Ferdinand v MGN – a “Kiss n’ Tell” public interest defence succeeds – Lorna Skinner

2 October 2011 by Guest Contributor

Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB) – Read judgment

In the first “misuse of private information” trial against a newspaper since Max Mosley in 2008, Mr Justice Nicol dismissed a claim brough by England and Manchester United footballer Rio Ferdinand against the “Sunday Mirror”.

The Judge found that, although the claimant’s Article 8 rights to private and family life were engaged, there was a public interest in correcting a false image promoted by the claimant.  It was also held that the article contributed to a debate as to the claimant’s fitness to be a role model in the light of his appointment as England football captain.

The media will see the case as an important turning point in the evolution of privacy law and a vindication of their “right” to expose the behaviour of “cheating footballers”.  Others will see the decision as a disconcerting departure signalling a return to the approach taken in cases such as Woodward v Hutchins ([1977] 1 WLR 760) and Flitcroft([2003] QB 195).

The Facts

Mr Ferdinand is a well known professional footballer with a distinguished playing career and the frequent subject of tabloid stories.  The case concerned a story in the “Sunday Mirror” on 25 April 2010 concerning his relationship with Carly Storey, a woman he had first met the 1990s when they were both teenagers.   According to the article they had drifted apart, then resumed contact for a time.  The last time they had met was in 2005 but they had been in communication by telephone and text message between 2007 and early 2010.

Their last contact was in February 2010, shortly after Mr Ferdinand was appointed the captain of the England football team.  This followed the sacking of John Terry after his notorious unsuccessful injunction application ([2010] EWHC 119 (QB)).

After their last contact, Ms Storey went to Max Clifford and, two months later, the article was published.  She was paid £16,000.  No prior notification of the publication was given to Mr Ferdinand or his advisors.

The Decision

The judge applied the standard “two part test”: first was the information in question in principle protected by Article 8?  Second, if so, the Court has to conduct a “balancing exercise” to decide which of Articles 8 and 10 (the right to freedom of expression) should prevail [38] to [42]

The defendant argued that the information in the article was not subject to a “reasonable expectation of privacy” because in earlier times Mr Ferdinand and Ms Story had met in public places [45].  It was also argued that

the Claimant is a public figure in a broad sense and, as such, he must accept and expect that his actions will be more closely scrutinised by the media …. [In addition] explicit details of the Claimant’s sex life were already in the public domain and the Claimant could no longer have a reasonable expectation of privacy in this type of information [47]

These arguments were rejected by the Judge who held that, the information in the article was, in principle, protected by Article 8 [51].   He said that it was

not necessary to consider whether, in an extreme case there would be some merit in the argument that widespread and extensive discussion by a person of similar aspects of their private life would disentitle them to have a reasonable expectation of privacy.  The present case comes nowhere near that extreme [58]

The Judge, therefore, went on to consider the “balancing exercise”.  He noted that “one facet of the public interest can be correcting a false image, referring to the PCC Code and to Campbell v MGN [2004] 2 AC 457 [65].

The Defendant argued that the Claimant had “projected an image of himself as a reformed character” and the published information showed that this was false [72].   The Claimant argued that no such “image” had been projected and that, in contrast to the Campbell case there was no “public lie” which required exposure.

The Judge held that there was a “public interest in this article” [84].  As a result of an interview given in the “News of the World” some years earlier the Claimant had

projected an image of himself and, while that image persisted, there was a public interest in demonstrating (if it were to be the case) that the image is false  [85]

A further factor in the case was the Claimant’s appointment as captain of the England football team [87].  The Judge said that appointment as England captain “carried with it an expectation of high standards” [89] and that there were “many who would … see the captain at least of the England football team as a role model” [90]

The Judge held that the article “reasonably contributed” to a debate as to whether the Claimant was suitable for role of England captain: “his relatively recent past failings could legitimately be used to called into question his suitability for the role” [98]

He concluded that, overall “the balancing exercise favours the Defendant’s right of freedom of expression over the Claimant’s right of privacy”. [105]

Comment

The editor of the “Sunday Mirror”, Tina Weaver, understandably welcomed the decisionsaying

We are pleased the judge ruled that Mr Ferdinand had perpetuated a misleading public image and the Sunday Mirror was entitled to correct this impression.  There has never been greater scrutiny of the media than now, and we applaud this ruling in recognising the important role a free press has to play in a democratic society

The decision does not, however, sit comfortably with contemporary perception of privacy law: what was published concerned a “relationship” which had begun when the parties were teenagers but where they had, at the time of the article, not met for nearly 5 years.  The “false image” that was being corrected was, to say the least, rather vague: that of being a “family man” who had cast aside his past wild ways.

There are obvious difficulties with the judge’s analysis.  In contrast to the Naomi Campbell case, it was not suggested that the Claimant had actually made any false public statement.  Rather, what was being corrected was the “image” that he was “reformed” – an image which was said to be falsified by text message contact with someone he had known since he was a teenager.

The decision in relation to “role models” is also surprising.  It appears that the judge took the view that because some people think that an England football captain is a “role model” then anyone who accepts the job must accept a greater degree of intrusion into his private life.  The publication of the article some months after the Claimant’s appointment was said to contribute to a debate as to his suitability to be this kind of role model.

Overall the decision seems to represent a retrograde step in the development of privacy law.  The “public interest” identified was very weak.  What has been protected is not, in any true sense, “public interest journalism” but is much more akin to what Baroness Hale once called “vapid tittle tattle”.

The Judge refused permission to appeal but the Claimant indicated that he would renew his application before the Court of Appeal.  It will be interesting to see what that court makes of the judgment.