This month the Court of Appeal, in a landmark ruling, discharged the injunction granted last year against Mirror Group Newspapers which had prevented publication of a story concerning extra-marital affairs of a Premiership footballer.
That Injunction itself had been granted by the judge primarily on the basis that he considered that a confidential relationship existed between the footballer and the two women with whom he had brief relationships.
Issues of privacy were of fundamental significance in that earlier ruling.
Following the overturning by the Court of Appeal of the injunction obtained by the Michael Douglas, Catherine Zeta-Jones and OK! against Hello!, a great deal of confusion arose as to whether a new and distinct law of privacy had been created following enactment of the Human Rights Act in the autumn of 2000.
Shortly before last Christmas, the Court of Appeal clearly indicated that it did not consider that any such distinct law presently existed. This has been reaffirmed by the footballer’s case, in which the court has now held that where the protection of privacy is justified, an action for breach of confidence would provide the necessary protection.
Furthermore, in this latest decision, the Court of Appeal has set out factors which will be of particular significance when such a claim is brought.
In particular, where an individual is a public figures (for example, a celebrity or politician) he is entitled to have his privacy respected in appropriate circumstances but must recognise that because of his public position he has to expect and accept that his actions will be more closely scrutinised by the media, whether or not he has courted publicity.
If he has courted public attention, he will have less ground to object to the intrusion that follows. Further, someone in the footballer’s position is, the court states, inevitably a figure in whom a section of the public and the media would be interested.
Therefore, the judge who granted the injunction was not correct to say that there was no element of public interest in the newspaper’s proposed publications. The Court of Appeal also emphasised the importance of giving the Press Complaints Commission Code of Practice careful consideration.
On the specific issue of whether there was in fact a duty of confidentiality on the part of the women with whom the footballer had extra-marital affairs, the Court of Appeal found that there was significant difference in the nature of confidentiality that attached to what was intended to be a permanent relationship from that which attached to the sort of relationship that the footballer had been involved in here.
This decision provides clarity for the media when facing claims against them for invasion of privacy.
Christopher Hutchings is a partner in the media and entertainment group at Charles Russell