On 5 August 2015 Mrs Justice Laing granted an interim injunction in favour of two applicants to restrain publication of material relating to the First Applicant ("A1"). The Applicants' request for anonymity in the judgment was also granted.
A1 is a prominent and successful professional sportsman. In his career he has held positions of responsibility in his sport and has appeared in various advertisements for product endorsements. He is now married to the Second Applicant ("A2"). X is a former girlfriend of A1 who wanted to recount her relationship with A1 to a publication owned by the Respondent. The relationship with X took place a few years earlier and before A1 and A2 were married, but whilst they had been a couple. X alleged that some encounters between her and A1 took place while he was preparing for sports events which was against club rules. X and the Respondent intended to criticise A1's conduct in this respect. A1 argued that the publication of the proposed material at this time would cause embarrassment to both himself and his wife and was a violation of his right to privacy pursuant to Article 8 of the Human Rights Act.
An applicant seeking a privacy injunction will need to show that he has a reasonable expectation of privacy in the circumstances. If it is determined that the applicant has a reasonable expectation of privacy, the Court will then be required to balance the two competing rights in issue: the applicant's right of respect for private and family life under Article 8 of the Human Rights Act and the publisher's right to freedom of expression under Article 10. Neither right has precedence over the other and resolution of the conflict requires an "intense focus on the facts" as per the test set out in McKennitt v Ash.
Section 12 of the Human Rights Act also applies to interim injunctions, in that the court may not grant relief unless an applicant is "likely to establish that publication will not be allowed", i.e. is more likely than not to succeed at trial.
Finally the court must take into account the extent to which it is, or would be, in the public interest for the material to be published.
Expectation of privacy
Laing J held that material about a person's sexual life (whether it relates to a transient or more durable relationship) was in principle protected by Article 8.
In the circumstances of the case, Laing J also gave weight to evidence which showed that the Applicants did not openly conduct their relationship in the public eye.
Against this evidence the Respondent argued that X conducts her entire private life in public and therefore A1 knew that there was a risk that by engaging in a relationship with X details of it would be made public. However, X's own evidence stated that X and A1 conducted their affair discreetly at the time it occurred, avoiding CCTV and public spaces. Furthermore, X's evidence showed that A1's relationship was more than transient as X still kept in contact with A1 well after the relationship ended.
The judge considered the extent to which A1's status as a role model for sportsmen and aspiring sportsmen could impact on his reasonable expectation of privacy. It was acknowledged that A1's position does not turn him into an example in every sphere of his existence, and therefore the judge stated that a discreetly conducted affair from years past was not inconsistent with his public role.
Accordingly, it was held that the Applicants did have a reasonable expectation of privacy.
Regarding justification for interfering with the Applicant's Article 8 rights by the exercise of the Respondent's Article 10 rights, the Respondent argued that it was in the public's general interest that the story be published as it would show that A1 is a hypocrite. The Respondent argued that A1's involvement in the affair with X showed conduct which broke rules and that he deceived his then manager. The judge did not see that these arguments were capable of fulfilling the public interest criteria as it had been years since the incidents took place.
The Respondent also argued that A1 had profited from his advertisement appearances under the image of him as a "clean-living family man" and the publication was an antidote to this false impression. Therefore, it was in the public interest to expose conduct which is socially harmful. Laing J rejected this argument. First, the material advanced by the Respondent on this point did not lead to the conclusion that A1 had been misleading or untruthful. Secondly, although the judge pointed out that a court was hardly equipped to arbitrate on what is considered to be moral conduct, she could not see how it could be described as socially harmful when the conduct had no ramifications beyond the three people who were affected by it.
The judge ruled that an injunction restraining the publication of the material was a proportionate means of achieving a legitimate aim.
Given the specific facts of the case, the granting of an injunction is not surprising as it simply followed well established principles from past case-law. Laing J's comments regarding the scrutiny of a 'role model's' conduct are likely to be particularly welcome for individuals seeking privacy injunctions. Laing J was at pains to point out that any scrutiny of a role model's conduct should bear a reasonable relationship to the profession or sphere for which he or she is a role model. A1 was not a role model "for cooks, or for moral philosophers". The 'role model' argument is frequently advanced by publishers in such privacy injunctions in order to justify publication of material and Laing J's judgment provides some helpful guidance in this respect. It echoes and expands on the judgment of Hale LJ in the seminal case of Campbell v MGN, who held that "it might be questioned why, if a role model has adopted a stance which all would agree is beneficial rather than detrimental to society, it is so important to reveal that she has feet of clay."