press freedom. The judge was also criticised for assuming that it was in the interest of the footballer’s wife to be kept in ignorance of these relationships.

Perhaps most importantly, the Court of Appeal decided that a Premiership footballer, by his very status as such, became a role model for young people and undesirable behaviour on his part could set an unfortunate example. Even though the footballer had not courted publicity, the very nature of his position made him a figure in whom a section of the public and the media would be interested. Consequently the degree of confidentiality to which the footballer was entitled, where the other two parties to the relationships did not desire confidentiality, was very modest.

The Court of Appeal set out a long and not particularly helpful set of guidelines intending to assist judges at first instance when dealing with applications for privacy injunctions. To some extent they state the obvious: for example, that the law will more readily protect confidence in stable relationships rather than fleeting ones. Some are more surprising. Tabloid journalism will welcome the observation that even trivial facts about a public figure can be of great – presumably legitimate – interest.

The Court sidestepped the issue whether there is or is not a law of privacy, stating merely that the law of confidence was now sufficiently broad to deal with such issues. The Court accepted that even a public figure is entitled to a private life. However, such individuals must recognise that their actions will be more closely scrutinised by the media.

Apart from demonstrating that the scope for such injunctions has been narrowed, the case does not provide much assistance as to exactly what information the court will protect from publication, or as to how in practice being a “media figure” affects your privacy rights, or indeed as to how one now decides who is and who is not a legitimate subject of media interest. Hence neither the referees nor the players in this developing field of law are much the wiser.

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.