Full case report
Ferdinand v MGN Ltd
Reference  EWHC 2454 (QB)
Court Queen's Bench Division
Judge Nicol J
Date of Judgment 29 Sep 2011
Misuse of private information – Breach of confidence – Balancing Exercise – Article 8 Right to Privacy – Article 10 Right to Freedom of Expression – Public interest – False or misleading image – Debate of General Interest – Footballers – Kiss and Tell
On 25 April 2010, the Sunday Mirror published an article about the Claimant’s relationship with Ms Carly Storey, who he had first met in 1996-1997. The article alleged that the Claimant had been having an affair with Ms Storey until the beginning of 2010 when he terminated the relationship after being made England Captain in February 2010. The article alleged that he had ended the relationship out of fear of being exposed like his predecessor, John Terry.
The Claimant claimed that the article was a misuse of his private information and a breach of confidence. The Defendant defended the article as a legitimate exercise of its right to freedom of expression on the following public interest grounds:
- That the Claimant had presented a false or misleading image of himself as a reformed character and a family man.
- That the Claimant had embarked on a misleading campaign since 2006 to project a more responsible and positive image than the reputation he held in the past.
- That there was an ongoing public debate as to whether the Claimant was a suitable person to be appointed as England Captain following the dismissal of John Terry (who had been sacked over an extra-martial affair).
- Ms Storey’s own right to freedom of expression under Art 10 and her right to personal autonomy under Article 8.
- Was the information in the article in principle protected by Art 8?
- In all the circumstances, does the Claimant’s Art 8 rights yield to the Defendant’s Art 10 rights?
Finding for D and dismissing the claim:-
(1) The information was in principle protected by Article 8. The relationship had not been conducted openly. Knowledge of the relationship was confined to a limited circle of family and friends. The Claimant had not, before the article, disclosed anything to the media about his relationship with Ms Storey. Sexual behaviour in private is part of the core aspects of individual autonomy which Article 8 is intended to protect.
(2) In relation to the ‘balancing exercise’, however, the Defendant’s right to freedom of expression outweighed the Claimant’s right to privacy. The publication of the article was justified in the public interest and the information contributed to a debate of general interest in a democratic society on the following grounds:
- The Claimant had given an interview to the News of the World in January 2006 in which he had portrayed himself as a reformed family man who had given up the ways of his past, including ‘cheating’ on his long-term partner, Ms Ellison. The same themes were echoed in the Claimant’s autobiography and subsequent media interviews. While that image persisted, there was a public interest in demonstrating it was false.
- There was a further public interest due to the Claimant’s appointment as England Captain. Many members of the public expect high standards from someone in the Claimant’s position and for many, the Captain is expected to be a role model who maintains those standards off, as well as on, the football pitch. The Defendant’s article reasonably contributed to a debate of general interest in a democratic society as to his suitability for that role.
- In terms of the additional details in the story about the early part of the relationship, the Defendant was entitled to place the relationship in context. The photo was unexceptional and its publication provided an element of support to the story. The publication of the additional details did not cause the Claimant unjustifiable additional distress (distinguishing Campbell v MGN Ltd).
An important decision for the media and for freedom of expression under Art 10. It is the first privacy trial in which the disclosure of an extra-marital affair was considered justified in the public interest. The case demonstrates that each privacy action will come down to an ‘intense focus’ on the specific facts of the case and a careful balancing of the competing rights at stake. It would appear that the reports of the death of ‘kiss and tell’ have been greatly exaggerated.
Simons Muirhead and Burton for the Claimant; Reynolds Porter Chamberlain for the Defendant
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.