The backbench MP and the privacy debate – the case of the actors

Louise Bagshawe is an author and the MP for Corby, and gained some notoriety for what appeared to be an attempt to comment on the holders of various superinjunctions (she meant anonymised injunctions for reasons explained in my post yesterday) while on Have I got News for You (although – it appears that this may have been a heavily laboured joke).  She has subsequently become a regular interviewee on the topic and has recently promoted an interview she has carried out for a local newspaper in which she explains some of her thinking in relation to the injunctions erroneously referred to as “superinjunctions”. The interview makes interesting reading, not least for some erroneous understandings about the cases which have been decided in the High Court.

The interview narrates that,

“Her first point about superinjunctions is that they can’t, by their very nature, be revealed in the press, but anyone can go onto the internet and find out details about them.

“This is not what they were originally designed to do,” she said. “They were designed to do things like protect the identities of the killers of James Bulger. They were not designed to hide something as mundane as an affair.”

She added superinjunctions favoured the rich, famous men who had affairs, rather than the women, who were often not famous and had less money, who wanted to talk about the relationships.

“It’s their right to do so – they can make a life-changing amount of money. If they don’t want a person to talk about their affair, don’t do it. It’s her life as well.”

The secrecy surrounding superinjunctions means, by their very nature, details are sketchy, but Mrs Bagshawe said one pertained to a married celebrity who had an affair with a colleague, who was then sacked. This was sexual discrimination by both the celebrity and the company who employed both of them – but the details were covered by a court order, all because the married man did not want word about his affair getting out.”

It may be editorial intervention but the comments exhibit a lack of understanding about the remedy granted. A so-called superinjunction is a court order where the existence of the order cannot be revealed. What she (or the reporter or editor) means is an anonymised injunction. As Ms Bagshawe notes a wide-ranging order of this nature preserving the anonymity of a claimant for a lengthy period of time is desirable in some cases (eg those orders originally granted  related to changes of identity  such as for Mary Bell or Thomson and Venables cases).

The gender based point is one that has been raised in some of the debates. Without further information it is difficult to comment on – although the point does not seem without merit as to the numbers granted (at least if the Daily Star Sunday report linked to in my blog post yesterday is to be believed). However, given that an arguable corollary of a right to privacy is a right to publicity – effectively meaning a person has the power to make money out of their image or name (a point made in American law and economics discourse on the topic) Ms Bagshawe may be heartened by a passage in Eady, J’s judgment yesterday where he expressly referred to the ability for Imogen THomas to exercise her right of freedom of expression and sell her story (at para 38)

“Moreover, in so far as Ms Thomas wishes to exercise her Article 10 right [under the European Convention on Human Rights] by selling her life story, she is entitled to do so, but only subject to the qualification that she is not thereby relieved of any obligation of confidence she may owe, or free to intrude upon the privacy rights of others: see e.g. McKennitt v Ash, cited above, at [28]-[32] and [50]-[51]. In so far as there are any conflicts of evidence or of recollection between her and the Claimant, it will be for the court to resolve them at the appropriate time. I will discuss with counsel whether it would be appropriate to order a speedy trial for that purpose. “

The balancing of evidence between the allegations from the claimant (that he had met her 3 times, and at later meetings was asked for money by Ms Thomas and if he did not pay she would sell the story – on which see my post yesterday) and from Ms Thomas (that she had a 6 month affair, and believed the relationship was serious) will be tested in court and once resolved will determine whether a full injunction will be granted or Ms THomas may be able to sell her story free from any encumbrances – although the balancing of the right to privacy with the right to freedom of expression may have broader impact on kiss and tell stories in the media as explored by David Allen Green today. The conflict of evidence and tabloid methodology is also examined in an interesting post by septicisle which examines the case in the wider context of the current debate about privacy.

But to turn back to Ms Bagshawe’s comments. She refers to a case where “details are sketchy, but Mrs Bagshawe said one pertained to a married celebrity who had an affair with a colleague, who was then sacked. This was sexual discrimination by both the celebrity and the company who employed both of them – but the details were covered by a court order, all because the married man did not want word about his affair getting out”. Now the allegation of sexual discrimination by the individual and the production company is a serious one. It carries with it a suggestion that only the married man wanted to block the story and was permitted to do so because of these dastardly injunctions. All, though, is not as it seems to this particular legislator. Details may be sketchy but they are not non-existent.

They are not non-existent because the details of the unanimous Court of Appeal judgment in this case appear on-line in the decision of ETK v News Group [2011] EWCA Civ 439. This was not hard to find.

First then, the fact this decision appears on the BAILII website suggests that it is not – contrary to the view of Ms Bagshawe (or the journalist or editor) – a superinjunction. If it was a superinjunction we wouldn’t know about this at all.  That the judges adjourned a private hearing to declare the judgment in open court (para 4 of the judgment) makes clear this is no super injunction.

Second, the facts are not quite as suggested by Ms Bagshawe.

The judgment of Ward, LJ is clear. he sets out the background at paras 5-8

“In about November 2009 the appellant, who is a married man, began a sexual relationship with another woman whom I shall simply call “X”, who is herself married. The source of the News of the World’s information suggests that this relationship became obvious to those with whom the appellant and X were working. Towards the end of April 2010 the appellant’s wife confronted him with her belief, formed either intuitively, or from information conveyed to her, that he was having an affair. He admitted it. This was deeply distressing for the wife but she and her husband determined, not least for the sake of their two teenage children, to rebuild her trust and their marriage. To that end the appellant accepted that he would end his sexual relationship with X and he so informed her.

Continuing their working relationship was obviously awkward and in discussion with his employers, the appellant told them that he would prefer in an ideal world not to have to see her at all and that one or other should leave but both accepted that their working commitments did not then make that possible. They agreed to conduct themselves with due decorum and to continue to perform their duties in a professional way as in fact they did.

In December 2010 their employers informed X that her services would no longer be required, explaining publicly that it was a convenient moment to make this change. She was, understandably, upset and angry and may even have threatened to take proceedings against the employer. The appellant only became aware of her departure whilst he was on holiday with his family over Christmas.

News of these events leaked to the News of the World whose enquiries alerted the appellant to its wish to publish the fact of the affair and that the affair was the real cause of X leaving her employment. He moved accordingly for this injunction, supported not only by his wife, but also by X. “

Is there anything in the background of a case brought by the actor, supported by his wife AND by the actress, that suggested that the actor was guilty of sexual discrimination – as alleged by Ms Bagshawe?  There may be an argument to be had about the conduct of the company – but there is enough detail made public to allow this argument to take place (and the lack of necessity for considering the particular relationship is considered in para 23 of the judgment).

But should a newspaper be allowed to publish the details of the relationship – rather than just the generalised issue – when the actor, his wife, and the actress all want the story to remain private? That none of them wanted the story to appear is clear from the decision at paras 11 – 17 particularly. What each of them sought was in order to protect the family lives of all parties.

A reasonable expectation of privacy?

Collins J. found in the appellant’s favour. Mr Anthony Hudson, who appears for the respondent, undertakes to file a respondent’s notice to challenge that finding. He submits that the manner in which the appellant and X conducted their relationship was such that it became known to those with whom they worked with the result that knowledge spread in the workplace, reaching to the higher echelons of management. Thus, he submits, the fact of the relationship was “naturally accessible to outsiders”. He relies on observations of Eady J. in X vPersons Unknown [2007] E.M.L.R. 10 at [38] distinguishing between “matters which are naturally accessible to outsiders and those which are known only to the protagonists”. That was a very different kind of case where the judge was drawing a distinction between a couple whose marriage was encountering difficulties (the “protagonists”) and their acquaintances (the “outsiders”) who knew of the marital tensions not from private revelation (which would be protected) but from some public manifestation of the discord e.g. an actual separation (which probably would not entitle the protagonists to a reasonable expectation of privacy). Here the sexual relationship was essentially a private matter. One way or another it became known to work colleagues but their knowledge does not put the information into the public domain – see Browne v Associated Newspapers Ltd cited at [10(3)] above. In my judgment the appellant was reasonably entitled to expect that his colleagues would treat as confidential the information they had acquired whether from their own observation of the behaviour of the appellant and X or from tittle-tattle and gossip which larded the office conversation or from a confidential confession to a colleague. A reasonable person of ordinary sensibilities would certainly find the disclosure offensive.

In my judgment the judge was correct to hold that the appellant’s Article 8 rights were engaged. I would therefore dismiss the respondent’s cross-appeal.

The ultimate balance to be struck between Article 10 and Article 8

As for Article 10, everyone has the right to freedom of expression but the ones with the greatest need for this constitutionally vital freedom are the organs of the media. In the interests of our democratic society we – and that includes the judges – must ensure that the press are freely able to enquire, investigate and report on matters of public interest. The press is the public watchdog. That freedom is, however, not unrestricted as Article 10(2) itself makes so clear that it is worth repeating:

“2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to … restrictions … as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others or for preventing the disclosure of information received in confidence …”

This restriction can only be justified if it is a proportionate and is no more than is necessary to promote the legitimate object of the restriction. To restrict publication simply to save the blushes of the famous, fame invariably being ephemeral, could have the wholly undesirable chilling effect on the necessary ability of publishers to sell their newspapers. We have to enable sales if we want to keep our newspapers. Unduly to fetter their freedom to report as editors judge to be responsible is to undermine the pre-eminence of the deserved place of the press as a powerful pillar of democracy. These considerations require the court to tread warily before granting this kind of injunction.

As for Article 8, weight must be given not only to the right to respect for the private and family life of the appellant himself, but also to the rights of X and, in addition, the rights of the appellant’s wife and his children. It is not at all clear to what extent if at all, Collins J. had regard to the Article 8 rights of anyone bar the appellant. He did say of X:

“8. The first question is whether there is a reasonable expectation of privacy. There was certainly a reasonable hope of privacy shared by the claimant and [X]. The fact that the relationship was adulterous does not mean that privacy was lost. Prima facie the relationship should be protected by Article 8. …”

This suggests her rights were taken into account but other passages can be read as limiting his focus to the rights of the appellant alone for he said:

“9. Thus, I have to consider the balancing exercise between the right of the newspaper under Article 10 and the right of the individualunder Article 8. …

11. The News of the World argues that their rights outweigh those of the Claimant.” [I have added the emphasis.]

As for the wife and children, the judge said this:

“13. My last concern relates to the claimant’s children. As Mr Tomlinson rightly points out, there is likely to be an adverse effect on them if the News of the World discloses the fact of the adultery. One recognises the concerns that this issue raises but unfortunately if one parent behaves in a way that attracts adverse publicity it will affect the children. This is not
something which can tip the balance if there is otherwise no good reason to grant an injunction.”

Every allowance must be made for the fact that this was an ex tempore judgment delivered on a Saturday morning in an urgent application when no-one can expect verbal exactitude or detailed reasoning on every point of the argument. The exigencies of life as the out-of-hours applications’ judge shackle perfection. That said, I cannot but conclude that in this instance the judge erred. First, X’s rights were at the very forefront of the story the News of the World wished to publish, namely that it was the fact of their adultery, not any lack of professional competence, that led to the termination of her services. She did not welcome the intrusion of the press, has made it plain to this Court that she has no intention of bringing proceedings either against her employer or the appellant who is associated with the employer and supports the application. The evidence before the court is that X has made clear that she did not wish her privacy to be invaded at all.

The position of the appellant’s wife is equally clear: she opposes publicity. Then there are the children. The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment. In another context, in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39, [2009] A.C. 115, Lady Hale commented at [4] on the risk of:

“… missing the central point about family life, which is that the
whole is greater than the sum of its individual parts. The right to respect for family life of one necessarily encompasses the right to respect for the family life of others, normally a spouse or minor children, with whom that family life is enjoyed.””

The balancing of the interests of each – taking into account that no party wanted the story publicised – and where there is no general issue of public interest in revealing the specifics of the affair allowed a unanimous Court of Appeal to grant of an order with a warning note (at para 19)

“It is clear that the interests of children do not automatically take precedence over the Convention rights of others. It is clear also that, when in a case such as this the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests. Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card.”

But where no party (the adulterous couple or the wronged spouse) wants the story in the papers, where there may be a detrimental impact on any children involved, and where there is no public interest other than “public prurience” (para 23) why shouldn’t the parties involved be allowed to keep this private?

Perhaps the newspapers in that sector of the market could get back to reporting news and trying to hold those public figures who have power to account (as is happening with the stories relating to one Cabinet minister at the moment) rather than indulging in celebrity tittle tattle.

And perhaps those elected to our legislative bodies could do a little research on the topics on which they pontificate. Surely all voters deserve a legislature and legislators that are well-informed.

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About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
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3 Responses to The backbench MP and the privacy debate – the case of the actors

  1. Lee says:

    Surely it is impossible for anyone to be found in breech of the terms of a superinjunction since no-one is allowed to know it exists, or what the exact conditions are?

  2. Pingback: The Fred Goodwin (not so super) injunction and the “public interest” | Love and Garbage – some commonplace musings

  3. Pingback: An apology to my regular reader | Love and Garbage – some commonplace musings

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