Ferdinand v Mgn Ltd (Rev 2)

Private information concerning sexual relationships, correspondence and associated photographs may be protected by Article 8 even where aspects of the claimant’s earlier conduct have received publicity. Prior publicity does not, without more, remove a reasonable expectation of privacy.

Where Articles 8 and 10 are engaged, neither has automatic precedence. The court must intensely focus on the comparative importance of the particular rights. Public interest is distinct from public curiosity. It may include correcting a false public image and informing debate about the suitability of a person who has voluntarily assumed a prominent role carrying expectations of conduct. Publication must nevertheless go no further than reasonably justified by that interest.

The claimant, a professional footballer and England captain, sued the defendant newspaper publisher over a printed and online article describing his longstanding relationship with Carly Storey, including alleged sexual encounters, text messages and a photograph. He relied on misuse of private information, breach of confidence and infringement of privacy. The defendant relied on freedom of expression and contended that the article corrected the claimant’s publicly projected image as a reformed family man and contributed to debate about his suitability as England captain.

The court had to decide whether the information was in principle protected by Article 8 and, if so, whether the Article 10 public interest in publication outweighed the claimant’s privacy rights.

1. Article 8 protection. The information was in principle protected by Article 8. The claimant had a reasonable expectation of privacy in the sexual relationship, the text messages as correspondence, and the photograph taken in a hotel room. Earlier publicity about his reputation, and his own public statements about past conduct, did not amount to a waiver of privacy in this particular relationship. A public figure’s status bears more directly on the balancing exercise than on whether Article 8 is engaged.
2. Balancing Articles 8 and 10. Neither Convention right had precedence. The court applied an intense focus to the comparative importance of the particular rights. The decisive consideration was whether the publication contributed to a debate of general interest, rather than whether readers might find it interesting. Public interest was not confined to exposing unlawful conduct and could include correcting a false image.
3. False image and public role. The claimant had deliberately projected an image of himself as reformed, settled and committed to family life. The article could reasonably contribute to debate about whether that image was false and whether he was suitable to be an England captain, a role which a substantial body of the public regarded as carrying responsibilities off the pitch. The fact that publication followed the appointment by several months did not remove that interest.
4. Extent of publication. The defendant was entitled to place the relationship in context. The photograph was private but unexceptional, non-covert and of limited additional significance; it provided modest corroboration and did not create the additional harm found in Campbell v MGN Ltd. The article did not excessively intrude into privacy. The absence of prior notice was objectively irrelevant to the balancing exercise.
5. The claimant’s claim in misuse of private information therefore failed. No separate case in breach of confidence was advanced on a basis that would succeed if the privacy claim failed. The action was dismissed.

First-instance judgment. The judgment records that the Court of Appeal had recently decided Christopher Hutcheson (formerly known as ‘KGM’) v News Group Newspapers Ltd, but this was not an appeal in the present proceedings.