While the Chelsea Team and fans were celebrating on Saturday afternoon and evening their achievement of winning the Premiership and FA Cup double, the FA were seeking an injunction over the threatened publication of secretly taped private conversations between its Chairman Lord Triesman and an intimate confidante Melissa Jacobs.  Lord Triesman gave Ms Jacobs his views about the bid process for the World Cup in 2018 and his speculation about what Spain and Russia would do in order to improve their chances. Ms Jacobs was secretly taping the conversations and then sold her story to the Mail On Sunday.

The Mail on Sunday seems to have notified the FA of the story at some time on Saturday either before or after the start of the FA Cup final at 3pm.  The FA subsequently sought an injunction to restrain the threatened publication presumably on the grounds of commercial confidence. It is not suggested that Lord Triesman himself applied for a “privacy injunction”.

The Daily Mail has reported that at some time during the injunction hearing the judge recused himself owing to a connection with Lord Triesman, with the result that it was by then too late to apply to another Judge and the application for an injunction was abandoned

Later on Saturday evening the Mail On Sunday published their article and, on Sunday, Lord Triesman resigned. A subsequent Daily Mail article gave more detail and nearly everyone expressed their concern about the damage to the England’s World Cup bid. Some blamed Lord Triesman but most  blamed the Mail On Sunday.  The comments on the Mail on Sunday website are significant. One example is sufficient;

“This is insane! The daily mail is understandably unpopular as it is. I’ve just got back from a night out, so my sense of judgement may be out – but are THEY REALLY LAUNCHING AN ‘EXCLUSIVE STORY’ TO TRY AND RUIN OUR BID TO HOST THE WORLD CUP?!!! AND THEY’RE PROUD OF IT?! WHAT IS THE THINKING HERE?!!! DO THEY REALLY THINK BRITISH READERS WILL APPRECIATE THIS?!!! Astonishing.”

Gary Lineker has now resigned his column at the Mail On Sunday in protest at the damage to the World Cup bid.    There is no court judgment but a number of interesting legal issues emerge from the few available facts.

Notification.

First there is the issue of notification. Max Mosley has argued in ECHR that there should be a legal requirement of prior notification. The UK Government has opposed this as have numerous intervening media organisations. The ECHR decision is awaited with interest.  This issue was discussed by the the House of Commons Select Committee for Culture Media and Sport and in previous postings.

A few years ago the Sunday Newspapers would nearly always give notice on Friday afternoon and sometimes a day or so before. There is some suggestion that the covert tape-recording took place some days before the Saturday and if so then notification should have been given in the course of Friday afternoon at the latest so that all parties could have the opportunity of legal representation and a fair and full hearing. This was particularly important because there were a number of highly significant interests at stake; the Article 10 rights of Jacob and the Mail On Sunday; the privacy rights of Lord Triesman and the confidentiality rights of the FA and potentially the contract for the World Cup.

Privacy and Confidentiality

Whatever the exact proximity of the relationship Lord Triesman’s  privacy rights were clearly engaged as were the confidentiality rights of the FA. It appears from the Court of Appeal cases of Lord Browne V Associated and the Prince of Wales v Associated that such speculations are either private since they derived from an intimate relationship and/or confidential insofar as they derive from confidential FA business information.

Public interest considerations

There were also obvious public interest considerations in play as well, namely the public interest in knowing the views of the head of the FA as to the workings and process of the World Cup bids for the 2018 World Cup games.  It does not appear that the accuracy of this speculation is in this case relevant to the consideration of whether there was a public interest. There may also have been article 10 rights as well such as the right of Jacob to express her views about  her relationship.  The resolution of the conflict of these rights would involve a careful consideration of the facts with all the evidence that would be available to the Court and “parallel analysis” of the competing rights at stake, in accordance with the House Of Lords 2004 decision in Re S.

Whatever the various legal formulations of public interest, a good benchmark test for public interest are the readers comments on the Mail articles. Most of them are highly critical of the Mail on Sunday. In addition in today’s Independent, Gary Lineker explains why he believes the Mail On Sunday publication was against the national interest and warns the media that kiss and tells may sell a few copies but undermine the morale of the players of the national football team.

The Mail on Sunday defended its reporting of the Lord Triesman story in a statement;

“We would like to make it clear that Melissa Jacobs put details of her relationship with Lord Triesman on the internet, and made her recording of her conversation with him, without the knowledge or involvement of the Mail on Sunday. There is no question of entrapment, the paper was simply reporting events that had already taken place.”