Earlier this month we posted about a privacy injunction obtained by the singer Van Morrison against the News of the World.   Mr Justice Gillen’s judgment in the case of Lee, Morrison and X v News Group Newspapers ([2010] NIQB 106) has now been made public.   It appears that this is the full judgment – although reference is made to a “confidential annexe containing the proposed article along with 12 photographs.  The plaintiffs were Gigi Lee, who described herself as a “business lady”, Van Morrison and “X”, Ms Lee’s child.

There were three defendants to the claim: New Groups Newspapers Limited, publishers of the “News of the World”, Sunday World and a Mr Tony Maguire.   Sunday World took no part in the case and the application against it was dismissed (although, apparently, unsuccessfully renewed the following week, see our post here).

Mr Maguire was described as a “tradesman” employed by Mr Morrison who had been the source of the story “but now wished that the information be not published” [7]   He had agreed to provide information to a “News of the World” report, Ciaran McGuigan but no financial arrangement was concluded and he also wished to restrain publication.

On 11 September 2010, Mr Justice Treacy had granted an emergency interim injunction and had made an order anonymising “X”.   The hearing before Mr Justice Gillen was inter partes, with the “News of the World” being represented by leading counsel.

The impugned article referred to a number of personal details of and concerning the plaintiffs including

  • P2’s residence (the residence) and considerable detail as to value, layout and furnishings together with the input into its management by P1.
  • Staff residing at the residence.
  • Detailed physical descriptions of P3.
  • The relationship between P1 and P2.
  • Visitations to the residence by P1 and P2 together with daily activities and deliveries thereat.
  • Visits by P2 to his wife and child (contained in the photographs) [10].

The judge had to consider a considerable body of affidavit evidence: from the first two plaintiffs, from a “News of the World” photographer and a journalist, from Mr Maguire and from a photographer on behalf of the plaintiffs.

The plaintiffs contended that they had a reasonable expectation of privacy in relation to the article and photographs and that the balance came down in their favour.  Insofar as details of P1 and P2’s private lives had been in the public domain in the past, this was a considerable time ago and had been the result of an unauthorised entry on P2’s website.  Although P2’s PR consultant had, incorrectly, stated that P2 did not know P1 this was an unauthorised statement which had been corrected within 3 days [19].

The “News of the World” argued that the article was confined to the existence of the relationship and did not reveal private or intimate details.  The relationship and the birth of X were in the public domain.  There was no proper explanation of how the PR consultant had made his statement.  Finally, it was argued that

“There is a strong public interest argument in favour of the publication of the article and photographs in that there is reasonable evidence to suppose that P2 misled the public about his knowledge of P1.  Accordingly there is an obvious public interest in a false and misleading statement being countered or corrected”. [20]

The Judge considered the applicable legal principles – dealing with section 12 of the Human Rights Act, the PCC Code and the analysis of section 12(3) in Cream Holdings v Bannerjee ([2005] 1 AC 253).   He accepted that the case was one in which both Articles 8 and 10 were engaged and where he had, therefore, to weigh the competing claims according to the approach in Re S (A Child)(Identification: Restrictions on Publication) ([2005] 1 AC 593).

In relation to “reasonable expectation of privacy” the Judge observed

“the home address of an individual is information the disclosure and use of which that individual has a right to control in accordance with Article 8 of the Convention (see Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 (QB) at paragraphs 53 and 56).

I consider that the protection of private life extends beyond the family circle and includes a social dimension.  Individuals, even if they are known to the general public, must be able to enjoy a “legitimate expectation” of and respect for their private life.  Thus celebrities are entitled to such protection from unwarranted intrusion”. [32-33]

He was in doubt that the “first hurdle” had been crossed and that there was a “reasonable expectation of privacy” in the circumstances of the case. [34]

The Judge then went on to consider the role of the press and the question of public domain.  In relation to the latter he expressed the view that

“the test is not simply whether the information is generally accessible.  The court must ask whether the information sought to be restrained is already in the public domain to the extent, or in the sense, that the publication could have no significant effect.” [38]

The Judge concluded that there was no general public interest in publishing the contents of the impugned article or photographs and that as a result the plaintiffs were likely to establish at trial that the publications were not allowed. [40].  He said

“I do not believe that the public have a legitimate interest in knowing the private affairs of P1, P2 and P3 as outlined in the impugned article and the photographs.  The public does not have a legitimate interest to know where the plaintiffs are, where they live or how they behave generally in their private lives however well known P2 or for that matter P1 may be.  Such details as are contained in this article and photographs make no contribution to a debate of genuine general or public interest.  Whilst it may well be that a particular readership may have an interest – prurient or otherwise – in certain aspects of the lives of celebrities such as P2, this is not the same as saying that these are matters of public interest.  This article and these photographs go beyond the margin of appreciation allowed to a free press.  They constitute an unacceptable intrusion into the private lives of these plaintiffs“.  [42]

He described matters such as the value and location of the house, the work carried out there, details of the furnishings, the state of his marriage as “vapid tittle tattle”:

“P2 and for that matter P1 may well live their lives partly in public but that does not mean the public have a right to intrude to this degree into their private lives“. [43]

He held that situation was analogous with that in the Von Hannover case. [44]  Furthermore, although some information had been in the public domain, fresh revelations to different groups could still cause distress and damage. [45]  He did not accept that the “News of the World” had shown that P2 had made untrue pronouncements about his private life. [46]

In relation to the photographs of X taken in a public place

“the clandestine taking and proposed publication of photographs of P1 and P2 accompanied by mention and physical descriptions in the impugned article of the child render this an intrusion into the private life P3” [47].

As a result, the Judge granted an injunction preventing the publication of the article and photographs.

Finally, the Judge indicated that, he was “not presently minded to grant a “super injunction” against persons unnamed” on the basis that this was “too wide an ambit” becuase the Article 10 rights had to be looked at in each individual case. [51]

Comment

This judgment is, in general, a straightforward application of the established principles derived from the English case law  – not a single case from Northern Ireland is referred to in the judgment.  The judge reiterates and reinforces some well known principles in relation to “public domain” and the need for a contribution to a debate of general interest.  The result is not surprising – the story appears to been based on the “revelations” of a disloyal “tradesman” and surreptitiously taken photographs.  It is nevertheless, a clear illustration of where the boundaries lie in relation to what the Court of Human Rights has called “entertainment journalism” and private life.  Three points can be noted.

First, it is interesting to note that the strange saga of the announcement of X’s birth on Mr Morrison’s website, with the subsequent inaccurate statement by his public relations representative did not play a decisive role.  The Judge accepted Mr Morrison’s explanation what happened.  He apparently felt able to come to a final conclusion that there was no general public interest [40] – rather than dealing with the matter on the balance of probabilities.

Secondly, the injunction covered photographs of the plaintiffs taken in public places.   It appears that this not only included photographs of the child, X, but also photographs of the adult plaintiffs.   In the circumstances, the judge accepted that there was a “reasonable expecation of privacy” in relation to these photographs.

Finally, in relation to the so-called “super injunction”.   It appears from the brief treatment of this in the judgment that the Judge was not using this term in its English sense – an injunction which prohibits reference to its own existence.  It seems that what was being sought was a “contra mundum” injunction – against anyone seeking to disclose any private information concerning the plaintiffs.  It is not surprising that this application was unsuccessful.