Précis – A recent High Court decision appears to have made it harder for a public figure to protect information relating to their private lives.
What? When considering an application for a privacy injunction, a two-stage test is applied by the Court. The first concerns whether or not the information that has been published is deemed to be private. The second involves balancing that right with the other party's right to freedom of expression. It is here that the Court will consider whether there is a public interest justification for information to be published. This case concerned an application for an injunction to prevent the publication of a press story alleging infidelity by ex-England football team manager Steve McClaren. Steve McClaren’s public status as an ex-England manager, combined with his previous disclosure of an extra-marital affair in the national press, led the Court to reject the application for an injunction. It was noted by the Court that this press story had likely been a “set-up”, but this was not deemed material in determining whether to grant an injunction.
So what? The second limb of the test has evolved significantly through case law. Recent developments have suggested that where an individual has acted hypocritically (in that a previous claim or statement made by them is going to be revealed by the press as being untrue) it is unlikely that they will succeed in obtaining an injunction. It is notable that Steve McClaren had never stated in the press that he would not commit adultery; only that he was “happily married” and that his “marriage would survive” a previous infidelity. Perhaps more significantly, a broad meaning was applied in assessing whether Steve McClaren’s past role as manager of England, qualified him as “exercising a public function”. It was determined that this historic role was enough to meet the criteria enabling the information to be deemed as being in the public interest.
It will be interesting to see whether this judgment is followed strictly in the future, as it appears to have broadened the basis on which someone is likely to be seen as a “public figure” in relation to whether information about them is of “public interest”.