A case of “caveat celebritas” – celebrity beware?

The High Court [Ferdinand v MGN Ltd [2011] EWHC 2454 (QB)] recently dismissed footballer Rio Ferdinand’s claim against the Sunday Mirror for damages after the newspaper published what Nicol J called a “kiss and paid for telling” story about the ex-England captain.

Ferdinand claimed that the article infringed his right to privacy, was a misuse of his private information and a breach of confidence. The Court agreed that the information in the article was private and capable of protection under the European Convention on Human Rights.

However, the key issue was whether the alleged interference with Ferdinand’s rights under Article 8 of the Convention was in the public interest and, on balance, justified vis-à-vis Article 10, namely that everyone has the right to freedom of expression. In relation to that issue, the Court found in favour of the newspaper.

Article 8 of the Convention provides that everyone has the right to respect for his private and family life, his home and his correspondence. Article 10 provides that everyone has the right to freedom of expression. The rights frequently conflict; neither takes precedence over the other and both are qualified on the basis of public interest.

In this case, the Court was tasked with deciding whether the information contained in the newspaper article was private and capable of protection under Article 8 and, if so, whether, in all the circumstances, Ferdinand’s right to privacy should yield to the newspaper’s right of freedom of expression.

Noting that knowledge of the relationship was confined to Ferdinand’s circle of family and friends, the Court decided that the information contained in the article was private and in principle protected by Article 8. A photograph of Ferdinand and his mistress taken in a hotel room and text messages between the pair were also found to be covered. Nicol J commented that “Sexual behaviour in private is part of the core aspects of individual autonomy which Article 8 is intended to protect” and “the Claimant’s recklessness in his behaviour was not such as to mean that he had no reasonable expectation of privacy”.  

However, in assessing whether this analysis meant that Ferdinand’s Article 8 rights prevailed over the newspaper’s Article 10 rights, the Court held that public interest was the decisive factor. Nicol J said “there is a difference between what is in the public interest and what is of interest to the public”: public interest is not limited to the exposure of illegal conduct and the court must take into account all of society’s views to make an objective decision.

The Sunday Mirror claimed that there was public interest in demonstrating that Ferdinand was not the reformed character or “family man” he led the public to believe he was in his previous dealings with the press (Ferdinand had conducted interviews with other newspapers and written an autobiography where he admitted to past indiscretions but now recognised his responsibility to be a role model in his behaviour on and off the pitch) – and the Court agreed that the public interest can involve correcting a false image.

It also found that the article contributed to a debate regarding Ferdinand’s suitability for the role of England captain – a role which carried “high expectations and responsibilities”. Ferdinand’s predecessor in the role, John Terry, had of course himself been embroiled in tabloid scandal after an alleged affair with a teammate’s fiancée, and he had lost the England captaincy as a result.

Finding in favour of the Sunday Mirror, the Court agreed that there was public interest in the article and, on balance, the newspaper’s Article 10 rights prevailed. The Court refused Ferdinand permission to appeal, although the footballer’s legal team has indicated his intention to take the application to the Court of Appeal.

This is the latest in a run of cases involving the uncovering of celebrity indiscretions and the balancing of competing interests under Articles 8 and 10 of the Convention. In this case, Ferdinand had no prior warning about the proposed article and he was unable to apply for an injunction to prevent its publication. Interestingly, the judgment came at the same time as the European Court of Human Rights rejected Max Mosley’s request to overturn the UK’s decision to reject his application for the law to be amended to compel newspapers to notify individuals before publishing private material about them.

The case adds to the commentary as to what factors may tip the balance in favour of the newspapers publishing the latest celebrity exposé. What is particularly interesting in this case is the significance attributed by the court to Ferdinand’s past courting of the press in order to build his public profile. The message appears to be: one cannot court the media and expect not to be courted (or, as the case may be, caught out) in return. Alternatively, perhaps the courts are developing a new principle of “caveat celebritas” – celebrity beware! 

Joanna Ludlum, dispute resolution partner, Baker & McKenzie; associate Nicola Mead-Batten and trainee Fiona Lockhart