Keeping it confidential

The recent failed attempt by Sebastian (now Lord) Coe to prevent publication in two newspapers of the details of a 10-year affair with Vanessa Landers has been heralded as an indication that the Naomi Campbell judgment is not as media-unfriendly as may have been feared, and does not necessarily spell a new era in privacy law.

Whether that is truly the case remains to be seen, but also of significance is the reminder of the way in which the courts approach applications for injunctions, and the potential effect of making an application regardless of success on the part of the claimant.

Lord Coe claimed that the injunction was sought to protect his children and some might argue that matters of marital fidelity should as a matter of principle be a private matter.

That may be so, but public figures must expect their private lives to be open to legitimate scrutiny by virtue of their public positions. Lord Coe has set eight world records, was Chief of Staff to William Hague, is a Conservative peer, and has recently been appointed Chairman of London’s bid to host the Olympic Games. As a public figure recently in the news he could not expect the right to keep the information private.

The Campbell judgment has muddied the waters to some extent and may have given Lord Coe’s legal team false encouragement. But slightly different considerations apply when seeking to restrain publication than do at a full trial. And Campbell was a slightly different case.

Since the incorporation of the Human Rights Act 1998, the threshold a claimant has to pass to protect confidential information is set fairly high.

Section 12(3) of the HRA expressly states that a court must not grant the application unless satisfied that the claimant is “likely” to succeed at trial, and the court must have “particular regard” to the importance of the Convention right to freedom of expression.

What Mr Justice Fulford was here concerned with was whether, if full arguments were aired on both sides, Lord Coe would win a permanent ban.

Where a temporary injunction is sought, the court does not have the benefit of full detailed evidence as it would at trial and the balancing act is conducted often at very short notice -and is inevitably based on incomplete evidence.

The test was whether he had a real prospect of successfully showing that publication should not be allowed and whether the balance of convenience favoured the grant of an injunction.

Mr Justice Fulford declined the request for an injunction and weighed up the competing interests of three parties in so deciding – those of Lord Coe, Vanessa Landers and the newspapers.

He decided that Lord Coe’s right to privacy was outweighed by Ms Landers’ right to free speech (taking account of the fact that the affair was extramarital, had lasted a long time and some of the facts were already in the public domain), and the Sunday Mirror’s right to tell its readers about the habits of those in the public eye (no different to Campbell it may be said – even the parties there accepted that the fact of Campbell’s drug addiction coupled with her public pesona and her public statements entitled The Mirror to set the record straight).

It seems that the British courts are not yet prepared to extend the right of privacy over medical treatment, as in Campbell, to the extramarital life of public figures. The possibile harm to Lord Coe by virtue of publication does not appear to have persuaded the Judge either. This can be distinguished from Campbell where the likely harm was to her health – perhaps of greater significance.

The denial of the injunction shows that the freedom of the press still carries serious weight in these types of cases.

A failed attempt to secure an injunction often does little more than fuel further interest in the story. Furthermore, it is often argued that it merely gives substance to what might otherwise have been a slightly tentative story. By claiming an injunction on the grounds of breach of confidence or privacy, the story by definition must surely be true.

Even if an injunction is granted, the claimant usually becomes subject to an article about the paper being gagged. Generally, therefore, attempts at prior restraint are relatively rare.

However, the failed injunction does not deny Lord Coe the ability to pursue the matter to trial, should he be so advised.

Monica Bhogal is a solicitor in the Media and Entertainment Department at Charles Russell.

Monica Bhogal

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