Why public figures are no longer safe from kiss and tells

Celebrities, sports stars and other high-profile public figures are now increasingly at risk of being exposed in tabloid kiss and tells after last week's Sun victory against ex-England manager Steve McClaren, according to some of the UK's leading media lawyers.

The paper saw off an eleventh-hour injunction bid from McClaren on Saturday, 18 August, to publish details of his extra-marital affair in its Sunday edition after it successfully argued the story was in the public interest.

Many were surprised by The Sun's success given that kiss and tells have become increasingly uncommon in the UK press.

In recent years courts have often granted injunctions when balancing the right to respect for family life (under Article 8 of the Human Rights Act) and freedom of expression (Article 10).

But last week's McClaren decision – coupled with the case of Rio Ferdinand last September – appears to give free reign to the press if a newspaper can prove there is a public interest in the expose.

Ex-England captain Ferdinand lost his privacy action against the Sunday Mirror over an affair story when Mr Justice Nicol found the balancing exercise of the HRA came out in favour of the paper's right to freedom of speech

"At one level it was a 'kiss and tell' story,'said Justice Nicol. 'Even less attractively, it was a 'kiss and paid for telling' story, but stories may be in the public interest even if the reasons behind the informant providing the information are less than noble."

At the time of writing the McClaren judgment had not been handed down, but The Sun's managing editor David Dinsmore told Press Gazette: 'The judge was very clear that he was a public figure and that when he was England manager he was holding a high-profile job. What came through was you can't have your cake and eat it.

Caroline Kean, partner and head of litigation for the law firm Wiggins, said that after a spate of so-called super-injunctions in early 2011, the last year had 'been good from the point of view of the press".

'Everybody knows that for the preceding ten years, privacy law has extended further and further to the point where it was quite difficult to run any kiss and tell,'she said.

'I think anybody who has watched the cases over the last year will see it is not a surprise.'

Kean said the McClaren ruling was 'very consistent'in the light of recent cases.

'Had it been applying to just over a year ago, I think he [McClaren] would have expected to get an injunction and probably would have been granted it,'she continued.

'You are never going to get rid of the privacy law – we have a privacy law and it is here to stay, but privacy isn't the ultimate trump card.

'This decision is a further welcome confirmation that the courts are determined to achieve real balance between Article 8 and Article 10, and that where there is a genuine public interest, ‘kiss and tell' stories continue to have an important part to play in ‘the public's right to know'."

Keith Ashby, head of dispute resolution at Sheridans, said the case shows the 'weight which can be attached to the fact that somebody might be considered a role model...A similar approach was adopted in relation to Ferdinand.'

Mark Stephens, a partner at Finers Stephens Innocent, said the McClaren case 'marks a change in judicial temperature and approach to these kinds of cases".

He suggests the former England manager would 'probably have been better off spending that money with a PR man", and that the case was 'reflective of the swing away from the knee-jerk privacy censorship",

'These sexually incontinent footballers and their managers can't expect to continue to have no regard to other people when they're chasing women, or in pursuit of women, and then go in hot pursuit to the stand with a writ if they get caught out by the newspapers.'

He added: 'I think the judge is to be warmly praised for the very bold stance and marking that the abusive approach of people like John Terry, Ryan Giggs, and Steve McClaren in running off to the courts are not things which the court will put up with for very much longer.

'They have more important things to do. The way that you get good press in this area is to keep it in your trousers."

Rebecca Toman,a solicitor at Carter-Ruck, told Press Gazette: "I am not of the view that this judgment indicates a radically sharp move towards freedom of speech.

"Once an expectation of privacy has been established, the law requires that a balancing exercise is conducted between privacy and freedom of speech. An intense focus is required on the comparative importance of those rights claimed. Depending on the specific facts at play in any one case the focus can shift in either direction.

"On the facts of this case it seems that the focus shifted the balance in favour of the press. What this judgment and the likes of last year's Ferdinand Judgment do highlight is that where there is even a suggestion of public interest, those in the public eye are perhaps now more than ever at risk of being front page news.

"Does the McClaren judgment mean the return of the ‘Kiss and Tell'?. In my view 'Kiss and Tell' has never really left, it is just been packaged differently."

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