The Premier League footballer case (and I call it this because the alleged subject John Terry was not actually named in the proceedings) has been heralded by sections of the media as being a ‘turning point’ in what has become a privacy battle (or match to keep on the football theme). As we have read in countless cases before the issue is of balancing article 8 of the European convention on human rights – respect for private and family life – with article 10 – freedom of expression.
By way of background it now seems public knowledge that Chelsea and England captain John Terry had an affair with the former girlfriend of England teammate Wayne Bridge. On the 22nd of January Terry’s lawyers applied for what has become known as a ‘super injunction’ to block reporting of the alleged affair. Basically a ‘super injunction’ is an injunction whose very existence cannot be reported on let alone the reason for the injunction. On the 29th January however the High Court refused to extend the injunction on the basis that Mr Justice Tugendhat (the judge) believed that Terry was motivated more by fears for his commercial prospects than for a genuine desire for privacy.
Tugendhat stated: “I think it is likely that the nub of the applicant’s complaint is to protect reputation, in particular with sponsors”.
He added that: “Freedom to live as one chooses is one of the most valuable freedoms. But so is the freedom to criticise; within the limits of the law; the conduct of other members of society as being socially harmful, or wrong”.
Of particular importance in this case is that Terry was not named i.e. the injunction was applied for as ‘LNS versus persons unknown’. By doing so of course it meant that the newspapers were not made aware of the case and so could not put forward any challenges in court, Tugendhat took umbrage to this and considered it as unfair and refused to hear certain arguments in the case on the basis that the media could not respond to them. The other deciding factor is regarding the evidence. Firstly Terry’s lawyers put forward arguments based upon the economic loss that Terry would suffer should details of the affair be released, if they had concentrated on the effect on his wife and children then this may well have shown a genuine desire to privacy. Also Terry did not turn up to court to give evidence (perhaps to avoid any paparazzi that may have been waiting to establish the parties identity) and instead relied upon witness statements from business associates, again this adds to the issue of commercial harm rather than family harm.
If Terry’s lawyers had in fact concentrated on the family elements and given notice to the media i.e. applied for an injunction rather than a ‘super injunction’ then we may well have not heard about his affair and his privacy would have been upheld. Seemingly then this is not (as widely believed) a defeat to the law of privacy in this country but is merely a case decided on its particular factual merits.