UK: The Times They Are A-Changing…Back?

Last Updated: 18 September 2012
Article by Duncan Lamont

Just when cheating celebrities thought it was safe to go back into the water and get drenched to the bone, frolicking in villa side pools in Tuscany or beaches in the Seychelles, the tabloids have tried to put the privacy clock back and show that they continue to mean business prior to the publication of Lord Leveson's findings.

TV presenters and other public figures, some of whom who have obtained privacy injunctions in the past, had hoped that the PCC Code of Practice and OFCOM privacy rules might have given them freedom to let their hair down with members of the other opposite sex without the risk of public scrutiny but, bizarrely, the tabloids are have been hitting back with privacy injunctions (sometimes called super injunctions) in full retreat and kiss n' tells, or at least celebrity surveillance, back in fashion.

Whilst it could at least be argued that there was a public interest in photographs of a senior member of the Royal Family misbehaving naked in Vegas (security issues, at tax payers expense and so on) the public interest was less obvious in the desire of the Sun to expose and humiliate (again) the ex-England football manager, Steve McClaren who failed in his attempt to injunct the paper.

In mid-August, on a Saturday morning, Mr McClaren, now a professional football manager in Holland, married with three children, learned the Sun was going to publish details of an extra marital relationship. The Sun had a photograph of him walking along a street in Manchester with his lady friend and wanted to publish details of the relationship. The justification for this intrusion into his private life (the Court was told that the lady was keen to tell her story) was that about six years ago Mr McClaren had another extra marital relationship and an article about it was published in the Sun when the claimant (his lawyers had rung the judge and he was seeking a Saturday afternoon privacy injunction against the newspaper) was in the running for the England manager's job. PR Max Clifford, on behalf of McClaren, sold the story to the Sun to get it out in the open in a controlled way. Mr McClaren had had an affair whilst he had been separated briefly from his wife. He said it was a lapse and that he wanted to concentrate on his family life and the England job, which he subsequently was awarded. In the intervening years he mentioned his family twice more according to the Sun's QC. It was argued that the claimant was still a public figure and, as he was playing away again, was a hypocrite. The Sun wanted to make the legitimate point, in the public interest, that high standards of conduct were absent in football. The judge was not satisfied that Mr McClaren would ever get a permanent injunction so was not entitled to a temporary one under the law as it stands and threw out the claim. It remains to be seen if the claimant will persist in it bearing in mind the story has been published (and one suspects largely forgotten about).

This was not a one-off. Television newsman, Dermot Murnaghan and BBC Presenter Andrew Marr "had news flashes for their wives" recently when both were caught by tabloids "smooching with other women". Photographs of them with rather younger brunettes were published underneath the not unamusing headline "Current Affairs"!

Whilst the newspapers were giving evidence to Lord Leveson stories like this were simply not being published. And now they are again. Has the law changed? No. Has the Press Complaints Commission Code of Conduct changed? No. OFCOM Code? No. What seems to have happened is that newspapers have some inkling of the hurricane of criticism likely to be coming their way from the Leveson Inquiry, so are damned if you do and damned if you don't, and also realised that legal principles become irrelevant if bored readers are not prepared to purchase bland products as the sales of paid for newspapers collapses.

Before this flurry of activity it appeared that both claimant solicitors (with blooded noses after some failed injunctions) and the tabloids (presses halted by last minute injunctions and having to pay out substantial legal costs and some privacy damages to boot) and fought themselves to a standstill. Perhaps it was not that the press was behaving well to please Lord Leveson: perhaps it was celebrities who had stopped misbehaving! or perhaps there is little chance of that!

Perhaps nothing changes at all. Thanks to the internet, and then the Sun, we saw the photographs of naked Prince Harry. But naked surreptitiously taken paparazzi photographs of his dad, and even his uncle, had existed from decades ago (albeit not misbehaving, but simply in the buff) although they may not have seen the light in the UK as newspapers were a little bit more respectful of the modern monarchy in the 1980s then they became in the 1990s and beyond ...but such pictures existed but were not exploited even though no privacy law then existed.

The return of kiss n' tell, and the imminent publication of the thoughts of Lord Leveson, is going to make it a very interesting, if fraught, autumn for newspaper proprietors and celebrities alike.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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