By Dominic Ponsford
England footballer Ashley Cole has launched an extraordinary libel action against the News of the World and The Sun over stories about un-named bi-sexual players.
Cole has filed writs against News Group Newspapers for harassment, breach of privacy and libel.
The libel part of the claim is unusual because Cole is not named in any of the stories. And the breach of privacy part of the claim is understood to be for "false privacy" — meaning that even though he does not accept that the stories are true, they are still claimed to have breached his privacy.
The first of the contentious NoW stories was published on 12 February headlined "Gay as you Go". It alleged that "two bisexual stars made some very dirty phone calls — using a mobile as a gay sex toy".
It claimed that two Premiership footballers, one capped several times for England, and a music industry figure were caught on camera involved in a "homosexual orgy".
On 19 February, the News of the World published a follow-up story that claimed to show two of the men involved in the alleged orgy. It captioned the picture "Music Figure A and Player A", but heavily obscured the photograph.
The News of the World stories were followed up by The Sun, which made similar allegations, but again did not name the footballers involved.
Since then many bloggers and websites have tracked down what they believe to be the original, unobscured, picture that appeared in the News of the World. One supposed original is displayed on the Pink News website. The photo shows a dance music DJ with Ashley Cole.
Apparently, the News of the World lightened the skin of the two men in the version of the picture it used and removed an expensive watch from one of the men's wrists — possibly to reduce the risk of the original picture being identified.
It is believed that Cole may be suing the News of the World not so much over the original article, but the effect it has had by causing many internet sites to identify him as the person referred to in the article.
Lawyer Niri Shan, from Taylor Wessing, said: "Just because you don't name someone in a story, doesn't mean they are not identified.
"If you talk about a high-profile Premiership footballer, for example, who plays for Arsenal, that could only refer to a few people. Sometimes you are better naming someone so you don't accidentally end up libelling someone else."
On the privacy issue, he said: "The argument goes ‘how can you say something is private information if it is untrue?' Privacy actions normally relate to private information that is true."
However, he added that this is a grey area of the law and that judges have yet to lay down firm guidelines on whether or not untrue statements can infringe someone's privacy.
The News of the World and Cole's lawyers both declined to comment.
In February 2005, the News of the World had another run-in with Cole when it revealed that Chelsea had made a secret approach to him to leave Arsenal.
This week the "tapping up" scoop was named story of the year by the Sports Journalists' Association. It led to Cole being fined £100,000.
Last December, pop star Robbie Williams accepted an apology and reported damages of £200,000 over stories in The People newspaper and Star magazine that accused him of covering up homosexual encounters.
It was judged to be defamatory, not that Williams was gay, but to claim that he had deliberately deceived the public by presenting a false image.