For all his prowess on the pitch, John Terry may eventually be remembered as much for his impact on English law as for his contribution to English football.
His unsuccessful bid to gag reporting of his alleged extra-marital affair with lingerie model Vanessa Perroncel has nudged our nascent privacy law in a more liberal direction.
The media were alarmed in 2008 when Mr Justice Eady decided privacy law should not take account of questions of morality, and that reports of former motor racing boss Max Mosley’s sado-masochistic sex sessions with prostitutes in a Chelsea basement should not have been published.
But another top media law judge, Mr Justice Tugendhat, restored some faith in freedom of expression last month when he rejected Chelsea defender John Terry’s infamous application for a privacy injunction.
The two judges’ apparent difference of approach to privacy is abundantly clear from the following quotes.
In Mosley’s case, Eady J said: “It is not for the state or for the media to expose sexual conduct which does not involve any significant breach of the criminal law.
“That is so whether the motive for such intrusion is merely prurience or a moral crusade. It is not for journalists to undermine human rights…merely on grounds of taste or moral disapproval.”
In contrast, in rejecting Terry’s injunction application, Tugendhat J commented: “Freedom to live as one chooses is one of the most valuable freedoms. But so is the freedom to criticise, within the limits of the law, the conduct of other members of society as being socially harmful, or wrong.”
Mr Justice Tugendhat went as far as to suggest that social progress had been achieved since the seventeenth century as a result of newspapers being able to criticise people’s conduct, even if such conduct were not so reprehensible as to be actually unlawful.
He added: “It is as a result of public discussion and debate that public opinion develops.”
After five barren years in which English privacy law has become steadily more restrictive, largely at the hands of Eady J, editors and commentators have enthusiastically welcomed Tugendhat J’s new steer.
They needed no further encouragement before splashing with extensive allegations about Terry’s personal life, which last week saw him stripped of the England football captaincy.
Where does all this leave our law of privacy, particularly in relation to ‘kiss and tell’ journalism whose death had been widely foretold?
On one level, the media genuinely have something to celebrate from Terry’s case.
Article 8 of the European Convention on Human Rights, from which privacy law stems, contains an exception which permits intrusion into private life where that is “necessary in a democratic society for the protection of…morals.” And for the first time in years, a High Court judge has gone out of his way to emphasise the importance of public discussion and criticism of perceived immoral behaviour.
Indeed, Mr Justice Tugendhat’s comments on morality seem so pointed that one wonders whether he might have decided Max Mosley’s case differently from Eady J.
On the other hand, the media should not get carried away.
First, rather than being a resounding endorsement of freedom of expression, Terry’s case was primarily a refusal to grant an injunction on the basis that the application was procedurally and evidentially flawed. No prior notice had been given to any interested media organisations and the judge felt the application was more an attempt to protect Terry’s reputation and the financial interests of his commercial sponsors than to protect privacy.
Second, the judge made it clear that if he had been presented with evidence of a threat to publish “any intrusive details” about Terry’s alleged affair, he might well have granted a privacy injunction. And as things stand, Terry remains technically free to sue for damages for infringement of privacy over the salacious coverage that has ensued.
Despite his comments about freedom to criticise immoral conduct, there is nothing in Tugendhat J’s ruling to suggest he would not uphold a subsequent privacy claim by Terry if the media have overstepped the mark, particularly with intrusive photographs.
For now, though, the upshot is that after the controversially amoral approach of Eady J in Mosley’s case, another judge has put questions of morality back at the heart of our privacy law and given the media scope for raising public interest defences for reports about allegedly immoral personal behaviour, including even ‘kiss and tell’ stories.
It is a significant legal development of relevance to both regional and national media. But until there is more certainty in this area of law, editors would be well advised to continue treading cautiously because of the consequences of making the wrong judgment.
Comments
John Murphy (09/02/2010 13:03:04)
Eady J is not the Sherrif, he is interpreting the law in the same way as any other judge. In the Mosely case, as in the John Terry case, the judges rules that neither could use privacy as a way around the defences to libel. However in Mosley Eady J followed the ruling in Campbell regarding the VIDEO, as in Campbell the issue was a photograph which intruded. Morality does have a role in libel and injunctions cannot be used to prevent a story reaching the light of day (where a defence of justification stands any chance of succeeding anyway) it can only prevent publications of intrusive images.
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