Oh My, What Have Three English Football Players And A Golf Star Done That They Needed Court Issued Media Gag Orders To Protect Their Privacy?

Philip M. Stone September 1, 2010 - Follow on Twitter

Three highly-paid English football players and a Scottish golf star have gone to court within the past 30 days asking for, and getting, gag orders preventing newspapers printing stories about their so-called private lives. There is no Act of the UK Parliament that provides for privacy law so the UK courts have taken it upon themselves to write such law as they go along. In the UK, where Parliament has failed to act the courts are not afraid to tread.

Written privacy law in Europe ranges from none in the UK to very strict in France where Article 9 of the Civil Code says simply: “Everyone has the right to privacy.” Successful French privacy law suits can be traced back to 1858 and the French Constitutional Court in 1995 ruled privacy a constitutional right which includes no publication of unauthorized pictures. Thus it is not uncommon in France to see celebrity magazines sued for printing photos that a celebrity or politician claims concerns his/her private life, not public life.

In Germany a successful invasion of privacy case can be traced to 1898 when a photographer took a picture of Prince Otto von Bismarck on his deathbed. His children successfully sued to have the picture destroyed so that the photographer should not benefit financially and a court agreed. In 1907 the German Parliament enacted the Law Regulating Copyright to Works of Portraiture and Photography which to this day still forbids the publishing of a person's image or likeness without the person's consent.

The European Court of Human Rights in 2004 ruled in its celebrated Princess Caroline case that public figures are entitled to privacy, and that no one can publish a picture of anyone during their private life without expressed consent. If a picture is not allowed then text, too? The court said that publishing pictures taken when personalities are not on public duty violates human rights under the European Convention on Human Rights. The basic ruling is that everyone, no matter how well known, must be able to enjoy a legitimate hope for the protection of his or her private life.

Which brings us back to those three football players and the golf star. If, for the sake of argument, they had gotten involved in some hanky-panky on their own time that’s something they claim is their own business and not the public’s, or to put it an American way, “What happens in Vegas stays in Vegas”. The media, of course, believe that anything a public figure does is fair game.

And football players know that if newspapers do get to dish the dirt there are serious repercussions. England and Chelsea captain John Terry in January got a gag order to prevent publication of his alleged affair with a French-born lingerie model who had been the girl friend of another England teammate with whom she had a son, now three years old. The gag order was eventually lifted and the resulting furor that Terry did what he did saw the England manager strip him of his England captaincy before the World Cup.

Various newspaper stories about alleged romances by football star Ashley Cole led his singer wife Cheryl to seek a divorce with the final whistle expected before the end of the year. So, such media revelations do take a heavy toll which is why players want what they believe to be private to stay private.

Naturally, the British media is none too happy at the willingness of the courts to grant such pre-publication injunctions. The Daily Mail apparently believes such gag orders are the biggest news of the day splashing a recent gag order as its top front page item with a jump to page two. It moaned, “Critics (didn’t say who but probably the newspaper’s editor for a start) said he (the footballer) is part of an increasing trend which allows highly paid sports stars with access to expensive lawyers to exercise legal rights denied to ordinary members of the public. In addition, the latest example of media censorship will reignite the row over judge-made privacy laws which have never been approved by Parliament. Instead the orders are based on judges’ personal interpretation of human rights laws.”

In this particular case the judge gave the gag order because he said publication would breach the footballer’s “right to private and family life.” And it is not just football players. Scottish golfer Colin Montgomerie got what is called a super injunction – so called because no one is supposed to know it had been issued except for those it was aimed at, but of course it did get out. Mongomerie allegedly wanted to stop publication of details about him and a former girl friend. Truth has no play in these privacy cases; it’s a matter of “public” life which is fair game and “private” life which is not.

Thus in 2008 when the News of the World ran a huge embarrassing story about then Formula 1 President Max Mosley in various orgies he sued and won £60,000 in the largest amount ever awarded in a  privacy case, let alone the £1 million in court costs the newspaper had to pay. The judge said Mosley had a “reasonable expectation of privacy" in relation to his sexual activities. The judge accepted, “There was bondage, beating and domination which seem to be typical of S&M behavior. But there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website – all of this on a massive scale. Of course, I accept that such behavior is viewed by some people with distaste and moral disapproval, but in the light of modern rights-based jurisprudence that does not provide any justification for the intrusion on the personal privacy of the claimant."

Mosley is taking it a step further and has taken his case to the European Court of Human Rights and the belief is the court is fast-tracking the case because it wants to use it to expand upon its Princess Caroline ruling. Mosley is asking for a judgment that will force the media to contact targets and tell them they are the subject of an upcoming expose and thus give them time to get pre-publication injunctions.

There are those who believe the British press have only themselves to blame because of their often underhanded methods to get exclusives – remember shortly before the World Cup how the Mail on Sunday bannered how the former girl friend of the head of the UK Football Association and leader of its 2018 World Cup bid invited him to a private lunch in which she secretly recorded some extremely damaging international football bribery allegations that he made as he sipped on his wine. She is said to have sold the recording to the newspaper for some £75,000, and he ended up resigning.

On the other hand the Murdoch-owned tabloid News of the World this past Sunday ran with an exclusive that is the envy of newspapers globally – alleged match fixing by the Pakistan national cricket team. It was something only a rich powerful newspaper could undertake – the News of the World reporter handed over £150,000 in cash to the match fixer (caught on secret video) who duly delivered on what he had promised would happen in a Test Match against England at the hallowed Lords Cricket Ground. The international cricket world remains in shock. This was a story that didn’t have any privacy restrictions to worry about so maybe the lesson is the media should concentrate more on the bad things people do in their public lives rather than what they do in private.

There seems to be no argument that public people do have private lives – the subhead on the Daily Mail story about a gag order actually said, “Second Player In week Uses Court To Halt Revelations on Private Life”. The issue is whether private life is fair media game.

The new UK coalition government has indicated it prefers to have Parliamentary law on privacy rather than judge-made law. Junior Justice Minister Lord McNally said recently, “If we are going to have a privacy law it should be openly debated and freely decided by Parliament. There has been a general consensus that a new piece of legislation that clarifies, consolidates and removes some of the more dangerous aspects of the way case law has grown up is something that is desirable." Senior judges have also formed a committee to recommend procedures for future privacy injunctions and the super injunctions.

Steven Glover in Monday’s Independent newspaper probably best summed up the turmoil. “At the moment we have judges gradually introducing a new privacy law without politicians or anyone else having a say. If nothing is done, the process may be complete in a few years. I may not trust politicians to frame a privacy law, but I trust judges even less.”

See also in ftm Knowledge

The Privacy Issue

The privacy issue touches every aspect of media. From consumer protection and the rights of individuals to news coverage privacy is hotly debated. New media and old media stumble and the courts decide. ftm offers views from every side of the Privacy Issue. 37 pages. PDF (April 2010)

Order Here

Media Laws – New and Revised

Policy makers and politicians are writing and rewiting media laws and rules at a breakneck pace. As broadcasters and publishers grapple with changes brought about by digital development, new business models and financial distress, the new media is feeling rules tightening around it. From licensing and public broadcasting to privacy, piracy and copyright this ftm Knowledge file Media Laws – New and Revised summarizes new laws and revised laws from a media perspective. 135 pages PDF (December 2010)

Order here

UK Newspapers

The newspaper market in the UK is among the worlds most competitive. The publishers are colorful, editors daring, journalists talented and readers discerning. ftm follows the leaders, the readers, the freebies and the tabloids. 83 pages PDF (October 2010)

Order here