Summary

Serial tweeter Rio Ferdinand has lost his privacy battle against the Sunday Mirror. His privacy row related to a “kiss and tell” story published in the Sunday Mirror last year. Today the High Court handed down its judgment which dismissed Mr Ferdinand’s £50,000 claim against the newspaper.  The bottom line in Mr Justice Nicol’s decision was that there was a public interest in publishing the relevant article which outweighed Mr Ferdinand’s reasonable expectation of privacy. Mr Ferdinand was today refused permission to appeal by Mr Justice Nicol, although he may pursue the matter further by applying directly to the Court of Appeal. This threat of appeal has enabled Mr Ferdinand to successfully 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.

The redacted judgment can be accessed here.

Background

On 28th April 2010, the Sunday Mirror published an article under the headline “My Affair with England Captain Rio” (the “Article”).

The Claimant, a well-known footballer and recently deposed England football team captain, claimed that the Article was an unjustified infringement of his rights to privacy, a misuse of his private information, and a breach of confidence.  The Defendant, MGN Limited, publisher of the Sunday Mirror, defended the Article as a legitimate exercise of its right of freedom of expression.

In short the Article constituted a “kiss and tell” from the perspective of a woman called Carly Storey.  The Article provided an account of the Claimant’s relationship with Ms Storey.  Namely, that the pair had met when they were 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 5 February 2010 the Claimant was appointed captain of the England football team to replace John Terry.   (Extra-marital affairs are an occupational hazard for England captains - Ferdinand’s appointment followed Terry’s failure to gag the press in relation to an extra-marital affair he was alleged to be having.)   The Claimant and Ms Storey exchanged their last text messages on 6 February 2010 and shortly afterwards, Ms Storey decided to approach the media. 

In addition to the written text of the Article there were a number of images including five screen shots of text messages that had been exchanged between Ms Storey and the Claimant (the “Text Messages”), and a photograph of the pair together in a hotel room in 1997 (the “Photograph”).

The context

As explained in the redacted judgment, before 2006 the Claimant had something of a “wild” reputation.  In 2000, he was involved in a sex scandal in Ayia Napa, which received widespread publicity. In 2003 the Claimant missed a drugs test and was banned from playing football for several months.  Between 2002 and 2006, numerous articles were published alleging that the Claimant had been ‘cheating’ on his long-term partner Rebecca Ellison.  This context helps explain the reputation of the Claimant in January 2006, when he decided to give an interview to the News of the World when Ms Ellison fell pregnant with the Claimant’s first child.  The Claimant explained during trial that this interview had been set up by his commercial agent.

This interview resulted in a News of the World article entitled “I’ve been a cheat before…but I’ll be a great dad” published on 29th January 2006 in which the Claimant said, “I’ve strayed in the past – but I’m going to be a family man now.”  The Claimant admitted “succumbing” to other women during his five year relationship with Ms Ellison.  The article included a statement that the Claimant “reckons he’s tackled his infidelity and is ready to grow up and take on the responsibility of fatherhood.” A further quote on this was included: “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 the Claimant published his autobiography: “Rio, My Story“.  This book touched upon a number aspects of the Claimant’s private life including the Ayia Napa incident, his relationship with Ms Ellison and his understanding of his responsibilities both on and off the pitch.  Following publication of the Claimant’s autobiography, the Claimant conducted a number of interviews in the media in which he discussed his reformed lifestyle.

Following the Claimant’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” which quoted Fabio Capello saying the team captain would be “a symbol on and off the pitch … 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 Article 8 rights were engaged, specifically whether he had a reasonable expectation of privacy in the information complained of and, if so, whether in all the circumstances, the interests of the Claimant as regards that private information took precedent over the competing Article 10 rights of freedom of expression of the Defendant.

Did the Claimant have a reasonable expectation of privacy?

The Judge ruled that the Claimant did have a reasonable expectation of privacy and that the information in the Article was, in principle, protected by Article 8 of ECHR.

In his reasoning, the Judge relied upon the following factors:

1. 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 Article is therefore private information.

2. The relationship between the Claimant and Ms Storey was a private one. They had not been seen in public as a couple.  On Ms Storey’s evidence, knowledge of their relationship was confined to their circle of family and friends.  The Article had been billed as an “exclusive”.

3. The Claimant had carefully considered how much of his private life he wished to expose in the media and his own public statements concerning his private life did not mean he had forsaken a reasonable expectation of privacy in connection with his relationship with Ms Storey.  The Claimant had not, before the Article, disclosed anything about this specific relationship to the media.

4. The other “kiss and tell” stories that had been published about the Claimant were not published with his consent and so could not deprive the Claimant of a reasonable expectation of privacy.  The fact the Claimant had not brought proceedings over those other stories could not be taken as his tacit acceptance of another article, let alone another article about a different woman.

5. The Claimant’s recklessness in his behaviour was not such as to mean he had no reasonable expectation of privacy.

The Judge similarly concluded that the Photograph and the Text Messages constituted information which in principle was capable of protection and whose publication would, subject to the balancing test, infringe the Claimant’s rights under Article 8. The Text Messages being examples of “correspondence” under Article 8 and the Photograph, although characterised as “borderline”, showing the Claimant and Ms Storey in a private hotel room.

The Balancing Exercise

The Court used the intense focus test as per 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 HRA 1998, but acknowledged the fact that case law has made clear that neither Article has automatic precedence over the other.

The following public interest defence arguments were significant on the facts:

1. The public interest in correcting a false image.  Interestingly the Judge held that whilst the truth of a publication is not usually relevant in a privacy claim, in the specific context of a defence of public interest based on correcting a false image, truth is important.  Here the Claimant 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 Ms Ellison.

2. The Claimant’s appointment as captain of England and his perceived status as a role model to a certain section of the public.  The Judge said that the phrase “role model” is somewhat ubiquitous but that it was clear from the relevant case law and statements that have been made in the media that there are many who believe footballers in general and the captain of the England football team at least are role models.  The Judge did not have to decide whether the Claimant was fit to be England captain but held that the Article reasonably contributed to the debate as to his suitability for that role.

3. The fact that the Claimant’s relationship with Ms Storey impacted upon his professional life. By the Claimant’s own admission, on occasions, he either did or tried to, sneak Ms Storey into a hotel where he and the other members of his team were staying, against the rules set by the team’s management. This unprofessional conduct could legitimately be used to call into question his suitability for the role of England captain.

4. As distinguished from Campbell v MGN, the Defendant was entitled to place the relationship between Ms Storey and the Claimant in context and, as such, the Judge held that the detail of the relationship contained in the Article was not an excessive intrusion into the Claimant’s private life.

5. In relation to the Photograph, the Judge held that the Claimant did have a reasonable expectation that such a photograph would remain private but its unexceptionable character meant that the right was of relatively low importance. Overall the circumstances in which the Photograph was taken (openly by one of the other people in the hotel room with the Claimant and Ms Storey) and the anodyne nature of the photograph itself (it showed the Claimant and Ms Storey fully clothed, not even engaging with each other as the Claimant is pictured speaking on a mobile phone) together justified the Defendant’s use of the Photograph and provided an element of credibility to the story. Distinguishing from Campbell, the Judge held that the Photograph did not cause the Claimant unjustifiable additional distress.

Finally, the Judge ruled that overall “the balancing exercise favours the Defendant’s right of freedom of expression over the Claimant’s right of privacy” and he dismissed the action. 

RPC acted for the Defendant in this case.

See further chapter 3 of The Privacy Law Handbook