England footballer Rio Ferdinand has lost his privacy battle against the Sunday Mirror in relation to a 'kiss and tell' story published in 2010. On September 29 2011 the High Court handed down its judgment, which dismissed Ferdinand's £50,000 claim against the newspaper.(1) The bottom line in the decision was that the public interest in publishing the article in question outweighed Ferdinand's reasonable expectation of privacy. The judge also refused permission to appeal, although Ferdinand may pursue the matter further by applying directly to the Court of Appeal. This threat of appeal has enabled Ferdinand successfully to request that parts of the public judgment be removed so as not to frustrate the outcome of a possible appeal. However, for now at least, the media can revel in a rare kiss and tell privacy win.
On April 28 2010 the Sunday Mirror published an article under the headline "My Affair with England Captain Rio". The claimant, a well-known footballer and recently deposed captain of the England team, claimed that the article was an unjustified infringement of his right to privacy, a misuse of his private information and a breach of confidence. MGN Limited, which publishes the Sunday Mirror, defended the article as a legitimate exercise of its right of freedom of expression.
The article constituted a 'kiss and tell' account of Ferdinand's relationship with Carly Storey. It recounted that the pair had met as teenagers and had thereafter enjoyed an on-off sexual relationship until around May 2005, at which point they lost contact for a couple of years. They resumed contact in October 2007 and from that date engaged in frequent text communications until some time in 2009. After a gap of several months, the pair exchanged text messages again in December 2009 and January 2010. On February 5 2010 Ferdinand was appointed captain of the England football team to replace John Terry - ironically following Terry's failure to gag the press in relation to an extra-marital affair that he was alleged to be having. Ferdinand and Storey exchanged their last text messages on February 6 2010. Shortly afterwards, Storey decided to approach the media.
In addition to the text of the piece, a number of images appeared, including five screen shots of text messages that Ferdinand and Storey had exchanged and a photograph, taken in 1997, of the pair together in a hotel room.
As explained in the redacted judgment, before 2006 Ferdinand had something of a wild reputation. In 2000 he was involved in a sex scandal in the Cypriot resort of Ayia Napa, which received widespread publicity. In 2003 he missed a drugs test and was banned from playing professional football for several months. Between 2002 and 2006 numerous articles were published in which it was alleged that Ferdinand had been unfaithful to his long-term partner, Rebecca Ellison. This context helps to explain Ferdinand's reputation in January 2006, when he gave an interview to the News of the World after Ellison fell pregnant with the couple's first child. During the trial, Ferdinand explained that this interview had been arranged by his commercial agent.
The interview resulted in a News of the World article entitled "I've been a cheat before… but I'll be a great dad". It was published on January 29 2006. In it, Ferdinand said: "I've strayed in the past – but I'm going to be a family man now." He admitted to "succumbing" to other women during his five-year relationship with Ellison. The article included the statement that Ferdinand "reckons he's tackled his infidelity and is ready to grow up and take on the responsibility of fatherhood". He was quoted as having said:
"I think everyone has seen over the last few years how I have matured… the key when you make mistakes is to learn from them. My priority now is Rebecca, the baby and having a stable family life."
In September 2006 Ferdinand published his autobiography, Rio, My Story. The book touched on a number of aspects of his private life, including the Ayia Napa incident, his relationship with Ellison and his understanding of his responsibilities on and off the pitch. Following the publication of the autobiography, Ferdinand conducted a number of interviews in the media in which he discussed his reformed lifestyle.
Following Ferdinand's first appointment to the England captaincy in March 2008, The Mail Online published a story under the headline: "Good role model? Rio Ferdinand named England captain despite drug testing and roasting rows." The article quoted England manager Fabio Capello as saying that the team captain would be "a symbol on and off the pitch". Capello stated: "I have to know the man, not only the player… he's a symbol of the England team… a symbol is a good player, a good man and he has to represent the England team in every situation."
It was against this background that the court had to apply the requisite test in McKennitt v Ash to decide:
whether the claimant's rights under Article 8 of the European Convention on Human Rights were engaged - specifically, whether he had a reasonable expectation of privacy in the information of which he complained; and
if so, whether - in all the circumstances - the interests of the claimant as regards that private information took precedence over the defendant's competing Article 10 rights of freedom of expression.
Reasonable expectation of privacy
The judge ruled that Ferdinand had a reasonable expectation of privacy and that the information in the newspaper article was, in principle, protected by Article 8.
In his reasoning, the judge relied on the following factors:
Sexual behaviour in private is one of the core aspects of individual autonomy which Article 8 is intended to protect. The subject matter of the newspaper article was therefore private information.
The relationship between Ferdinand and Storey was private. They had not been seen in public as a couple. On Storey's evidence, knowledge of their relationship was confined to their circle of family and friends. The newspaper article had been billed as an exclusive.
Ferdinand had carefully considered how much of his private life he wished to expose in the media. His public statements concerning his private life did not mean that he had forsaken a reasonable expectation of privacy in connection with his relationship with Storey. Before the article was published, Ferdinand had not disclosed anything about this specific relationship to the media.
The other 'kiss and tell' stories that had been published about Ferdinand had not been published with his consent and so could not deprive him of a reasonable expectation of privacy. The fact that Ferdinand had not brought proceedings over those other stories could not be taken as tacit acceptance of another article, let alone another article about a different woman.
The recklessness of Ferdinand's behaviour was not such as to deprive him of reasonable expectation of privacy.
The judge similarly concluded that the photograph and the text messages that had been reproduced in the newspaper article constituted information that, in principle, was capable of protection, the publication of which would, subject to the balancing test, infringe Ferdinand's rights under Article 8. The text messages were examples of 'correspondence' under Article 8 and the photograph, although characterised as "borderline", showed Ferdinand and Storey in a private hotel room.
The court used the 'intense focus' test set out by Lord Steyn in Re S (a child) to consider the competing Article 8 and Article 10 rights at issue. The judge referred to Section 12(4) of the Human Rights Act 1998, but acknowledged that case law had made clear that neither article has automatic precedence over the other.
The following public interest defence arguments were significant on the facts:
On the issue of the public interest in correcting a false image, the judge held that although the truth of a publication is not usually relevant to a privacy claim, truth is important in the specific context of a defence of public interest based on correcting a false image. Ferdinand had, by his interview with the News of the World and subsequent media dealings, portrayed himself as a reformed character. This included an image of himself as a family man and someone who had given up the ways of his past – and specifically cheating on Ellison.
Addressing Ferdinand's appointment as England captain and his perceived status as a role model to a certain section of the public, the judge remarked that the phrase 'role model' was somewhat ubiquitous. However, it was clear from the relevant case law and statements that had been made in the media that many people believe footballers in general and the captain of the England football team to be role models. The judge did not have to decide whether Ferdinand was fit to be England captain, but held that the article reasonably contributed to the debate about his suitability for that role.
Ferdinand's relationship with Storey had had an impact on his professional life. By his own admission, on more than one occasion he had either succeeded in sneaking Storey into a hotel at which he and the other members of his team were staying, against the rules of the team's management, or had attempted to do so. This unprofessional conduct could legitimately be used to call into question his suitability for the role of England captain.
As distinguished from Campbell v MGN, the defendant was entitled to place the relationship between Storey and Ferdinand in context. As such, the judge held that the details of the relationship contained in the article did not constitute an excessive intrusion into Ferdinand's private life.
In relation to the photograph, the judge held that Ferdinand had a reasonable expectation that such a photograph would remain private, but its unexceptionable character meant that this right was of relatively low importance. Overall, the circumstances in which the photograph had been taken and the anodyne nature of the image together justified MGN's use of it to provide an element of credibility to the story. The photograph had been taken openly, by one of the other people in the hotel room with Ferdinand and Storey. Moreover, it showed them fully clothed, and not even engaging with each other, as Ferdinand was pictured speaking on a mobile phone. Distinguishing the case from Campbell, the judge held that the photograph did not cause the claimant unjustifiable additional distress.
The judge ruled that, overall, "the balancing exercise favours the defendant's right of freedom of expression over the claimant's right of privacy". He dismissed the action