Terry v Persons Unknown [2010] EWHC 119 (QB)

Footballer John Terry sought an injunction to stop a newspaper from reporting an alleged affair. The court discharged the injunction, balancing his Article 8 right to privacy against the Article 10 right to freedom of expression, considering the information's prior availability.

Facts

The claimant, John Terry, a well-known professional footballer and captain of the England football team, sought an interim injunction to prevent the defendant, identified as ‘Persons Unknown’ but understood to be Associated Newspapers Ltd (publishers of the Daily Mail and Mail on Sunday), from publishing details of an alleged extra-marital affair. An initial injunction had been granted by a different judge. The hearing before Mr Justice Tugendhat concerned the claimant’s application for this injunction to be continued until trial. The claimant argued that publication would be a serious infringement of his right to a private and family life, as well as that of the other party to the alleged relationship and their respective families.

Issues

The central legal issue was the conflict between the claimant’s Article 8 right to respect for private and family life under the European Convention on Human Rights (ECHR) and the defendant’s Article 10 right to freedom of expression. The court had to perform a balancing exercise, as mandated by section 12 of the Human Rights Act 1998, to determine whether the privacy interest outweighed the public interest in publication. Key sub-issues included the extent to which a public figure’s private conduct is a matter of legitimate public interest, and the weight to be given to the fact that the confidential information was already known to a number of individuals.

Judgment

Mr Justice Tugendhat dismissed the application and discharged the injunction. The court’s reasoning was based on a careful balancing of the competing ECHR rights.

The Balancing Exercise

The judge acknowledged the claimant’s right to privacy but determined that it did not justify prior restraint of publication in this specific context. He considered the defendant’s argument that Mr Terry had established a public image as a family man and accepted lucrative sponsorship deals based on this image. This, the defendant argued, created a public interest in exposing conduct that might be perceived as hypocritical. The judge noted:

Freedom to live as one chooses is one of the most valuable freedoms. But so is freedom to criticise (within the limits of the law) the conduct of other members of society as being socially harmful, or wrong… This is particularly so where the person is a public figure who has himself chosen to comment on such matters.

Nature of the Information

A critical factor in the judgment was that the information was not a closely guarded secret. It was known to a significant number of people within the football world. The court reasoned that an injunction would likely be ineffective in the long run and that granting one would only serve to fuel speculation. The Judge noted that the level of protection afforded to the information was not of the highest order:

In the present case, the information is not information for which the law would at all times provide protection. Mr Terry has not made a compelling case that he is likely to succeed at trial in obtaining a permanent injunction. The information is not information which in its nature calls for the highest level of protection as being an intimate secret or relating to his health or personal communications with his wife.

Futility of the Injunction

The judge concluded that granting the injunction would be a futile exercise and could potentially be counter-productive by generating more intense media interest. This practical consideration weighed heavily against the claimant.

Further I take the view that an injunction would be a temporary and ineffective remedy. It seems to me that it is likely that there would be a media storm of the kind that this court has been warned about.

Ultimately, the court found that the claimant had not demonstrated that he was likely to succeed at trial in obtaining a permanent injunction. The interest in freedom of expression, combined with the limited confidentiality of the information and the practical difficulties of enforcement, outweighed the claimant’s privacy rights in this instance.

Implications

The decision in Terry v Persons Unknown is a key authority on the balancing act between Article 8 and Article 10 rights concerning public figures. It underscores that while public figures retain a right to privacy, this right is diminished, particularly where their own conduct has placed their private life in the public sphere. The case highlights the reluctance of courts to grant ‘privacy injunctions’ to suppress information that is already in circulation among a number of people, as such an order would be considered largely ineffective. It serves as a significant precedent for cases involving the misuse of private information and breach of confidence claims brought by celebrities and other public figures against the media.

Verdict: The application for an interim injunction was dismissed and the initial injunction was discharged.

Source: Terry v Persons Unknown [2010] EWHC 119 (QB)