McClaren v News Group Newspapers Ltd
Reference:  EWHC 2466 (QB)
Court: High Court (QBD)
Judge: Lindblom J
Date of judgment: 5 Sep 2012
Summary: Privacy - misuse of private information - interim injunction - public figure - public interest - kiss and tell
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Instructing Solicitors: Schillings for C, Simons Muirhead Burton for D
C was a professional football manager, at the time at Dutch side FC Twente and previously manager of the England team. He was a married father of three. C had an affair about 6 years ago which was reported by D in The Sun. C had not sought an injunction to prevent this, rather he had sold his statement about the affair to the newspaper through his PR agent. The Sun story ended with C saying it had been a lapse and he wanted to concentrate on his family and job. C had since spoken publicly twice about his family, making comments about how they had allowed him to work abroad and were coping well with it.
D now sought to publish in The Sun information about C’s relationship with a woman referred to as SA, along with a photograph of them taken on the street as they went to her flat. SA had cooperated with D and wanted to tell her story. C sought an injunction to prevent publication of both the new story and the photograph and to provide anonymity for himself.
Whether C should be granted an injunction and anonymity:
(1) whether C had a reasonable expectation of privacy in respect of these matters; and
(2) whether his claim was likely to succeed, balancing C’s Article 8 rights with the countervailing considerations, in particular D and SA’s Article 10 rights.
Refusing to grant the injunction:
(1) As the information related to a sexual relationship it is clear that it is of the essence of private life, C did have a reasonable expectation of privacy and his Article 8 rights were engaged.
(2) As to the balancing stage:
(a) As former England manager C was undoubtedly a public figure within the definition set out in Spelman v Express Newspapers and could be someone from whom higher standard of conduct could reasonably be expected by the public – an analogy being drawn with captains of the England team (see Terry v Persons Unknown, Ferdinand v MGN). C is still a prominent figure who has held positions of responsibility within the national game.
(b) The court noted that C had previously disclosed a previous affair saying that he expected his marriage to survive.
(c) Although SA’s willingness to tell her story did not defeat C’s right to privacy there were still strong reasons why D had a legitimate interest in publishing the story. That the story may have been a set-up, with the photograph taken by a journalist told where C and SA would be, was no more than peripheral to the balancing exercise.
(d) C was most unlikely to succeed in obtaining a permanent injunction at trial.
This case appears to expand the definition of who is a public figure. C had not been England manager for some 5 years and presently worked abroad at a club which does not have a particularly high profile in this country. Despite this C was to be considered a role model. In arguing that C was a public figure D relied on, and the Judge quoted from A v B plc; thus recent suggestions that if it were to be decided now it may well be decided differently may need to be reconsidered. It appears that reports of the death of “kiss and tell” are greatly exaggerated.