The privacy of the lives of celebrities continues to be an extremely topical area of the law. The high-profile case of England footballer John Terry's alleged extra-marital affair is a prime example. The England captain who is married with two children has become the most recent celebrity to challenge the status of so-called "privacy laws" with his attempts to secure an injunction to prevent the media reporting on his affair with former team-mate Wayne Bridge's ex girlfriend.
The initially successful argument made by the legal team of John Terry was based on Article 8 of the European Convention of Human Rights which states that "everyone has the right to respect for private and family life" and secured John Terry a "super-injunction" preventing the media from reporting not only on the alleged affair but also disclosing the fact that the injunction exits at all. However, the decision to grant the super-injunction, which was met with much criticism, was subsequently overturned by the High Court. There were a number of explanations for Mr Justice Tugenhat's decision to lift the super-injunction previously secured by Terry including the argument, put forward by the media, of freedom of expression under Article 10 of the European Convention of Human Rights. Mr Justice Tugendhat also considered that Terry's reasoning behind the injunction was more to protect his England captaincy and earning power through sponsorship deals etc, than it was to protect his private life. All things considered, the Court felt that, in this case, the media's right to freedom of expression outweighed Terry's right to a private life.
It is without a doubt that this decision, which is being regarded by many as a landmark decision, may have significant effects on the continuing development of this area of law in the UK. Use of "super injunctions" has significantly increased in recent years, particularly by celebrities, and there is growing legal opinion that such injunctions are being misused by the rich, famous and powerful.
An important aspect of this area of law is that currently there is no right to privacy or privacy law as such in the UK. Instead, human rights legislation, other pieces of legislation and the common law of confidentiality, have been used as vehicles to allow the courts to develop unofficial privacy laws through various high profile cases.There is a real need in the UK to address the lack of clarity around the right to "privacy" instead of allowing "backdoor" privacy laws to develop through court cases which potentially are open to misuse.
Overall, the concept of privacy law in the UK is in need of clarification and guidance. There are some promising signs of change emerging. For example, the House of Commons Culture, Media and Sport Committee recently published a report on libel, privacy and press standards.Although the committee do not deem it appropriate to legislate on privacy at the moment, which to many, would be the most effective solution, it does recommend several changes to the Press Complaints Commission (PCC) Code, which would require journalists to notify the subject of their articles prior to publication in certain cases.It is recommended not to make this requirement mandatory; however failure to do so should be considered an aggravating factor when assessing damages.Other recommendations include a fast track procedure for appeals for interim injunctions and improving the credibility of the PCC.It is not clear whether the Committee's report will be adopted by government.
In the meantime, responsibility for development of this area of the law remains with the courts and Mr Justice Tugendhat's, repeal of the super-injunction, although not creating any new law, perhaps signals a halt to what was appearing to be the ever widening scope of the UK's unofficial privacy laws.
By Loretta Maxfield, Solicitor and Lisa Mannion
5 March 2010