Newspaper prevented from publishing information about former loyalist murder suspect

18 October 2010 by Rosalind English

An injunction sought against the publication of certain information has been granted by the High Court in Northern Ireland under Article 2 (the right to life). The claimant also invoked the Prevention of Harassment (NI) Order and sought damages for misuse of private information. The Article 8 claim was only partially successful and the harassment claim was dismissed.

The claimant, who had been accused and subsequently cleared of murdering a journalist working for the defendant newspaper sought to prevent the publication of details relating to his address, his partner, his wedding plans and other personal  information and photographs.  The judge held that the publication of this information, in the light of threats from loyalist paramilitaries and dissident republican paramilitaries, would result in a “real and immediate risk” to the claimant’s life.

An interesting analysis of the case, and particularly of the two-stage approach taken by the judge in determining the balance between the right to privacy and the right to freedom of expression, can be found on the media law blog Inforrm.

As the Inforrm post explains, the judge followed the principles set out in decision of the Court of Appeal in Murray v Express Newspapers [2008] EWCA Civ 446, noting that there were two stages to the inquiry.  First, the claimant had to established a “reasonable expectation of privacy”.  He described the second stage in these terms:

the balance between the right to privacy and the right to freedom of expression. That balance includes consideration of a public interest that justifies publication of the material in question and whether the degree of intrusion generated by the publication is proportionate to the public interest. [para 23]

The public interest that the defendant asserted as justification for publication was essentially threefold:

First of all the lifestyle of the plaintiff arising from the proceeds of his criminal conduct is said to be of public interest in the exposure of crime. Secondly it is said that the plaintiff is a womaniser and there have been three women named in connection with the plaintiff throughout the series of articles, although the present objections relate to the present partner. Third it is said that the plaintiff’s association with his partner is an instance of hypocrisy.  The plaintiff’s partner is said to be Catholic and therefore the defendant contends that it is hypocritical of the plaintiff, as a member of the LVF, which has targeted Catholics, to be the partner of a Catholic. [para 33]

The judge accepted these arguments in relation to publication of the claimant’s wedding plans and the identity of his partner, but not in respect to the religious affiliation of his partner nor any details relating to her child, where the claimant’s “reasonable expectation of privacy” trumped the public interest in publication by the defendant.

In their comment, Inforrm observe that, in determining the Article 8 issue, the judge did not conduct the conventional “parallel analysis” – looking in turn at the justification for interference with the Article 8 and Article 10 rights in play – but rather employed a two-part approach: considering whether there was a public interest justifying publication and then whether the “intrusion” was proportionate to that interest.

Although this may, in substance, be the same test as that analysed in the English authorities it gives rise to a number of difficulties when the judge applied it to the facts.  In particular the judge did not analyse either the degree of intrusion involved (the Article 8 question) nor the “value” of the expression (the Article 10 question) and did not conduct any proper “proportionality” analysis.  The judge appears to treat the fact that the interference with Article 8 rights was for a legitimate aim as decisive of his “public interest” question.   The absence of proportionality analysis makes it difficult to understand the operation of the second part of his test,

So, the author points out, in relation to the question of the identification of the plaintiff’s partner, the judge found that the articles concerned the alleged “criminal lifestyle” of the plaintiff – which was a “legitimate public interest aspect” [34].   In relation to identification of the partner the judge simply says – “It is almost inevitable that a spouse or  partner who shares such a plaintiff’s lifestyle will be drawn into any reporting of that lifestyle”

This is a non-sequitur.  The question is not “whether the partner will be drawn into reporting” but whether there is a proper justification for identifying the partner.   It is difficult to see how such justification can be established on the facts of this case.  Reports of the type mentioned by the judge could plainly be made without the partner being named.  Bearing in mind the Article 2 background and the nature of the reports it seems very difficult to justify naming the plaintiff’s partner in this case.

The article also questions the dismissal of the harassment claim, (one of the first to be made in trial against a newspaper).  The judge disposed of the harassment argument without a parallel analysis of Article 8, which suggested that he (wrongly) considered Article 8 not to be engaged:

The plaintiff’s rights must be balanced against those of the press, with neither taking precedence.  On the one hand, the “speech” involved – involving exposing allegations of serious crime and political violence – is obviously of very high value.  On the other, the interference with the plaintiff’s rights was also serious. Bearing in mind the fact that some of the press coverage was inaccurate and involved misuse of personal information, it is difficult to see how the judge was able to conclude that the entire course of conduct constituted by the press articles was justified.

Read more:

• Previous posts on freedom of expression
• Can you have the ‘wrong’ skin colour? (and other interesting questions)
• Failed Binyam Mohamed privacy case highlights open justice trend

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