Appeal Court upholds right of The Sun to report on terrorist past of TV talent show contestant's father

A young man who managed to win a place on the BBC talent show Let It Shine has failed in his second bid to obtain an order banning The Sun on Sunday newspaper from publishing a story reporting that his father was a convicted terrorist.

Declan Arthurs first applied for an injunction to the High Court in Belfast, arguing that publication would amount to the tort of misuse of personal information, as it was material in relation to which he had a reasonable expectation of privacy.

That application was rejected by Mr Justice Burgess in a written judgment in September.

Arthurs then took his case to the Court of Appeal, seeking to argue not only the privacy point but also that publication would be a breach of section 10 of the Data Protection Act as it amounted to “sensitive personal data” because it identified his racial or ethnic origins.

But the Data Protection Act point was dropped when the Court of Appeal made clear that it was unwilling to listen to arguments which were not raised during the first instance hearing.

Arthurs applied to appear in Let It Shine in the autumn of 2016, then went to an audition in Belfast before moving on to the next stage, an audition in London.

After singing three songs at the London audition, he told the court, he was asked by one of the producers whether there was anything in relation to his family which would result in publicity, to which he replied that his Uncle Declan had been murdered in Loughgall.

In January this year The Sun had published a story reporting that Arthurs’ father was former IRA Brigade Commander Brian Arthurs, who had been jailed for 25 years for terrorism but released after five years under the Good Friday Agreement, and was later convicted of a £250,000 mortgage fraud.

In the Court of Appeal Lord Justice Deeny, sitting with Sir Declan Morgan, the Lord Chief Justice, and Sir Richard McLaughlin, said Mr Justice Burgess’s decision was based on five facts:

  •  Declan Arthurs was and is of full age and not in law a child.
  • He was not some young person upon whom public attention had fallen through no choice of his own e.g. by some spontaneous act of bravery or excellence. He wished to be a performer. He entered the competition to seek to perform on television. He obtained that ambition and performed very creditably. He therefore put himself in the public eye.
  • He was expressly asked about “anything in relation to my family that would result in publicity” according to his own affidavit. He did not say that he wished to have no inquiry about his family but keep that entirely private. That might have had an adverse effect on his chances of being selected for the next broadcast stage of the competition. Rather he chose to refer to his uncle’s death without disclosing his father’s convictions, which were at least as relevant.
  • His relationship to his father would have been well-known in the neighbourhood in which he lived.
  • The link to the father was disclosed in the Irish News newspaper circulating in Northern Ireland prior to publication by The Sun, albeit without setting out his convictions.

Lord Justice Deeney went on: “It appears to us that in the light of the disclosed facts the learned judge at first instance was fully entitled to conclude that the appellant had no legitimate or reasonable expectation of privacy restraining a newspaper from linking him, after he appeared on television in a creditable way, with his father’s discreditable personal history.

“The father’s convictions were in the public domain as was his relationship to the applicant, who voluntarily entered the public domain.

“We find that the appellant therefore was correctly found to have failed at the first hurdle he faced.”

It was therefore unnecessary, Lord Justice Deeny said, for the court to consider further the judge’s findings under the second stage, the balancing exercise between Articles 8 and 10 of the European Convention on Human Rights, covering the rights to respect for privacy and family life and the right to freedom of expression.

But he added: “The appellant faced a formidable obstacle there in attacking what was clearly an exercise of discretion by the judge set out in a careful and measured way by him.”

As the Data Protection Act element of the case had been withdrawn, it did not need to consider the “novel and belated submission” that this information was sensitive personal data because it identified Arthurs’ racial or ethnic origins, the judge said.

But he added: “That would be another considerable hurdle for this applicant to surmount, even before consideration of section 12 of the Act and its protection for journalistic publication.”

 

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