Keeping a lid on private lives

Keith Schilling argues that the decision to allow a newspaper to expose a footballer as an adulterer ironically accepts an actionable right to privacy

The Court of Appeal decision last week in the enigmatically-entitled case of A v B, C & D expressly accepts, if not establishes, an actionable right of privacy in English law.

It remains to be seen whether it owes its existence to breach of confidence or article 8 of the European Convention of Human Rights (ECHR) - respect for private life.

More likely, it is the progeny of both but its paternity is a relatively arid debate.

The ruling - which set aside an earlier injunction - will mean that a Premiership footballer (A) can be identified by the Sunday People (B) and publicly exposed as an adulterer, having had extra-marital relations with two women (C and D).

That is, unless within three weeks the claimant is able to persuade the House of Lords to grant him leave to appeal.

The case also decided that because an injunction has been refused it does not necessarily follow that the claimant cannot recover damages subsequently for the invasion of privacy, reflecting Lord Denning's conclusions in a breach of confidence action in the 1970s.

In other words, the present case does not establish that unwanted revelations by former sexual partners are legally permissible, but that on the facts of this case, in deference to Blackstone, there is to be 'no prior restraint' of the press.

This leaves two important issues unresolved.

First, are we failing to comply with our article 8 obligations if we allow publication of private information subject only to the payment of damages at a later date? It is doubtful in many privacy cases that damages are an adequate remedy, since to pursue that remedy a claimant would need to re-publicise, through a trial, the very information he had wished to keep private.

Second, if the publication of admittedly lurid details of the sex lives of the famous is a genuine aspect of freedom of expression, is the obligation to pay damages subsequently not inconsistent with that freedom? The existence of a damages claim will operate as a de facto prior restraint.

Even in the absence of an injunction it will have a 'chilling effect'.

More than 30 years ago, the Japanese writer Mishima ruefully observed the lionising of baseball players and television stars.

Do we as a society look to football players for moral guidance? The Court of Appeal decided that footballer A had never 'courted publicity', but that footballers are role models for young people and undesirable behaviour on their part can set an unfortunate example.

This appears to be part of the reasoning for setting aside the earlier injunction.

Leaving aside the fact that but for the Court of Appeal's decision the 'young people' concerned would not become aware of this 'undesirable behaviour', is it the policy of the law to expose 'undesirable behaviour' (by withholding an injunction)? It was in this case, after all, private lawful sexual conduct between consenting adults.

Controversially, the Court of Appeal also found that if such injunctions are granted there may be fewer newspapers and that this would not be in the interests of the public.

However, freedom of expression is not an absolute nor a pre-eminent right, as it is under the First Amendment to the US Constitution.

What is clearly called for under the ECHR is a balancing of the respective rights.

Thomas Paine, in his 1776 pamphlet Common Sense, said that a long habit of not thinking a thing wrong gives it a superficial appearance of being right, and raises at first a formidable outcry in defence of custom.

When one considers that jurors in libel actions tend to award compensation against the press at the top end of the scale, this suggests perhaps that we do not yet have the press that we want or deserve.

Overall, the decision has advanced the case of privacy but it has raised questions which will need to be resolved by another court.

Given the importance of the underlying issues, it is to be hoped that the House of Lords will find the opportunity for review.

Keith Schilling is the senior partner at London media law firm Schilling & Lom and Partners