In a judgment which has been roundly condemned in the press not only by the newspaper which is the subject of the injunction, but also by other newspapers, Mr Justice Jack has prevented the Sunday People (referred in the case as “B”) from publishing details of the extramarital affairs of a prominent footballer.
Criticism of the judgment has come from many sides including even Lord Wakeham, the Chairman of the Press Complaints Commission, despite the fact that in arriving at his judgment, Mr Justice Jack expressly applied the Press Complaints Commission Code.
The facts of the case were simple. A (a leading married footballer) had affairs with two women, one of whom was a lap dancer. Both claimed that they had been deceived by A either as to his marital status, or the status of his marriage. There was evidence that one of the women had tried to blackmail A, but both had sold their stories to the Sunday People.
A made an emergency application to the court to prevent publication of the stories. The initial application was successful, but was then reviewed with the judge considering more substantial evidence from both sides. The Sunday People’s evidence included the two draft articles which they wished to publish. The judge said of them: “Much of each is concerned with salacious description of the sexual activity between the claimant and C or D. They are intended for the prurient.”
The judge then carefully analysed the relevant parts of the Human Rights Act, the applicable European case law, the UK case law (which clearly supported the injunction) and the provisions of the Press Complaints Commission Code which expressly provides that intrusions into the private lives of individuals must be justified on the basis that they were in the “public interest”.
The Code itself states that the Commission “will require a full explanation by the editor demonstrating how the public interest was served [by publication].” This was in effect what the judge asked the newspaper to do in resisting the order for an injunction. He concluded that the newspaper had failed to do so. After concluding that sexual relations both within and outside marriage would ordinarily be protected by the law of confidence (as Article 8 of the European Convention provides), the judge decided that this meant that there must be a “public benefit” in the confidential material being published for the publication to be protected by Article 10 (freedom of expression). He rejected the suggestion that merely because the claimant was a “public figure” as a consequence of being a successful professional footballer, this of itself justified publishing accounts of what the judge accepted was his morally reprehensible conduct.
Mr Justice Jack recognised that the balancing exercise between the need to protect freedom of expression and the need to protect the privacy of the individual was a difficult one, and each case had to be looked at on its own merits. He came to the firm conclusion, however, that there was no public benefit to this information being published.
The judge therefore appears to have made a value judgement as to the appropriate ambit of the term “public interest” where it is used both in the Press Complaints Commission Code and by the court. The claims in the newspapers that such a judgment (if applied) would have prevented publication of such scandals as the Profumo affair are clearly not justified. The judgment has been widely misrepresented in the newspapers as constituting a blanket ban on the press from publishing any indiscretions (sexual or otherwise) on the part of individuals who are truly “public figures”. A careful reading of the judgment makes it clear that it is not so. It merely prevents a newspaper from publishing, under the guise of press freedom, salacious accounts of sexual indiscretions by well known individuals without their consent. To that extent, it did nothing to change the law as it has been for about a century.