Case Law: King v Sunday World, Northern Ireland privacy and harassment claim

15 10 2010

We have now been provided with a copy of the judgment of Mr Justice Weatherup in the case of King v Sunday World.  We discussed the news reports of this case last month.   The claim was under Article 2 of the Convention, for misuse of private information and harassment by a newspaper. 

The claimant, Drew King had formerly been charged with murdering a Sunday World journalist, Martin O’Hagan, who was shot dead near his home in Lurgan, County Armagh, in September 2001. The murder charges against him and his co-accused were withdrawn in July 2010.  Mr King sought an injunction to prevent publication of his address and other information about his family circumstances.   The Article 2 claim was successful, the privacy claim succeeded in part but the harassment claim was dismissed.

The first claim considered by the judge was for an injunction to restrain the publication of the plaintiff’s present or future addresses under Article 2 of the European Convention on Human Rights on the basis that such publication would result in a “real and immediate risk” to the plaintiff’s life.  The judge was satisfied “that there have been threats against this plaintiff for a number of years from loyalist paramilitaries and from dissident republican paramilitaries” [17].  He concluded that these threats presented a real and immediate threat to the plaintiff’s life and that, as a result, his present and future addresses should not be published [18-19].

Second, the judge considered the claim for misuse of private information. He principles set out in decision of the Court of Appeal in Murray v Express Newspapers ([2008] EWCA Civ 446) noting that there were two stages to the inquiry.  First, the plaintiff had to established a “reasonable expectation of privacy”.  He described the second stage in these terms:

“the balance between the right to privacy and the right to freedom of expression. That balance includes consideration of a public interest that justifies publication of the material in question and whether the degree of intrusion generated by the publication is proportionate to the public interest“. [23]

The claim concerned information five categories:   (1)  the address of the plaintiff; (2) the wedding plans of the plaintiff and his partner; (3)   the partner’s details which include her identification and her workplace and her family members.  Fourthly, the child’s details which concern the identification, the religion and the christening of the child.  (5) the photograph of the plaintiff and his partner. [25]

As the address of the plaintiff had been dealt with under Article 2, the judge did not consider it further.  In relation to the second category, the judge was prepared to assume that there was a a reasonable expectation of privacy in relation to particulars of the wedding.   The defendant claimed that there was a public interest justification for the publication of this material because it concerned “the plaintiff’s drug dealing lifestyle and the ability to adopt expensive plans for his wedding”. The judge accepted this and said this:

The proportionality aspect concerns whether or not the private details that were given were necessary for the purposes of the story in relation to the investigation of the crime.  I accept that the details were proportionate“. [29]

The third area was information concerning “the identity, work and family” of the plaintiff’s partner.  The judge accepted that, although she was not a party, “the publication of details of family members of a particular person may engage the Article 8 rights of that person” [30].  He noted that provisions of the Editor’s Code of Practice on the Reporting of Crime to the effect that “innocent relatives” have particular protection under the code.    The judge accepted that there was a reasonable expectation of privacy in respect of the information in this category.  He then considered the “public interest” arguments advanced by the defendant:

“What is the public interest that the defendant asserts as justification for publication of the material?  The defendant relies on a number of matters. First of all the lifestyle of the plaintiff arising from the proceeds of his criminal conduct is said to be of public interest in the exposure of crime. Secondly it is said that the plaintiff is a womaniser and there have been three women named in connection with the plaintiff throughout the series of articles, although the present objections relate to the present partner. Third it is said that the plaintiff’s association with his partner is an instance of hypocrisy.  The plaintiff’s partner is said to be Catholic and therefore the defendant contends that it is hypocritical of the plaintiff, as a member of the LVF, which has targeted Catholics, to be the partner of a Catholic“. [33]

In relation to “identity” he accepted that the articles were concerned with the plaintiff’s “criminal lifestyle” and went on to say

It is almost inevitable that a spouse or  partner who shares such a plaintiff’s lifestyle will be drawn into any reporting of that lifestyle. I am satisfied that there is a legitimate public interest in the  identity of such a spouse or partner of the primary subject of such an article who is said to profit from crime, subject to any particular circumstances that would render their inclusion in the publication inappropriate” [34].

In contrast, he held that published details about the partner’s workplace and the members of the partner’s family “was not warranted on any of the grounds relied on by the defendant” [35]  He took the same view in relation to the “religious affiliation” of the plaintiff’s partner.  His conclusion in relation to this category of information was as follows:

Overall in relation to the plaintiff’s partner, I have accepted that the balance of interests favours publication of her identity as an aspect of the reporting of the plaintiff’s lifestyle. However I am also satisfied that the balance of interests does not support publication of details in relation to her workplace, her family members or her religious background as these details are irrelevant to the justification for the identification of the plaintiff” [37].

Fourthly, there was information about the plaintiff’s child “including the identification and religion of the child and the christening of the child“.  The judge accepted that there was a reasonable expectation of privacy in relation to this information and, referred to the Editors’ Code of Practice.  This stated that in cases involving children under 16 editors must demonstrate an exceptional public interest to override the normally paramount interest of the child.  He rejected the defendant’s justification argument.

The fifth category was photographs of the plaintiff and his partner which was taken on private property.  The judge said

The justification for publication is that the photograph accompanies the articles and shares their justification.  I have found that the identification of the plaintiff and his partner was justified. I am satisfied that their identification by photograph as equally justified

He held that the publication was proportionate as the photographs did not show any embarassing or inappropriate conduct.

The judge then turned to the harassment claim.  Reference was made to the well known English case of Thomas v Newsgroup Newspapers Ltd [2001] EWCA Civ 1233.  The judge accepted that the series of articles in question constituted harassment [42].  The issue was whether the conduct of the defendant, in publishing these articles claimant – some of which were inaccurate and wrongly contained private information – was “reasonable”.  The judge’s conclusion was that

“The present case is not attended by some exceptional circumstance which justifies sanctions and the restriction on the freedom of expression that they involve. Nor does the publication of the series of articles constitute an abuse of the freedom of press which the pressing social needs of a democratic society require should be curbed.  Overall, on the question as to whether or not this series of articles constituted reasonable conduct, I am satisfied that they did and that they did not amount to harassment of the plaintiff” [46]

Comment

This is a rare example of a decision in a privacy case following a full trial.  Although the factual background is extremely unusual, a number of interesting points of general interest arise.

First, there is the approach of the judge to the “balancing exercise”.  He did not conduct the conventional “parallel analysis”looking in turn at the justification for interference with the Article 8 and Article 10 rights in play – but rather employed a two-part approach: considering whether there was a public interest justifying publication and then whether the “intrusion” was proportionate to that interest.

Although this may, in substance, be the same test as that analysed in the English authorities it gives rise to a number of difficulties when the judge applied it to the facts.  In particular the judge did not analyse either the degree of intrusion involved (the Article 8 question) nor the “value” of the expression (the Article 10 question) and did not conduct any proper “proportionality” analysis.  The judge appears to treat the fact that the interference with Article 8 rights was for a legitimate aim as decisive of his “public interest” question.   The absence of proportionality analysis makes it difficult to understand the operation of the second part of his test.

Thus, for example, in relation to “wedding plans” the judge states that there is a public interest “in relation to the investigation of crime” and then, on proportionality, simply says “I accept that the details were proportionate” [29].   It is difficult to understand why it is proportionate to reveal details of a person’s wedding plans (as opposed, for example, the fact that an expensive wedding was planned).

The analysis is even more difficult to follow in relation to the question of the identification of the plaintiff’s partner.  The judge found that the articles concerned the alleged “criminal lifestyle” of the plaintiff – which was a “legitimate public interest aspect” [34].   In relation to identification of the partner the Judge simply says

“It is almost inevitable that a spouse or  partner who shares such a plaintiff’s lifestyle will be drawn into any reporting of that lifestyle”

This is a non-sequitur.  The question is not “whether the partner will be drawn into reporting” but whether there is a proper justification for identifying the partner.   It is difficult to see how such justification can be established on the facts of this case.  Reports of the type mentioned by the judge could plainly be made without the partner being named.  Bearing in mind the Article 2 background and the nature of the reports it seems very difficult to justify naming the plaintiff’s partner in this case.

Secondly, there is the decision on harassment.  As far as we are aware, this is the only “harassment by the press” case to have been decided at trial.   Having found that the defendant’s conduct was, prima facie, “harassment” the judge considered the “reasonableness” defence on the basis that the plaintiff had to establish some “exceptional circumstance” justifying sanctions on the press [46].  We suggest that this is not the right approach.   If there is harassment then Article 8 is engaged and a “parallel analysis” must be conducted.  The plaintiff’s rights must be balanced against those of the press, with neither taking precedence.  On the one hand, the “speech” involved – involving exposing allegations of serious crime and political violence – is obviously of very high value.  On the other, the interference with the plaintiff’s rights was also serious.  Bearing in mind the fact that some of the press coverage was inaccurate and involved misuse of personal information, it is difficult to see how the judge was able to conclude that the entire course of conduct constituted by the press acticles was justified.

About these ads

Actions

Information

One response

23 10 2010
FERGUS O'ROURKE

Terrific analysis. I agree with your criticisms of the decision.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




Follow

Get every new post delivered to your Inbox.

Join 3,711 other followers

%d bloggers like this: