Freedom of Speech 1 John Terry 0 – LNS v Persons Unknown, High Court

The recent tidal wave of the developing laws of privacy has been halted with the High Court’s recent refusal to continue an injunction stopping the reporting of the indiscretions of a footballer. John Terry was the England football captain and it was natural that the newspapers would want to report his extra-marital affair with an England team-mate’s girlfriend or ex-girlfriend. After all, it’s hardly a captain’s job to look after his team-mates in such a close manner, no matter how closely they hug and kiss when they score (on the football field). Terry obtained an initial injunction to stop the story spreading on the grounds of it infringing his rights to privacy under the Human Rights Act, but that injunction was not continued by the High Court.

In a welcome ruling for the downtrodden UK media, the High Court decided that what Terry was really concerned about was protecting his sponsorship and endorsement deals rather than his privacy rights. To obtain an injunction in privacy cases, a claimant has to establish that he had a reasonable expectation of privacy, there was no public interest in disclosure and an injunction would be a proportionate remedy. The judge said that it was important to bear in mind the right to freedom of expression under the Human Rights Act, as well as the right to privacy. While respect for private life meant people should live freely according to their own choices, their conduct did not have to be illegal before it could be criticised in public. The freedom to live as you choose is a valuable freedom, but so is the freedom to criticise people’s actions (within the boundaries of the law) for being socially harmful or wrong. Even if Terry’s rights to privacy would prevail, an injunction would not be a necessary remedy, as damages would be sufficient to compensate him for loss of money from his reduced sponsorship contracts.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This case shows just how much of a mess the law of privacy is in this country – although admittedly not quite as much of a mess as the private lives of certain high-profile footballers. Following the recent groundbreaking privacy win for Max Mosley when he was able to claim damages for publication of his sexual exploits and the injunction granted in favour of a married Premier League manager to stop details of his brothel escapades being published, it was thought the British public might never get to read gossip again. As this judgment shows, that’s not necessarily so. However, the dividing line remains unclear and it is creating an enormous headache for the media to know what they can publish and what they can’t. The law of privacy badly needs clarifying.’