Following Giggs-gate it is not clear how much value there now is in the ‘public interest test’. Is the test still useful in helping courts to decide what should, or should not, remain private? If not, what is the alternative?
After the integration of the Human Rights Act to UK law, people began bringing cases to court on the basis of Article 8, the right to respect for private life. Some of these people were celebrities like Naomi Campbell, JK Rowling, and John Terry. Others were public figures like Max Mosley, Lord Browne and Fred Goodwin. Many others were not public figures at all (e.g. see list of privacy injunctions in The Independent).
When assessing these cases judges had to balance Article 8 with Article 10, the right to freedom of expression. The way they did this, in many cases, was by judging to what extent the information was in the ‘public interest’.
If you look at the individual cases it is clear that the judges spent a considerable amount of time mulling over what was, and what was not, in the public interest. Each time they did their reflections added to case law precedents. This includes precedents about reporting sex.
The judges, for example, decided there was a public interest argument for reporting on sex if:
- The circumstances bring into question the suitability of the individual for his/her role. As Justice Eady said in Mosley v News Group Newspapers Ltd (2008): “If he [Mosley] really were behaving in the way I have just described, that would, for many people, call seriously into question his suitability for his FIA role. It would be information which people arguably should have the opportunity to know and evaluate. It is probably right to acknowledge that private fantasies should not in themselves be subjected to legal scrutiny by the courts, but when they are acted out that is not necessarily so.”
- Where there is “a situation giving rise to favouritism or advancement through corruption” (Campbell v MGN Ltd 2004) then it could be legitimate to publish the fact that there had been a sexual relationship
- When the information is already highly accessible in the public domain. In Terry vs Persons Unknown (2010) the judge said that “Public domain applies where there has been sufficient prior publication so that there is nothing left which an injunction can, or should, protect”. This followed the famous ruling in the Spycatcher case (1988) in which the book was so widely available worldwide that the judge ruled it was no longer sensible to censor it in the UK
- Where a person is trying to protect their reputation rather than their privacy. In John Terry’s case Justice Tugendhat took the view that ‘the real basis for the concern of LNS [John Terry] is likely to be the impact of any adverse publicity upon the business of earning sponsorship and similar income’, and therefore did not warrant privacy protection
- Where it is relevant to other information that is in the public interest. In the Lord Browne case (Lord Browne v Associated Newspapers Ltd 2007) the judge agreed with Associated that knowing that there was a relationship between Lord Browne and Jeff Chevalier was ‘important background in authenticating in readers’ minds the other allegations they [the newspaper] wish to publish’ which were considered to be in the public interest.
But, when it came to consensual sex between adults in private, the judges have fairly consistently ruled that it is hard to see why the public interest should trump the private. Even when this sex may be unusual as in the Mosley case: “cases of spanking between consenting adults taking place in private property and without disturbing the neighbours” would, Justice Eady said, “plainly not be in the public interest”.
It is hard to envision a world in which judges will reverse this opinion and say that, without extenuating public interest circumstances, consensual sex is in the public interest.
Senior politicians such as Ken Clarke appear to agree. In the House last week Clarke said that “every time I watch a football team I don’t think I necessarily need to know about the sex lives of each of the players.”
Yet, not only does such an approach appear to be technologically un-enforceable, an active and influential minority of the public (successfully egged on by the popular press) appear to have come round to the idea that celebrity sex is in the public interest, or at least should not be legally protected.
This creates a crisis in the use of the public interest test, because it undermines the premise that peoples’ private lives should be legally protected unless it can be shown that aspects of them are in the public interest.
This in turn raises the question, if you don’t balance the right to a private life with the right to free expression by reference to the public interest then how do you judge it?