Belfast Telegraph

Walter Greenwood: Lifting of John Terry's gag will worry other celebrities

The England captain's case is good for newspaper readers' right to know, argues Belfast Telegraph legal adviser Walter Greenwood

Everyone expects some privacy in life. No one wants matters which are strictly private and personal to be made known to the world at large.

What happens, however, where exposure in the media of the private conduct of famous people would lower the respect in which they are held and shake public confidence in them?

This is the dilemma facing the judges when celebrities attempt to suppress publication.

Oscar Wilde wrote that the truth is never simple. The rights of privacy and of freedom to tell that truth are certainly not simple.

The battle in the courts between the two rights has frequently gone in favour of privacy.

Even worse for the media and the public's right to know is the so-called 'super injunction' which prevents publication of the fact that any injunction has been sought and granted.

Last week, however, victory twice went to freedom of expression and the right to know.

Mr Justice Tugendhat, a High Court judge in London, refused to continue a ban on publishing allegations that John Terry - the £150,000-a-week, much-admired, England and Chelsea footballer - had an affair with the girlfriend of a team-mate, a French underwear model.

In another case earlier in the week, the new Supreme Court had removed the blanket anonymity - which some condemned as absurd - protecting four suspected terrorists who were challenging a decision by the Treasury to freeze their assets.

Lord Rodger, in that court, said there were powerful public interest rights that justified curtailing the rights of the four.

In Britain there has never been an unqualified right to privacy - either by Act of Parliament, or at common law.

It has been argued that the judges, in a series of actions, were tipping the scales away from freedom of expression and were, in effect, creating a law of privacy which did not previously exist.

Contrast this with the situation in the United States where the truth about almost anyone can be published as long as it is not likely to lead to a successful libel action.

Using the law of confidentiality, the model Naomi Campbell won what was really a privacy action against the Daily Mirror, which had reported that she had secretly attended Narcotics Anonymous meetings - even though she had denied being a drug-user. Similarly, Max Mosley succeeded in an action over sado-masochism.

These and other actions have been fought over two clauses in the European Convention on Human Rights - now encompassed in UK law under the Human Rights Act.

Article 8 of the convention puts it: 'Everyone has the right to respect for his private and family life, his home and his correspondence.

The convention balances this by means of Article 10 which confers the right of freedom of expression and the right to communicate information.

The two articles spell out that, in a democracy, restrictions on free speech can be justified only where there is an overriding necessity to prevent demonstrable harm to others.

Mr Justice Eady, another judge in the High Court in London, has said that the only practical way of balancing the two rights is to leave it to the judges to weigh up the competing interests. This is what the judges did last week.

The John Terry case tipped the scales towards freedom of expression. Mr Justice Tugendhat's fellow judges will have noted his opinion that commercial interests, including sponsorships, may have been the main concern in Terry's attempt to seek anonymity. It could also have been the case in past revelations about sportsmen.

Mr Justice Tugendhat's decision may lead to other celebrities seeing uncomfortable truths about their private lives exposed in future.

Walter Greenwood is |honorary consultant to McNae’s Essential Law for Journalists (Oxford University Press, £19.99)


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