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    Thursday, 9 September 2010

    Understanding Rooney: privacy and prior publicity

    The recent spate of publications regarding the private life of Wayne Rooney is difficult to understand. It has been suggested that he had some notice of what was to come but nevertheless did not seek interim relief to prevent publication. In a detailed post coupled with an interesting follow-up, the editors of the Inforrm blog express some surprise as the stories appear to involve a clear misuse of private information and there does not appear to be any substantial public interest. The brouhaha about brand development and maintenance is just that.

    The Inforrm editors also quote suggestions made elsewhere online to the effect that the identity of the duty judge - Judge Tugendhat as opposed to Judge Eady - may have influenced the choice not to proceed, and that the legal pendulum may be swinging back so as to permit kiss-and tells. Like them, I don't think either of these arguments is particularly tenable. Having recently had occasion to read through all the decided privacy cases from the last decade or so, I haven't detected any particularly obvious divergence between the views that tend to be expressed by those two judges.

    Much of what has been published in this instance, and on a number of other occasions of late is certainly prima facie actionable. So what is going on. For me there are three explanations: (a) the media have something else on Rooney and he has accepted this spate of stories in exchange for non-publication of something worse (hmmm, 0.0001% likely, and what could that be?); (b) the media are publishing in the full expectation that he will not subsequently sue (this might explain the seeming 'in for a penny, in for a pound' mentality that has now seen the tabloid pages carry Rooney's mug for five consecutive days, but it doesn't explain why he didn't seek an injunction), or (c) there is more to the argument regarding prior publicity that the 'public interest' alone.

    Focusing on (c), remembering that every privacy application will involve 'an intense focus on the facts of the case', and relying on Tugendhat J in Terry (a decision questioned by some) here is an attempt at explanation. Prior publicity is relevant to the claim for misuse of private information in a number of places:
    • first, at the first stage of analysis when the judge is determining whether a privacy interest is engaged at all;
    • second, when determining whether there is a publication interest argument to be weighed against privacy in the balancing exercise, but also
    • thirdly, in determining how strong the privacy interest in play actually is.
    If the privacy interest can be shown to be weak, then it is at risk of being outweighed by even a minimal countervailing freedom of expression argument. As the PCC Code notes, there is a public interest in freedom of expression itself (although one might add that such a public interest will usually be outweighed by any significant privacy component). [One is reminded here of the decision of the Irish Supreme Court in the sources case Keena, in which what the judges considered to be the very minimal expression interest held by the journalists was nonetheless sufficient to outweigh the nugatory interest of the Tribunal claimant in receiving the information sought - hardly a great day for freedom of the press as it was supposed to be by some]

    Hence, prior publicity can be important not just for the support it might offer to a public interest argument (eg correction of specific misrepresentation or exposure of hypocrisy), but also in providing evidence as to the valuation placed on the information by the particular claimant. If past revelations suggest that the claimant generally plays fast and loose with such matters, it becomes difficult to contend that such information has now become somehow especially private in character. Other explanations for interim applications - for example, protection of commercial value - become more tenable. This was the view of Tugendhat J in Terry [2010] EWHC 119 (QB) (at [127]), and of Lord Phillips MR in Douglas v Hello! Ltd [2005] EWCA Civ 595 (at [107]). The latter explained that:
    to the extent that an individual authorises photographs taken on a private occasion to be made public, the potential for distress at the publication of other, unauthorised, photographs, taken on the same occasion, will be reduced.
    It is also a view set out in the second cumulative supplement to Tugendhat and Christie (at 150):
    if a claimant has sold stories about one or more aspects of his or her private life to the media or otherwise courted publicity about that private life, this will surely be a relevant circumstance to be taken into account in the proportionality assessment… voluntary exposure to prior publicity of a similar nature might evince a lack of concern for disclosure of intimate personal facts, thus reducing the weight to be accorded to the claimant’s rights. It might also diminish the likely damage.
    Contrast those cases in which claimants have taken steps to defend their intimate details and therefore might expect the courts to be more ready to assist them (See, for example, the efforts made by the (representative) claimants in McKennitt v Ash [2005] EWHC 3003 (QB), and Murray v Big Pictures (UK) Ltd [2007] EWHC 1908 (Ch)).

    I confess that I haven't followed the past public musings of Wayne Rooney esq, but the notion that he has just told his wife 'to get over it, as its no big deal' suggests that this argument may have been floatable here. Either that, or he likes to have sex wearing a Chelsea shirt (see (a) above).

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