How much privacy can sports stars now expect in the UK?

Published 28 September 2015 By: Amber Melville-Brown

Paparazzi_Through_Car_Window

A footballer is playing away; a cricketer is caught out; an athlete has gone off track; a baseball star has made a home run – but to the wrong home. Are these private matters that our sporting heroes can expect to be kept private? Or must our celebrity sport stars suffers the slings and arrows of media intrusion, and accept that their antics are at risk of being plastered over the pages of the press and captured in paparazzi pictures for the world to gawp at over their Sunday morning breakfast tables?

Today, an individual's inherent need for privacy is exacerbated by the nature of modern media, which panders to our growing interest in the private lives of others, especially celebrities. The British public in particular perhaps, but also across Europe and the world, has a craving for celebrity, and from icons of the silver screen to the stars of the pitch, we are fascinated both by their public persona and by what goes on in their private lives. As the omnipresent Internet spins its web around the globe, with online newspapers, blogs and postings by ‘citizen journalists’ spread across social networking sites, there is little room to hide and every possible risk of further incurrences into privacy. So the interim injunction in the recent court case AMC & KLJ –and- News Group Newspapers Limited (NGN)1 (“AMC”) has been a surprise but welcome decision for those seeking to guard their privacy, especially those in the public media spotlight.

This article analyses the AMC case, comments on the current position of the privacy vs. free speech debate under law, and sets out key points for athletes to consider when seeking to protect their privacy. References in square brackets (e.g. “[1]”) are to the relevant paragraphs of the AMC decision, which can be accessed via the hyperlink above.

 

Background

AMC has got tongues wagging in the legal media field; led to intakes of breath in the newsrooms of the British tabloids; and has caused eyebrows to be raised in the locker rooms of sports men and women far and wide - because it was unexpected.

There had been a spate of privacy injunctions granted in Britain during what was termed by commentators 'privacy injunction spring' in 2011, leading to the press becoming very vocal about its argued chilling effect on free speech. The Master of the Rolls issued his Practice Guidance2 as a result, laying down parameters to limit so-called 'super injunctions' where the names of the parties, the private facts to be protected, and even the fact that the injunction had been granted, were kept from publication.

At the same time, particular judicial attention was being paid to the identity of the applicant so that his or her status as a 'role model' became a major factor in determining whether there was a public interest justification in disclosing the otherwise private fact at issue. However, while AMC is only the voice of one judge in one pre-publication, interim injunction application, it is perhaps a weather forecast of things to come.

Facts

The applicant – known as A1 because his identity is being protected by the injunction – had a relationship two years ago with X. He wasn't married at the time, but was in a relationship with another woman who is now his wife. X wished to tell her story about her relationship and News Group Newspapers Limited (NGN), publishers of the Sun newspaper, offered her the opportunity to do so. Importantly according to the judgment, A1 is a “prominent and successful sportsman, who has from time to time held positions of responsibility in his sport" [6] and who has promoted products in advertisements. X is not a private person either, and has “chosen to display in public aspects of her life which others might regard as normally private". [18]

A1 applied to court for an interim injunction - that is an order of the court to prevent the intended publication of private and confidential details about the relationship until the substantive trial of the case, as well as preventing publication of any information to identify him in the process. In assessing the matter, the court had to balance the competing rights of the applicant to protect his privacy, and the rights of the would-be publisher to tell the story. Those two rights are constant warring siblings; they were brought from the European Convention on Human Rights and incorporated into the domestic law of England and Wales by the passing of the Human Rights Act 1998. Article 8 of the Convention provides that everyone has the right to respect for their private life, their home and their correspondences; whereas and Article 10 guarantees the right to freedom of expression.

 

Decision - Balancing Interests

Ultimately, it will be a matter for the court at the trial (should the matter get that far which is increasingly rare in the field of defamation and privacy law) to balance these rights and ascertain if publication should be allowed or prevented. But this balancing act is also carried out by the judge at any interim hearing, to decide whether the status quo should be preserved, the identity of the parties remain private, and the private and confidential information remain un-published until that trial of the issues. The judge found here in favour of the applicant A1 allowing him to maintain his Article 8 right until trial.

The manner in which the parties had both conducted the affair – privately – was relevant; they didn't discuss it openly and were discreet about it, even looking out for CCTV cameras when they met. And despite suggestions that X is "a shallow, one-dimensional, cut-out character, who broadcasts, and is known to broadcast, her entire private life", the judge found that she conducted the affair discreetly, "valued it", and did not see it "as part of her public career" [18].

NGN argued in favour of publication, that there was a public interest in allowing X and the paper to publish the story because: the sports personality broke his professional rules on occasion by having a woman (X) in his hotel room with him; the affair meat that A1 was deceiving his partner and his manager; and as A1 had used his "clean-living family man'" [26] image to earn money by appearing in advertisements. In other words, this story is "a valuable antidote to this false image" [26] by which he could be exposed as a hypocrite to his now wife, his manager and the public at large.

But the Judge was not so persuaded. Importantly for those in the sports field – and others in public or semi-public roles - she said that she did not consider an "isolated past deception of a former team manager to mean that A1 is a hypocrite, or that there is a public interest in exposing him as one" [25]. Neither was there the requisite current debate of general interest in the subject matter at issue, to justify what otherwise would be an unjustified invasion of private life.

 

Comment

The judge's short interim injunction judgment has caused waves of concern up and down Fleet Street as its publishers have for some time justified their invasions into the private lives of celebrities by arguing:

  1. that the private conduct exhibits a hypocrisy - as opposed to the image they portray in public life - which must be exposed, and
  2. that their status as a role model effectively sets the benchmark higher for them to justify prying if ever that role model should put a foot out of place.

While AMC is only one decision, and an interim judgement at that, it may indicate a more nuanced approach in the future, allowing even our sports stars and celebrities to behave like 'normal' human beings (i.e. flawed) without their high profile role necessarily being a high bar over which to vault, for privacy protection.

 

Privacy/Security vs. Information/Freedom

While privacy law exists to prevent the dissemination of private information, there is no directory of private material to thumb before a lawyer or an agent that allows them to advise their sports star with certainty whether or not a complaint may successfully be made. But having sight of the plethora of previous privacy cases, we can estimate a number of potential no-go areas for the press, or where at least they will need to get their free speech and public interest ducks firmly in a row before glibly proceeding to publish. These include:

  • sexual and relationship matters;
  • the naked body;
  • medical issues;
  • the protection of children;
  • details about the home; and
  • some financial matters.

These are precisely the sort of private matters that any person would want to remain private – and precisely the sort of information, when it concerns our sporting heroes that the press would like to publish.

To establish their potential claim with regard to any private material, the claimant needs first to show that their rights under Article 8 of the European Convention on Human Rights are engaged and this requires them to evidence that they have a reasonable expectation of privacy with regard to the information that is under threat; and this may be more likely the case if the material in question falls into any of the categories highlighted above.

The claimant should then give thought to whether that Article 8 right may be overridden by any countervailing considerations, such as the Article 8 or Article 10 rights. If the claimant is applying – as they usually will be – for a pre-publication interim non-disclosure order (aka. the privacy injunction), then they will also have to show that there is an immediate threat to publish and that, should the matter ultimately come to trial, they would be likely to succeed at convincing a court that the publication should have been prevented in the protection of his or her Article 8 rights.

 

Public and private duality

Before AMC, an increasing distinction had begun to be drawn between those in the public eye – those considered to be 'role models' - and those who are private persons. It had been the case that becoming an ‘A-lister’ could equate to signing a pact to accept probing into every detail of your private life.

In the case brought by supermodel Naomi Campbell in 2003 against Mirror Group Newspapers, the Court of Appeal had ruled: "We do not see why it should necessarily be in the public interest that an individual, who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay."3 And the European Court of Human Rights (ECtHR) in the case of Von Hannover v Germany4 drew a distinction between the two categories of public and private persons. Caroline, Princess of Hanover, complained about the unauthorised publication of photographs of her out and about in public but not performing/fulfilling any public role or duty. In simple terms, the ECtHR ruled that where ‘Caroline the woman’ was going about her private life, there was no justification for publishing any such photographs as distinct from when she was fulfilling an official function, in her capacity as ‘Caroline the Princess’. This was clearly beneficial to those who might have two distinct roles, princess and private person, or footballer and husband, for example.

However then came a series of cases that started to blur the lines. In Spelman v Express Newspapers5 an under-18-year-old aspiring rugby player failed to win an injunction against disclosure of his use of banned steroids, the court finding that "a condition of participating in high level sport [is] that the participant gives up control over many aspects of private life". This harks back to the ruling of the Lord Chief Justice, Lord Woolf, in A v B, also known as the Flitcroft case (after footballer Gary Flitcroft lost his anonymity).6 Lord Woolf controversially asserted in his judgment: "A public figure is entitled to a private life. The individual, however, should recognise that because of his public position he must expect and accept that his actions will be more closely scrutinised by the media."

On the heels of Spelman, another blow to privacy protection was dealt by the High Court in McClaren v News Group Newspapers.7 In this case, the judge ruled that a higher standard of conduct should be expected from ‘prominent public figures’, depriving the applicant in this case – the former England manager who had been an England football manager for a mere 17 months more than five years previous - of the privacy protection he sought.

 

Role model responsibilities

The lucky few that make it to the top in football may be blessed with a good left or right foot, but may also be young and unworldly. They may earn vast fortunes, but they don’t profess to run our country, or to teach our younger generations how to behave off the pitch. Should they really have to trade-in their privacy, or be expected to set the tone for public behaviour, as a result of the day job? The decision in AMC suggests not. Mrs Justice Laing's view was that A1 "is a role model for sportsmen and aspiring sportsmen. Any scrutiny of his conduct away from sport ought to bear a reasonable relationship with the fact that he is a sportsman… He is not a role model for cooks, or for moral philosophers… I do not consider that being a public figure of and by itself makes the entire history of the person's sex life public property" [20].

Footballers are used to being on the back pages of our papers as a result of their sporting prowess; but they were having to get used to being on the front page also as a result of their perceived role-model status. The former England captain, John Terry,8 failed to convince a court to protect his privacy and to stop publication of details of an extra-marital affair when it considered that his aim was in fact to protect his reputation, including lucrative sponsorship agreements. And even though Ryan Giggs9 was successful in his privacy injunction it became an own goal when details of the affair he had sought to keep quiet – as well as the fact of the anonymised injunction itself – were posted on Twitter and discussed in Parliament under parliamentary privilege.10 Rio Ferdinand was also shown a judicial red card when his off-side relationship was reported by the papers, because the court considered that, as a former England captain, he had a duty to maintain high standards ‘on and off the field’.11

 

Privacy and hypocrisy

Anyone with a potential public persona is at risk and needs careful management of their public actions and pronouncements to protect their private lives from intrusive media. Notwithstanding the potential benefit that the AMC interim decision may bring, there is still an argument that in doing anything to publicise themselves or their career, celebrities and sports stars allow their private lives to be revealed in the public interest. That is because one of the issues taken into account when weighing the respective rights at play, and which can provide the media with a justification for publication, is that the exposure of private information is in the public interest because it exposes hypocrisy.

Naomi Campbell, for example, accepted she could not successfully complain about the exposure of her drug addiction, as opposed to the detail of the therapy that she was obtaining at Narcotics Anonymous, because she had openly commented that she did not take drugs. Her public statement was at odds with the true position and the media would have been entitled, the argument goes, to publish the private fact in the public interest, so the public did not continue to be misled.

While there do not appear to have been any examples in which genuine criminality has gone unreported because of a civil injunction, conduct that may engender disapproval, for example adultery, is a favourite topic for the media and they bemoan that privacy injunctions prevent them from 'educating' the public about them (or is that just perhaps titillating them?). As AMC shows, individuals do not have to have been models of virtue to be granted the protection of the court. The corollary has been that if the poor but private behaviour that the claimant wishes to keep under wraps does risk misleading the public, there may be a public interest justification for the publication.

Rio Ferdinand, referred to previously, was hoisted by the petard of his own autobiography and interviews in which he had repeated that he was a ‘reformed character’ when he later sought to prevent publication in The Sunday Mirror of his 'text infidelity’ (with a woman with whom he had previously had a relationship but in fact, had not actually met in person during the period in question). His public image of reformation was not reflected in reality and accordingly the fact of the relationship could be published in the public interest (Ferdinand v MGN12).

 

There's no place like home

But there's more to privacy protection than sex. Sports stars and other celebrities, given the constant media attention to which they are subjected, need some private time and space for themselves and their families. One of the biggest privacy concerns for them therefore, may be the extent to which they are protected in their home or in places that they consider private.

Privacy in the home is specifically protected by Article 8 of the European Convention on Human Rights. In McKennitt -v- Ash,13 the judge said that "relatively trivial details would fall within this [Article 8] protection simply because of the traditional sanctity accorded to hearth and home. To describe a person's home, the decor, the layout, the state of cleanliness, or how the occupiers behave inside it, is generally regarded as unacceptable. To convey such details, without permission, the general public is almost as objectionable as spying into the home with a long distance lens and publishing the resulting photographs." [135].

The situation becomes more complex for well-known figures once they leave their homes. For example, in John v Associated Newspapers,14 Mr Justice Eady found no reasonable expectation of privacy in photographs of Elton John that were taken as he walked from his Rolls Royce to the front gate of his house. The numerous cases of celebrities being photographed on holiday, in both private and public locations have given rise to a difficult test of when they will and will not have a reasonable expectation of privacy.

 

Money matters

Nowhere is society’s curiosity in the finances of others more acute than with regard to the rich and famous. Given the polarised backdrop against which details of finances may be revealed, either with consent or otherwise, it is natural to wish to shield one’s finances from prying eyes. Finances give an insight into a person’s lifestyle, preferences and what is being planned for the future.

In the majority of cases intrusion into personal finances is unwarranted and unjustified as the media has no interest in delving into a private individual’s bank accounts and financial affairs where there has been no wrongdoing. But there are occasions, as with all aspects of ostensibly private information, where there is a public interest that overrides the otherwise confidential nature of the information. It all comes down to balance and the difficult concept of public interest. This may be of particular importance today in the climate of outing so-called 'tax dodgers’, with many sports starts unwittingly caught up in unattractive or even unlawful tax avoidance schemes, they may easily find not only the tax man, but also the press, hot on their heels.

 

Key points for athletes to consider when seeking to protect their privacy

There is no one-size-fits-all explanation of what will and will not be protected from prying eyes in the life of a sports personality. But some guidance can be offered to indicate when the alarm bells should ring, and when an athlete needs to consider contacting their agent and lawyer. If an injunction is being considered, analysing the following points will be key: Whom does the private information concern? What exactly is the private information? Where did it come from? And how it was obtained?

Who

As AMC shows, just because an Applicant (A) is a sports star or any other potential 'role model' it does not necessarily mean that A should throw in the towel and give up the fight. If the intrusion relates to A's children, given the desires of the courts and the regulators to protect the vulnerable, A has an even greater possibility of preventing or restricting publication.

What

Sexual matters, the naked body, medical or quasi medical matters, children-related issues, details about the home, private and confidential financial information; these are not a definitive list but are likely to be considered matters pertaining to A's private life in respect of which s/he has a reasonable expectation of privacy. The prospective publisher will have to find them already to be in the public domain, or to establish a debate of public interest is ongoing, or that a relevant and proportionate hypocrisy exists, in order to dislodge the reasonable expectation of privacy.

Where

Information / photographs taken where A has a reasonable expectation of privacy – in the home, in a private venue, in a place of seclusion – are again going to require justifications as set out above.

How

Photographs obtained surreptitiously, by a long lens into a private space; images and information gathered in circumstances of harassment; information ascertained where the publisher knew or ought to have known that it was confidential, notably of late, through phone hacking for example, but also perhaps from a private indiscreet source required to keep the information confidential, should raise alarm bells.

None of the categories will necessarily deliver a knock-out blow; all should be taken into account by our sporting personality and his or her advisers; and ultimately, our sporting hero may be able to assess whether he or she has a chance of ensuring that their privates remain well and truly under wraps.

 

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Author

Amber Melville-Brown

Amber Melville-Brown

Amber Melville-Brown is a media law specialist and head of Withers' Reputation Management team.

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