‘The prostitute and dropping out’
It is not clear from the facts given who provided the Wicket World with the information. It could be argued that Mike has provided them in his autobiography and that it was already in the public domain (the Spycatcher case). However, it appears that by criticizing his teammates he was implying that he did not participate in the described behaviour. This seems to be supported by the Wicket World’s article stating that prior the article he cultivated a squeaky clean image.
If the information was provided by the prostitute, Mike would have a great difficulty in arguing that his sexual relation with her falls within circumstances creating duty of confidence. Only an intimate personal relationship gives rise to such a duty (Argyll v Argyll [1967] Ch 302). A night with a prostitute cannot be regarded as an intimate personal relationship but, instead, as a commercial sexual relationship – not all sexual relationships should be afforded the same quality of confidence and the same protection of the law (Theakston v MGN Ltd [2002] EWHC 137 (QB), A v B plc (Flitcroft v Mirror Group Newspapers Ltd) [2002] EWCA Civ 337; [2003] QB 195; [2002] EMLR 371; [2002] 3 WLR 542; [2002] 2 All ER 545). Therefore, it is very unlikely that he would successfully prevent this information being published.
If the information was provided by a teammate, Mike again will have problem proving a breach of confidence, unless all the players for the team are bound contractually to keep such information confidential. Since Mike has already disclosed such information about his teammates in his book, it is unlikely that a contractual relationship of confidence existed.
Even so, Mike can still bring a claim as the HRA has led to a development of the law of confidence. In Venables v News Group Newspapers Ltd [2001] 1 All ER 908 the court recognized that the newspapers were not a public authority, but the court as a public authority itself must comply with the Convention, and as a result Article 8 was applied against a private body, giving the right a new horizontal effect. As mentioned above, it did not introduce a separate cause of action for invasion of privacy (Wainwright v Home Office [2004] 2 AC 406) but has incorporated a tort of misuse of private information into the existing law of confidence (Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457) - a cause of action may rise from an intrusion in a situation where a person can reasonably expect his privacy to be respected, unless the intrusion can be justified. The law is less concerned with the context in which the information was obtained than with the nature of content.
Mike wishes to keep the information of his sexual relation with the prostitute and the real reason of dropping out of the final test secret. Question arises whether the court will consider the information private in the sense that it needs protection by Article 8 (McKennitt v Ash [2007] 3WLR 194). As set by the House of Lords in Campbell v MGN (2002) the broad test to consider is ‘whether disclosure of the information… would give substantial offence to a reasonable person of ordinary sensibilities assuming that the person was placed in similar circumstances’ (Barnett, 2009, p.552). It is likely that court would consider his rights under Article 8 to be engaged. Therefore, the court has to perform ‘balancing act’, which requires the court to ‘consider whether the interests of the owner of the private information had to give way to the right of freedom of expression’ (Barnett, 2009, p.553).
‘The prostitute’
The Wicket World could use the Theakston case in their defence, where the claimant, a Premiership footballer, was seeking an injunction to prevent newspapers from publishing information concerning his sexual relationship with two prostitutes at a brothel and it was held that the intrusion was justified where the other party to the relationship wished to disclose information about the relationship (if the source was the prostitute). Also, the intrusion could be justified on bases that it is in public interest publishing the information that he behaved in the manner he had, given his public role at the time as an international cricketer and a role model to young cricketers (A v B (2002)). Wicket World could also use the ruling of case of John Terry (previously referred to as LNS) v Persons Unknown [2010] EWHC 119 (QB) if they can prove that Mike’s main concern was to protect his financial arrangement rather than his private life. Furthermore, the England management announced false information that Mike dropped out due to food poisoning, publishing the true information in order to rectify the falsehood would be justified (Woodward v Hutchins [1977] 2 All ER 751). Nevertheless, the court may apply the decision of Mosley v News Group Newspapers [2008] EWHC 1777 (QB) where Eady J stated that ‘it is not for the state or the media to expose sexual conduct which does not involve any significant breach of the criminal law’.
‘The treatment’
The facts are very similar to the ones of Campbell case. Although the court did rule in favour of the claimant, it was only due to the publications of photos of the claimant leaving the ‘place of treatment’ which ‘added greatly to the intrusion of the claimant’s private life’ otherwise ‘the balance between the competing rights would have been about even’ (Barnett, 2009, p. 552).
Conclusion
As there appear to be no photographs involved, it is likely that the court would uphold Wicket World’s freedom of speech regarding publishing information about his addiction treatment and for correcting false information about the reason for dropping out from the final test. However, the court may find the publication of Mike’s sexual relationship with the prostitute as a breach of his right to privacy.
Bibliography:
Biles, G., Evans, S., Matthews, M., Pothecary, J. and Tayleur, T. (2013) Law: the individual and the state Manual 2, Milton Keynes, The Open University, 3rd edn
Barnett, H. (2009) Constitutional & Administrative Law, Oxon, Routledge-Cavendish, 7th edn
Allen, M. and Thompson, B. (2011) Cases and Materials on Constitutional and Administrative Law, New Oxford, Oxford University Press, 10th edn
Table of Cases:
A v B plc (Flitcroft v Mirror Group Newspapers Ltd) [2002] EWCA Civ 337; [2003] QB 195; [2002] EMLR 371; [2002] 3 WLR 542; [2002] 2 All ER 545
A G v Guardian Newspapers (No.2) [1990] 1 AC 109
Argyll v Argyll [1967] Ch 302
Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457
John Terry (previously referred to as LNS) v Persons Unknown [2010] EWHC 119 (QB)
Kaye v Robertson and Sports Newspapers Ltd [1991] FSR 62
McKennitt v Ash [2007] 3WLR 194
Mosley v News Group Newspapers [2008] EWHC 1777 (QB)
Theakston v MGN Ltd [2002] EWHC 137 (QB)
Venables v News Group Newspapers Ltd [2001] 1 All ER 908
Wainwright v Home Office [2004] 2 AC 406
Woodward v Hutchins [1977] 2 All ER 751
Table of Statutes and EU Legislation:
European Convention on Human Rights and Fundamental Freedoms 1950
Human Rights Act 1998
The facts of Question 2 follow on from Question 1.
On the day the trial in the High Court started, The Sentinel, a well-known national newspaper, published an editorial stating: “Oafish behaviour by certain footballers and cricket players has tarnished the good name of English sport. Instead of admitting their sins when caught in the act, too many of these overpaid lager louts run to the courts, complaining that their human right of privacy has been infringed. The courts have been far too sympathetic to such specious claims. Human rights are intended to protect the poor and oppressed, not the spoilt and wealthy.”
(a) Consider whether The Sentinel might incur criminal liability under the Contempt of Court Act 1981.
(b) In the light of your answer to part (a), consider whether the Contempt of Court Act 1981 complies with the European Convention on Human Rights.
Question 2a:
S.1 of the Contempt of Court Act 1981 (the ‘CCA’) prohibits the publication of material that could interfere with the course of justice in particular legal proceedings, regardless of intend to do so. In order to establish a strict liability under S.1 of the CCA a number of restrictions under S.2 have to be considered and the issues they raise satisfied.
Firstly, the publication must fall within the definition of S.2(1), which includes ‘any speech, writing, or other communication in written form addressed to the public at large or any section of the public’. Editorial is a newspaper article that expresses editor’s opinion on a topical issue. Therefore the editorial would fall within the written form requirements of S.2(1) and as it was published in a national newspaper it was clearly addressed to the public at large.
Secondly, the proceedings must be active as defined by Schedule 1 of the CCA. In civil proceedings it is when the case is set down for a hearing in the High Court (Sch. 1 par. 13(a)). The editorial was published on the day the trial in the High Court started. It was therefore done while the proceedings were active – the second condition is satisfied.
Thirdly, the publication must be of such a nature that it ‘creates a substantial risk that the course of justice, in the proceedings in question, will be seriously impeded or prejudiced’ (S.2(2)). As The Sentinel is a national newspaper, it is likely that the judge or judges could read the editorial before the trial and may be prejudiced. However, the court is unlikely to find that there was a substantial risk of serious prejudice due to the professionalism of the judges who are expected not to be influenced by the media when deciding a case.
Even if the court does find that the risk of serious impediment or prejudice was substantial, the prosecution would have to prove that the editorial was not just a ‘discussion in good faith of public affairs or matters of general public interest’ and that ‘the risk of prejudice to the proceedings was merely incidental to the proceedings’. Even if the publication is strongly commenting on the issue connected to the proceedings, if it is of genuine public interest and does not expressly refer to the trial (S. 5 of the CCA) the court will not regard it as contempt of court (Attorney General v English [1983] 1 AC 116).
In addition, if the editor can prove that, at the time of the publication, they did not know, and had no reason to suspect, that the proceedings were active (S.3(1), (2) of the CCA), the court will not find them in breach of the strict liability rule.
It would appear that The Sentinel would not be criminally liable under the strict liability rule of the CCA.
Question 2b:
‘Freedom of speech is generally considered as fundamental right in a modern democracy, so basic that many argue that it should override other right’ (W201 Manual 2, Open University 2013, p. 64). However, even the European Convention on Human Rights and Fundamental Freedoms 1950 (the ‘Convention’) does not regard it as an absolute right, but as a qualified one as expressly provided in Article 10(2) of the Convention – restrictions and penalties can be imposed ‘as are prescribed by the law and are necessary in a democratic society ... for maintaining the authority and impartiality of the judiciary’.
The Contempt of Court Act 1981 (the ‘CCA’) was passed in response to the decision of the European Court of Human Rights in the case of The Sunday Times v United Kingdom (1979) 2 EHRR 245 where the court decided that English law on contempt of court was contravening Article 10 of the ECHR. Unlike the common law of contempt of court, the CCA introduced strict liability rule where an act that tends to intervene with legal proceedings, may be regarded as contempt of court whether the person intended to do so or not. The strict liability rule only applies to acts that are publications like speech, writings, broadcasts or communication in any form which is addressed to wide public or a section of public. This may seem to be harsh and hindering on the freedom of speech, but it is important to ensure that course of justice – in particular legal proceedings – are not interfered with. The impact of the strict liability rule does have two limitations though.
Firstly, the CCA only applies to publications that not only create a high possibility of influencing the jury or judge but the potential influence must be so strong that it could make them biased. It would not only damage the impartiality of judiciary but could also affect the defendant’s right to a fair trial under Article 6 and his right to liberty and security of the person under the Article 5, both of them absolute under the Convention.
Secondly, it only applies to publication if the proceedings are active (as defined in Sch. 1 par. 12 of the CCA) and even then the court would consider whether the case has been dormant for long time and possible defences under S.3 of the CCA.
Therefore, even if the CCA does not adopt the wording of the Article 8, its basic aim was to give better protection to freedom of speech.
Bibliography:
Biles, G., Evans, S., Matthews, M., Pothecary, J. and Tayleur, T. (2013) Law: the individual and the state Manual 2, Milton Keynes, The Open University, 3rd edn
Barnett, H. (2009) Constitutional & Administrative Law, Oxon, Routledge-Cavendish, 7th edn
Allen, M. and Thompson, B. (2011) Cases and Materials on Constitutional and Administrative Law, New Oxford, Oxford University Press, 10th edn
Table of Cases:
Attorney General v English [1983] 1 AC 116
The Sunday Times v United Kingdom (1979) 2 EHRR 245
Table of Statutes and EU Legislation:
Contempt of Court Act 1981
European Convention on Human Rights and Fundamental Freedoms 1950
Word count: pg.
Q1: 1,302
Q2: 889
by
lenka100 (student)
