Nestled in the background for the latter six months of a busy year for media law was Rio Ferdinand’s action against the Sunday Mirror over an article that was published in April 2010. While full privacy hearings are always notable for their rarity, the Ferdinand v MGN Ltd [2011] judgment is notable for the judge’s acceptance of arguments, long since disapproved of by the Court of Appeal, that where an individual may be considered by some to be a role model, that individual’s private life may be less deserving of protection than yours or mine.
THE FRAMEWORK OF PRIVACY AND FREEDOM OF EXPRESSION
The tort of misuse of private information is now well established by a line of cases in the House of Lords and the Court of Appeal. The court must apply a two-stage test:
‘First, is the information private in the sense that it is in principle protected by Article 8? If no, that is the end of the case. If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10?’1
The driving theme in the case law is that cases are decided on a close analysis of the facts and the rights at issue and that ‘generalisations are perhaps best avoided’2.
The ‘decisive factor at the second stage’3 is the contribution that the publication of the information would make to a debate of general interest, and the defendant must establish a ‘substantial argument’ for publication based on the public interest4. This contrasts with what Baroness Hale described as ‘the most vapid tittle-tattle about the activities of footballers’ wives and girlfriends [which interest] large sections of the public but [in which] no-one could claim any real public interest in our being told all about it’5.
It is into this public interest element that arguments like the exposure of hypocrisy or correction of a misleading statement, and the role model concept are poured.
THE RISE AND FALL OF THE ROLE MODEL
Since the coming into force of the Human Rights Act 1998, there has been argument about the impact of an individual’s public position on their right to respect for their private and family life. Until the judgment in Ferdinand, a relatively settled position had been adopted that acknowledged the distinction between those performing official functions and those who are ‘merely’ in the public eye. Reflecting their role in a democratic society, those falling within the former category may have to suffer greater intrusion into their private lives in the name of the public interest.
This was not always so. In the early development of the tort of misuse of private information, Lord Woolf said:
‘Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others… Whether you have courted publicity or not you may be a legitimate subject of public attention.’6
While it is inevitable that individuals who appear in the public eye will hold fascination for the general public, Lord Woolf did not explain how the public interest, as such, is furthered by intrusion into the private life of an individual with a public profile.
Later Court of Appeal judgments have politely dismissed Lord Woolf’s comments. In Naomi Campbell’s case, Lord Phillips said:
‘When Lord Woolf spoke of the public having “an understandable and so a legitimate interest in being told” information, even including trivial facts, about a public figure, he was not speaking of private facts which a fair-minded person would consider it offensive to disclose…
For our part we would observe that the fact that an individual has achieved prominence on the public stage does not mean that his private life can be laid bare by the media. We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay.’7
In the House of Lords in Campbell v MGN Ltd [2002], Lord Hope said that ‘it is not enough to deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is newsworthy’, and Lord Hoffman added that the fact that Campbell ‘had a long and symbiotic relationship with the media… would not in itself justify publication’8.
In McKennitt v Ash [2006], the Court of Appeal considered whether there was a public interest in the private life of a public figure, for the reason alone that they are a public figure. The Court explained that ‘it seems clear that [Lord Woolf’s remarks in A v B plc (Flitcroft v MGN Ltd) [2002]] cannot be read as any sort of binding authority on the content of Articles 8 and 10’9.
The argument that public figures could be made into role models, held to higher standards of behaviour, and that their private lives were inherently less deserving of protection, had been put to bed. There remained the residual category of the public figure who carried out official functions and in respect of whom, in the public interest in a democratic society, enhanced scrutiny may be brought to bear. This doctrine has clear limits and in Goodwin v NGN Ltd [2011], Tugendhat J said:
‘… he was the chief executive of one of the largest publicly quoted companies in the United Kingdom, doing business on a global scale. Whatever limits there may be to the legal concept of a public figure, or a person carrying out official functions, in my judgment Sir Fred Goodwin came within the definition. This distinguishes him from sportsmen and celebrities in the world of entertainment, who do not come within that definition.’
The judge went on to describe the only accepted caveat, being where the private conduct of a sportsman directly conflicts with his professional ability to perform the core of his sporting job. Absent such conflict there remained a very high bar to being a ‘public figure’ with sportsmen and entertainment figures specifically ruled out. Even in Goodwin’s case, Tugendhat J’s grounds for allowing the prying into Goodwin’s private life were unpersuasive.
A RESURGENCE FOR THE ROLE MODEL
In Ferdinand, Nicol J rediscovered the concept of the role model, despite established case law to the contrary. Nicol noted that ‘the phrase “role model” is somewhat ubiquitous’ (at para 87) before quoting from Lord Woolf’s disapproved of judgement in Flitcroft. Nicol elevated the position of England captain to the status of ‘role model’, noting that ‘there are many who would indeed see the captain, at least, of the England football team as a role model’ (at para 90), so as to find a public interest in the ‘debate’ surrounding Ferdinand’s suitability for that role. This, in Nicol’s view, enabled the opening up to media scrutiny of Ferdinand’s past private life, including his interactions with the kiss-and-tell girl in the Sunday Mirror’s article, Carly Storey, who he had not met in person for nearly five years.
Nicol’s attempt to distinguish the clear findings of the Court of Appeal in McKennitt v Ash was unconvincing. He described McKennitt, a singer, as an involuntary role model, in contrast to Ferdinand, a footballer, who by not rejecting his appointment as England captain was, apparently, a voluntary role model. In departing from the Court of Appeal’s dismissal of the role model argument, Nicol also emphasised that McKennitt had not been engaged in ‘disreputable conduct’ (at para 88). This confuses the argument. The question of an individual’s conduct is separate from whether their status as a public figure justifies subjecting their private life to greater public scrutiny. Following a ‘role model’ argument, an individual’s public profile either does or does not elevate them to such a status and the relevant conduct then either does or does not constitute something that is in the public interest to publish. It is not their conduct that determines whether they are a role model, or indeed whether any ‘role model’ type argument may be acceptable in law.
THE DANGERS OF THE ARGUMENT
Nicol’s judgment has been much celebrated in the media as it provides an opening for them to control the publication of information about individuals’ private lives. As Nicol noted, the term role model is ubiquitous, but it is also vague and open to manipulation. Just two days after Nicol informed us that the England football captain is a role model, the MP John Hemming was reported by the BBC as claiming that he is no ‘role model of rectitude’ and that people should not be electing members of Parliament with such considerations in mind10. It took only a matter of hours after the recent X Factor final for the first headline: ‘Little Mix – the ultimate role models’11.
The danger and incoherence of the role model argument is clear. The press is free to generate role models at will, lining up their next victim. One need only consider a figure like Jade Goody, elevated from pantomime villain to pantomime heroine at the media’s creation. At what point along such a sliding scale of press coverage, or with what job title, should an individual lose the force of their right to privacy? The role model argument varies the inherent rights of the individual dependent on how they are portrayed, and consequently perceived, by others. It allows the media to generate a legally binding version of an individual contrary to the ideals of the European Convention on Human Rights, being rights for all. In enacting the Human Rights Act, Parliament did not provide separately for the private lives of those with talent, based on the idle curiosity of the masses.
If the press is motivated by the more fulsome development of children and reducing their exposure to (what a particular editor or journalist considers) ‘wrongdoing’, then revelations of such wrongdoing can only serve to hinder that aim. It certainly provides no justification for increasing the scrutiny of the private lives of those in the worlds of entertainment, sport, fashion and so on. Where the status quo would be that the information remains private, it is perverse to suggest that such conduct should be exposed due to the bad example it sets to young people. The example is only set by the revelation triggered by the self-serving argument.
The proper realm in which such public figures should be held to be role models is their conduct in the professional arena, be it on the pitch, in the dressing room, on the stage and so on. They should be no more role models for private sexual conduct than they should be for what constitutes a proper grasp of the English language. The argument that sport and entertainment stars are trying to protect their advertising revenue has been shown to be false by many such stars who continue advertising and charitable work following such revelations about their private lives.
The piety with which the press speaks about sexual conduct, and the acceptance of the role model argument by Nicol J, presupposes that footballers (for example) would cease to be role models if such conduct is exposed. For all the allegations against sportsmen, there is no evidence of them being any less revered for their footballing prowess by the next generation of budding footballers. And as Sir Stephen Sedley has noted, are such revelations going to improve the aspirations and morality of our youth or ‘suggest to [boys] that the great thing about being a professional footballer, or any other kind of media star, is that you can sleep with just about anyone?’12.
In the absence of any logical or moral core, one is left wondering whether this argument is anything other than a smokescreen for the commercial interests of the press.
CONCLUSION
The decision of the Court of Appeal in McKennitt v Ash, the decision of the House of Lords in Campbell and the views of Lord Phillips on role models in Campbell remain good law. Drawing on the driving theme of the case law, Nicol’s judgment in Ferdinand is best viewed as an aberrant characterisation of the England captaincy based on a close analysis of the facts in the case. It remains, however, impossible to reconcile with judgments of higher courts and should be treated accordingly, as a judgment that, far from the public interest, appears to further Baroness Hale’s ‘vapid tittle-tattle’.
Nicol J has sought to grant the media further control over individuals’ private lives. On Nicol’s approach the media are free to create role models at will, to create images of individuals as they choose and then to use broad arguments of ‘role models’ and ‘false image’ as carte blanche for invading the private lives of those from whom they can create the biggest sales revenue. Ferdinand’s appeal was withdrawn after he reportedly reached an agreement with Mirror Group on the eve of his first hearing before the Court of Appeal. While we wait for the Court of Appeal to have an opportunity to re-express its clear views on the role models concept, those in the public eye would do well to stay alert to allowing themselves to be pushed into ‘role model’ status, with the press waiting in the wings to make their next buck from deploying this transparently self-serving argument.
Notes
- McKennitt v Ash [2006] at para 11.
- Mosley v News Group Newspapers [2008] at para 98.
- ETK v News Group Newspapers [2011] at para 23.
- BCD v EFG [2010] at para 34 and Ntuli v Donald [2010].
- Jameel v Wall Street Journal Europe Sprl [2006] at para 147.
- A v B plc (Flitcroft v MGN Ltd) [2002] at para 11.
- Campbell v MGN Ltd [2002] at paras 40-41.
- Campbell v MGN Ltd [2004] at paras 120 and 57.
- McKennitt v Ash [2006] at para 64.
- Kitten theft case: I’m no role model, says MP Hemming, BBC News, 1 October 2011 (http://www.bbc.co.uk/news/uk-england-birmingham-15137307, last accessed 3 January 2012).
- MSN Celebrity News, 12 December 2011 (http://celebrity.uk.msn.com/features/little-mix-the-ultimate-role-models, last accessed 3 January 2012).
- Ashes and Sparks (Cambridge University Press, 2011), p314.