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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Spelman v Express Newspapers [2012] EWHC 355 (QB) (24 February 2012) URL: https://www.bailii.org/ew/cases/EWHC/QB/2012/355.html Cite as: [2012] EWHC 355 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Jonathan Spelman (by his Litigation Friends Mark Spelman and Caroline Spelman) |
Claimant |
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- and - |
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Express Newspapers |
Defendant |
____________________
Christina Michalos (instructed by Express Newspapers) for the Defendant
Hearing dates: 16 February 2011
____________________
Crown Copyright ©
Mr Justice Tugendhat :
THE HEARING ON 16 FEBRUARY
"2. … we have a genuine and strong belief that publication is in the public interest. This is not only my personal belief as Editor but the view of the investigating journalist and editorial team. There is a clear public interest in this story being reported, highlighting as it does, the pressures on elite athletes from the very beginning of their sporting careers. The facts of [the Claimant]'s story act as a warning …
4. … Jonathan is a young international sportsman at the beginning of a promising career in rugby. His story is one that speaks to any sports man or woman that hopes to build and maintain a career at the top of their game. Although he is only 17, he is already a role model to other youngsters who aspire to follow in his footsteps and play for their country…
10. This is a much bigger public interest issue than the fact the Claimant is the son of a Conservative politician. Sport operates on a hierarchical structure and those playing rugby at school today are the elite and professional rugby players of tomorrow. Exposing … pressures on those who are young at elite level informs and educates those below at grass roots level and helps to promote a culture in the public and in sport …".
"14. The injunction was granted on Saturday preventing publication in the Daily Star Sunday on 12 February 2012. As I elaborate further below, Sunday titles are in a particularly invidious position if an injunction granted at the weekend is overturned at a further hearing later in the week. This is because the prohibition is removed during the working week and it is all daily titles that have the opportunity to report. The Sunday paper loses its exclusive. I make this point because I cannot stress enough that the Daily Star Sunday and Express Newspapers are contesting this injunction on an important point of principle and in support of the right of freedom of expression and not for any commercial reason. In fact, there is every commercial incentive not to spend money on legal fees where even success brings no direct benefit to the paper."
"15. The resulting injunction has already cost a considerable sum in wasted hours and delayed production. The granting of the injunction on Saturday 11 February, after a long hearing in front of HHJ Lindblom which concluded at about 7.30 pm, meant that the Daily Star Sunday were unable to be the first paper to run this exclusive. The late-running hearing meant that pages were sent later to the printers than intended, with the knock-on effect of delayed delivery trucks and late papers in the shops.
16. Exclusive stories are the very lifeblood of the Sunday press. The commercial imperative of the exclusive should not be underestimated at a time Britain's newspapers are fighting for their very survival. One only has to listen to the evidence that has been given to the Leveson Inquiry as regarding falling circulation and commercial pressures on the print media.
17. Should the injunction be discharged on Thursday 16 February, every daily newspaper will be free to run the story. They will have the facts freely to hand, courtesy of being put on notice by the injunction. This will inevitably always happen in the case of a Sunday paper, unless a Court can be persuaded to hold a return date on a Saturday afternoon – which is, I assume, unrealistic. Even lifting an injunction on a Friday, means that the Saturday papers can report on a story, a large part of the value of which typically will be the exclusive aspect. I must emphasize that this is certainly not the overriding aspect in this case. The overriding aspect is, as I have said, the public interest in publishing a story that I, and my staff, feel strongly the public have an interest and right to know. However, I feel it is important to explain to the court that there is actually very little commercial incentive to defend this injunction for these reasons.
18. The easiest and cheapest solution for the paper in this case is to accept the interim injunction and walk away irrespective of our views. We are here because we believe this sets an important and wrong precedent and the injunction should be overturned. This case involves serious issues that matter to the public and not trivia. I personally believe to injunct information of this character is a serious fetter on the press's right of freedom of expression and its function as a watchdog.
19. The net result of this is that our exclusive is now no longer our exclusive, however, we are determined to pursue the matter as we think it vitally important the story be told."
"5. I understand that Mark Spelman claims in his witness statement that he believes the intention of the Daily Star Sunday is to attack his wife, a Cabinet minister, using their son as weapon and that our purpose is "nakedly political". This is absolutely untrue. Of course, I accept that the identity of Jonathan's mother adds a further dimension of public interest to this story but it is only an incidental dimension."
"20. The Court should not be misled into thinking that publication will or is likely to lead to a press pack descending upon the Claimant or disruption of his studies by numerous journalists door-stepping him at school. This is to wrongly present the press in cartoonish terms and is not grounded in reality. There may be some press interest in the story following any publication, ….
21. Jonathan Spelman's story will not cause sustained or unreasonable press interest in him personally. This is essentially a news story about the particular facts of his case rather than something likely to generate ongoing media interest in him as an individual. It is unrealistic to think that Jonathan Spelman needs to fear the worst excesses of harassment alleged by some celebrities at the Leveson Inquiry if the facts were made public. While the debate … is likely to rage for years to come, Jonathan Spelman's case is just the latest chapter in this story. He is of no interest to the press beyond the limits of this particular story and there is no reason for him to fear sustained intrusion into his school and personal life.
22. The PCC has a very effective pre-warning system, to which we as a newspaper still adhere, whereby those subject to unwelcome press attention can put out a warning to all media at the outset to the effect that they do not wish to be photographed or make any comment. This has the effect of a warning shot and most responsible members of the press will respect the warning. In practical terms, this means that national newspapers are unlikely to disobey a PCC warning. This should allay the fears of Jonathan's parents, who are used to dealing with the press in any event.
23. Finally, it is worth noting that Jonathan Spelman has accompanied his mother on various political outings and campaigns and will not be as unused to the press as others may be."
THE GENERAL LAW OF PRIVACY AND FREEDOM OF EXPRESSION
Article 8 right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the protection of the rights and freedoms of others.
Article 10 freedom of expression
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
(2) The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence ...
i) The first question is whether there is a reasonable expectation of privacy. This is the threshold question, and it is an objective test. See Murray v Express Newspapers plc [2009] Ch 481, where Sir Anthony Clarke MR said at [35]-[36]:"35. … The first question is whether there is a reasonable expectation of privacy. This is of course an objective question. The nature of the question was discussed in Campbell v MGN Ltd. Lord Hope emphasised that the reasonable expectation was that of the person who is affected by the publicity. He said at [99]: "The question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity."…36. As we see it, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher."ii) If and only if that question is answered in the affirmative, the Court proceeds to the second part of the two-stage approach which is laid down by the authorities. See Murray v Express Newspapers plc [2009] Ch 481, [27], namely
"whether in all the circumstances the interest of the owner of the information must yield to the right of freedom of expression conferred on the publisher by article 10?"
"12. - (1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression…
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-
(a) the extent to which-
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
"As to what degree of likelihood makes the prospects of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights."
"3.*Privacy
i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.
ii) Editors will be expected to justify intrusions into any individual's private life without consent. Account will be taken of the complainant's own public disclosures of information.
6* Children
i) Young people should be free to complete their time at school without unnecessary intrusion.
vi) Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child's private life.
* The public interest
There may be exceptions to the clauses marked * where they can be demonstrated to be in the public interest.
1. The public interest includes, but is not confined to:
i) Detecting or exposing crime or serious impropriety.
ii) Protecting public health and safety.
iii) Preventing the public from being misled by an action or statement of an individual or organisation.
2. There is a public interest in freedom of expression itself…."
"12. The Daily Star Sunday, and Express Newspapers, is not now a member of the Press Complaints Commission. However, the Daily Star Sunday strictly adheres to the Editor's Code of Practice and we take our responsibilities to our readers and subjects of our stories very seriously. All journalists comply with the Code and our legal advisors advise us as to compliance.
13. Our commitment to abide by the Code is clear in this case, where we have followed the Code in all matters from the very start. Our actions have included giving full, prior notification of the story . This is not a case where we elected to run a story without prior notification; we acted properly and responsibly as explained in Tom Savage's witness statement."
"The "media," to use a term which comprises not only the newspapers, but also television and radio, are an essential foundation of any democracy. In exposing crime, anti-social behaviour and hypocrisy and in campaigning for reform and propagating the view of minorities, they perform an invaluable function."
"However, they are peculiarly vulnerable to the error of confusing the public interest with their own interest. Usually these interests march hand in hand, but not always. In the instant case, pending a trial, it is impossible to see what public interest would be served by publishing the contents of the tapes which would not equally be served by giving them to the police or to the Jockey Club. Any wider publication could only serve the interests of the Daily Mail".
"Unidentified persons tapped telephone conversation made to and from the plaintiffs' home. The eavesdropper offered for sale to a national newspaper tapes of the telephone conversations which it was alleged revealed breaches of the rules of racing by the first plaintiff, a well-known jockey. The plaintiffs became aware of the existence of the tapes when two journalists employed by the newspaper approached the first plaintiff to confirm the authenticity of the tapes. Thereupon the plaintiffs issued a writ against the newspaper, its editor and the two journalists claiming, inter alia, damages for breach of confidence…. On appeal by the defendants: Held,… (2) That, since the questions of what use might be made of tape recordings which had been obtained by illegal telephone tapping and whether there was an action against the defendants for breach of confidentiality and, if so, whether the defendants would have a defence of disclosure in the public interest would be in issue at trial, publication of the contents of the tapes pending trial would prejudice the plaintiffs' claim; that to preserve the rights of the parties the injunction restraining publication should be continued until trial but that its terms should be varied so that it would be open to the defendants to apply to the appropriate minister for permission to disclose all the information obtained to the police or the Jockey Club…"
PUBLIC FIGURES AND PRIVACY
"The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures..."
"(1) a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions, for example, and reporting details of the private life of an individual who, moreover, as in this case, does not exercise official functions. While in the former case the press exercises its vital role of 'watchdog' in a democracy by contributing to 'imparting information and ideas on matters of public interest' it does not do so in the latter case" [63];
(2) … the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest" [76]".
"6. The Assembly is aware that personal privacy is often invaded, even in countries with specific legislation to protect it, as people's private lives have become a highly lucrative commodity for certain sectors of the media. The victims are essentially public figures, since details of their private lives serve as a stimulus to sales. At the same time, public figures must recognise that the special position they occupy in society - in many cases by choice - automatically entails increased pressure on their privacy.
7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain."
"90. An initial essential criterion is the contribution made by photos or articles in the press to a debate of general interest (see Von Hannover, cited above, § 60; …. The definition of what constitutes a subject of general interest will depend on the circumstances of the case. The Court nevertheless considers it useful to point out that it has recognised the existence of such an interest not only where the publication concerned political issues or crimes (…), but also where it concerned sporting issues or performing artists (see Nikowitz and Verlagsgruppe News GmbH v. Austria, no. 5266/03, § 25, 22 February 2007 ["an issue of general interest, namely society's attitude towards a sports star"]; …)."
"79. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog"….
80. This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. It is inconceivable that there can be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large…"
CHILDREN AND PRIVACY
"[45] … The fact that he is a child is in our view of greater significance than the judge thought. The courts have recognised the importance of the rights of children in many different contexts and so too has the international community: see eg R v Central Independent Television Plc [1994] Fam 194 per Hoffmann LJ at 204-5 and the United Nations Convention on the Rights of the Child, to which the United Kingdom is a party. More specifically, clause 6 of the Press Complaints Commission Editors' Code of Practice contains this sentence under the heading Children… If a child of parents who are not in the public eye could reasonably expect not to have photographs of him published in the media, so too should the child of a famous parent. In our opinion it is at least arguable that a child of 'ordinary' parents could reasonably expect that the press would not target him and publish photographs of him."
"21 … section 39(1) is not engaged in the present case. My reason for referring to it is, however, the reflection that, in regard to children not concerned in a criminal trial, there has been a legislative choice not to extend the right to restrain publicity to them. This is a factor which cannot be ignored….
26. While article 8.1 is engaged, and none of the factors in article 8.2 justifies the interference, it is necessary to assess realistically the nature of the relief sought. This is an application for an injunction beyond the scope of section 39, the remedy provided by Parliament to protect juveniles directly affected by criminal proceedings. No such injunction has in the past been granted under the inherent jurisdiction or under the provisions of the ECHR. There is no decision of the Strasbourg court granting injunctive relief to non-parties, juvenile or adult, in respect of publication of criminal proceedings. Moreover, the Convention on the Rights of the Child, which entered into force on 2 September 1990, protects the privacy of children directly involved in criminal proceedings, but does not protect the privacy of children if they are only indirectly affected by criminal trials: articles 17 and 40.2(vii); see also Geraldine Van Bueren, The International Law on the Rights of the Child, 1994, 141 and 182. The verdict of experience appears to be that such a development is a step too far.
27. The interference with article 8 rights, however distressing for the child, is not of the same order when compared with cases of juveniles, who are directly involved in criminal trials."
THE LAW OF DEFAMATION
THE ATTRIBUTES OF THE CLAIMANT
THE POSITION OF THE CLAIMANT'S MOTHER
"It appears to me that the paper is seeking to attack my wife and is using my son… as a weapon to do so … the purpose of the paper's interest is nakedly political".
THE NATURE OF THE ACTIVITY IN WHICH THE CLAIMANT WAS ENGAGED
THE PLACE AT WHICH IT WAS HAPPENING
THE NATURE AND PURPOSE OF THE INTRUSION
THE ABSENCE OF CONSENT AND WHETHER IT WAS KNOWN OR COULD BE INFERRED
THE EFFECT ON THE CLAIMANT
THE CIRCUMSTANCES IN WHICH AND THE PURPOSES FOR WHICH THE INFORMATION CAME INTO THE HANDS OF THE PUBLISHER.
THE DIFFERENT CATEGORIES OF INFORMATION
"I recognise that without reference to the content of the confidential information this conclusion is necessarily enigmatic to those who have not read the private judgments of the courts below. But if I were to elaborate I would at once destroy the confidentiality the Cream group are seeking to preserve. Even if the House discharges the restraint order made by the judge, it would not be right for your Lordships to make public the information in question. The contents of your Lordships' speeches should not pre-empt Echo's publication, if that is what the newspaper decides now to do. Nor should these speeches, by themselves placing this information in the public domain, undermine any remedy in damages the Cream group may ultimately be found to have against the Echo or Ms Banerjee in respect of matters the Echo may decide to publish."
CONCLUSION ON EXPECTATION OF PRIVACY
PUBLIC INTEREST
DAMAGES AS AN ADEQUATE REMEDY
"The Court further observes that, in its examination to date of the measures in place at domestic level to protect Article 8 rights in the context of freedom of expression, it has implicitly accepted that ex post facto damages provide an adequate remedy for violations of Article 8 rights arising from the publication by a newspaper of private information. Thus in Von Hannover, cited above, the Court's analysis focused on whether the judgment of the domestic courts in civil proceedings brought following publication of private material struck a fair balance between the competing interests. In [Armonas v. Lithuania - 36919/02 [2008] ECHR 1526; [2009] EMLR 7], a complaint about the disclosure of the applicant's husband's HIV-positive status focused on the "derisory sum" of damages available in the subsequent civil proceedings for the serious violation of privacy. While the Court has on occasion required more than civil law damages in order to satisfy the positive obligation arising under Article 8, the nature of the Article 8 violation in the case was of particular importance."
"in a case of an outrageous abuse of press freedom, as in the present application, the Court finds that the severe legislative limitations on judicial discretion in redressing the damage suffered by the victim and sufficiently deterring the recurrence of such abuses, failed to provide the applicant with the protection that could have legitimately been expected under Article 8 of the Convention".
"Everyone has the right to respect for his private life".
"2-1-2 The judge's main role: to prevent the intrusion or to make it cease
[1] In fact, the key factor which must guide the juge des référés [interim applications judge] when making a decision is the necessity and the proportionality of the measures ordered. What are these different measures, to which Article 9 suggests but gives a non-exhaustive reference? When the 'claim is made before the impugned publication, the judge may ban it. When it is made after the publication, the judge may order the seizure of all the copies of the newspaper. These two measures are fully in conflict with the freedom of expression. They imply that the damage that is being caused or could be caused by the publication is serious; and could never' be effectively compensated afterwards by merely awarding damages. It very seldom happens that they are ordered by the juge des référés. In eight years of exercise of this responsibility in the area of the freedom of the Press, I have never myself ordered a preventive ban or a seizure of a newspaper. And I remember, during those eight years, only one case of a seizure order: when a weekly magazine published, on its cover page, a photograph of the victim of a sordid and violent kidnapping, followed by a barbarous murder, a photograph that was considered to be a violation of the dignity of the victim and a breach of the privacy of his family, and which was published at the time of the opening of the trial of the accused. I must add that this order was partially invalidated by the Court of appeal, one day later.
[2] A more famous case that comes to mind is the seizure of a book published by President Mitterrand's personal doctor, a few months after the president's death. This order was confirmed by the Court of appeal, and by the Cour de cassation. And this was again confirmed at all three court levels when a full hearing was heard. But, even if the European Court of Strasbourg [Plon (Societe) v. France 58148/00 [2004] ECHR 200; 42 EHRR 36)] found that there had been no breach of the freedom or expression (at least in the first order issued by the juge des référés, since it ruled that, after a period of time, the banning of the publication of the book was no longer justified), this case is not really typical: because what was at stake was not only the breach of the private life of the family of the dead president, but also a patent violation of medical confidentiality, and because of the aura left by Mitterrand after his death.
[3] The judge can decide on another measure, which is less a breach of the freedom of the Press and is not referred to in the open list given by Article 9: the judge can order the newspaper to publish, in the next edition, a statement mentioning the fact that the impugned publication was found by the judge to be a breach of the right to private life of the claimant. The judge will decide on the wording of the statement and more specifically, its size .and the place where it must be published. This is still a limitation to the freedom of the Press, usually considered by the newspapers as the equivalent of a partial expropriation of their editorial content. And, again, the test, for the judge, is necessity and proportionality. Necessity to make known to the periodical's readers, while their memory of the breach is still vivid, that the impugned publication was made in violation of the rights of the claimant. And proportionality with the breach itself. An analogy can be made with what the Freedom of the Press Act of 1881 calls the right of reply, where every person named in a periodical or newspaper is allowed to get a reply published, in the same place, with the same characters as in initial publication. But this is only an analogy, since, as far as a breach of Article 9 is concerned, there is no express provision linking the place and size of the statement to the place and size of the impugned publication.
[4] On the contrary, the judge must be very cautious, since the publication of a statement on the best part of the front page has a very strong impact on the public and on the media to which it is imposed. And it cannot be undone. And the judge must be very precise about the definition of the aim the claimant is pursuing when asking for such a measure. Sometimes, things are very clear, especially when the impugned publication may have left the reader under the impression that the person concerned had cooperated in making it: the statement is, in this kind of situation, useful, since it corrects this misrepresentation and contributes to causing the intrusion to cease. More often, the claimant considers the statement as part of the remedy he is seeking. And perhaps still more often, the claimant hopes that the action will have a deterrent effect. Which means we are far from the original role given by Article 9 to the juge des référés. The judge is already allocating damages for the loss or injury sustained.
[5] Before dealing with this extension of the role of the judge, I must give a last detail on the measures ordered to prevent the intrusion or to make it cease. Contrary to the basic rule of civil procedure, which limits the power of the judge to what is in the claim and prohibits any decision ultra petita, the juge des référés can decide freely which is the fairest and most relevant measure to order, and even when the claimant asks for a seizure, the judge may instead decide on the publication of a statement in reply, or modify the wording of the publication which the claimant is suing.
2-1-3 The [award] of damages
[1] Article 9 does not provide that the juge des référés may deal with damages for the loss or injury sustained resulting from the breach of the right to private life. But the judge, as I already mentioned, may combine the special provisions of this article with the general ones, which, inter alia, permits, when the existence of a duty cannot be seriously in dispute, the awarding of a payment in advance to the entitled party (Cass. Civ 1, 12 December 2000). On a very regular basis therefore, the claimant may ask the judge to order a payment in advance of the damages claimed. And, in this field of law as in many others, when the breach is obvious, so that it cannot be seriously disputed, the judge may order a payment in advance which will be as close as possible to the full amount of damages to be awarded as a means of putting an end to the dispute and preventing the interlocutory application from being followed by a full action before the Court. This happens very often, since the Cour de Cassation does not fix any limits to the amount of payment". (emphasis added)
"That the defendant George Blake be restrained until further order from receiving or from authorising any person to receive on his behalf any payment or other benefit resulting from or in connection with the exploitation of No Other Choice in any form or any information therein relating to security and intelligence which is or has been in his possession by virtue of his position as a member of the Secret Intelligence Service."
CONCLUSION