Justice Tugendhat said ex-RBS bank chief executive Sir Fred Goodwin and his workplace lover had no “reasonable expectation of privacy” as regards the bare fact of their affair and the lover’s job title – largely because Sir Fred was a “public figure.”
English privacy law has generally held that sexual relationships are inherently private matters on which publication is only lawful if justified having regard to the public interest and the countervailing right to freedom of expression.
Faced with the law’s two-stage test (is there a reasonable expectation of privacy, and, if so, does the right to freedom of expression outweigh the right to privacy?), the media often find it difficult to show there is a genuine ‘public interest’ in publication – defined in law as whether publication would make a contribution to a debate of general interest.
But Justice Tugendhat’s characterisation of Sir Fred as a “public figure” for whom there was no reasonable expectation of privacy over the fact of his affair will give the press useful ammunition for future cases where prominent individuals try to gag the publication of questionable aspects of their personal conduct.
His ruling is controversial because it means different types of people are entitled to different degrees of privacy.
The judge, who is the High Court’s senior media law judge, said there had been “some recognition” in case law of the concept of a public figure; that is, “those who exercise public or official functions”.
He cited, as an example, the following remarks of Lady Hale in the well-known privacy case that involved supermodel Naomi Campbell in 2004: “The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy.
“Without this, it can scarcely be called a democracy at all.
“This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life.”
Building on this foundation and other precedents, Justice Tugendhat said: “The extent to which men in positions of power benefit from that power in forming relationships with sexual partners who are less senior within the same organisation is also a matter which is of concern to an audience much wider than the work colleagues of either partner in the relationship.
“In the present case, Sir Fred Goodwin had a reputation as an exceptionally forceful businessman.
“And he was Chief Executive of one of the largest publicly quoted companies in the United Kingdom, doing business on a global scale.
“Whatever limits there may be to the legal concept of a public figure, or of a person carrying out official functions, in my judgment Sir Fred Goodwin came within that definition.”
The judge said the workplace lover would therefore not be able to show that she and Sir Fred ever had a reasonable expectation of privacy as regards the bare fact of their relationship. He continued the gagging order that prohibits publication of her name, but allowed her job description to be published.
He said he would have allowed her job description to be published even if the pair had had a reasonable expectation of privacy, because it was “in the public interest that newspapers should be able to report upon cases which raise a question as to what should or should not be a standard in public life.”
This ruling puts senior officials and executives under pressure on the preliminary issue of whether they are entitled to any privacy at all as regards dubious aspects of their personal conduct.
If deemed to be “public figures,” they may fail to establish a reasonable expectation of privacy, and even if they scrape over the hurdle on that issue, they would still have to defeat any ‘public interest’ arguments put forward by the media at the second stage of the two-part test.
If the judge’s approach survives any appeal, the media will welcome having two good bites at the cherry in this way against any “public figure” who seeks a privacy injunction.