Refusal to stop John Terry story was not a privacy law U-turn, says expert

The English courts have given the privacy of celebrities increasing protection in recent years. Courts have said that the protection of the right to a private and family life give by the European Convention on Human Rights enables them to stop the publication of details of their private life.

But the High Court last week refused to extend an initial super injunction – an injunction whose existence cannot even be reported on – sought by Chelsea and England football captain John Terry.

The Court said that Terry did not qualify for the privacy protection conferred in other cases in relation to his alleged affair. Mr Justice Tugendhat said that the application for the injunction, which tried to stop the News of the World running a story on the alleged affair, was motivated more by Terry's fears for his business prospects than for a genuine desire for privacy.

"I think it likely that the nub of the applicant's complaint is to protect [his] reputation, in particular with sponsors," he said in his ruling. John Terry is not named in the case itself, but the News of the World and its sister paper The Sun have carried stories linking the case to his alleged affair.

Some commentators have suggested that the case illustrates a restriction on the recently-expanded privacy rights of celebrities, but privacy law expert Rosemary Jay said that the refusal to grant the injunction had more to do with how the case was actually brought.

"The applicant faced a number of difficulties in bringing his case for an injunction," said Jay. "The applicant himself did not give any evidence or present evidence from the person with whom he had the relationship. So the Court had no evidence that the parties involved would suffer any distress from publication. The judge seemed to doubt that as he commented that the applicant appeared to have a robust personality."

She said that the fact that the case was about commercial sponsorship agreements and reputation meant the injunction had to fail.

"The judge reviewed the law on the basis that the evidence suggested the action was being brought to protect a reputation because of commercial considerations. The law deals with reputation differently from the way it handles privacy. If the information is true an applicant cannot argue that publication should be restrained because it would damage his reputation," she said.

Jay also said that the Court found that it did not have as much evidence as it might have liked.

"The evidence relating to the proposed breach was collected apparently by some business advisers. It included a 'confidentiality agreement' with the other person but that was entered into after the event and was a formal document which gave no further information to the court about the view of that person," said Jay.

"I am not satisfied that the double hearsay account I have been given of the evidence of [Terry] and the other person is full and frank," said Mr Justice Tugendhat in his ruling. "This may not be a criticism of the lawyers or of the individuals concerned, but arises from the fact that their evidence has been collected and reported by non-lawyers: I do not know who is responsible for this."

The Court, therefore, did not have direct testimony about the events concerned. And neither did it have effective opposition, meaning that some crucial arguments could not be put forward.

Mr Justice Tugendhat said in his ruling that newspapers were not informed of the injunction, meaning that there were arguments that he could not hear.

"Notice has not been given to any newspaper when it should have been, and, as a result, I have not had the benefit of arguments in opposition to the application, which might have assisted me to be satisfied of the matters of which I am not satisfied," he said.

Jay said that the lack of counter-arguments from the media was crucial because Terry's right to privacy had to be balanced with another Convention right: the right to free speech of those making the allegations.

"The judge also looked at the facts in the light of the law on privacy, free speech and open justice," said Jay. "He repeated that no one Article [of the Convention] is paramount and there must be a balance. The applicants had not given notice to any newspaper of the application; the judge therefore heard no arguments about public interest and publication."

"In the absence of a party to speak for the media he heard no arguments at all and could not undertake a proper balancing exercise," she said.