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Case Law: King v Sunday World, Northern Ireland privacy and harassment claim
15 October 2010 --
We have now been provided with a copy of the judgment of Mr Justice Weatherup in
the case of King v Sunday World. We discussed the news reports of this case last
month. The claim was under Article 2 of the Convention, for misuse of private
information and harassment by a newspaper.
The claimant, Drew King had formerly been charged with murdering a Sunday World
journalist, Martin O’Hagan, who was shot dead near his home in Lurgan, County
Armagh, in September 2001. The murder charges against him and his co-accused
were withdrawn in July 2010. Mr King sought an injunction to prevent publication
of his address and other information about his family circumstances. The Article
2 claim was successful, the privacy claim succeeded in part but the harassment
claim was dismissed.
The first claim considered by the judge was for an injunction to restrain the
publication of the plaintiff’s present or future addresses under Article 2 of
the European Convention on Human Rights on the basis that such publication would
result in a “real and immediate risk” to the plaintiff’s life. The judge was
satisfied “that there have been threats against this plaintiff for a number of
years from loyalist paramilitaries and from dissident republican paramilitaries”
[17]. He concluded that these threats presented a real and immediate threat to
the plaintiff’s life and that, as a result, his present and future addresses
should not be published [18-19].
Second, the judge considered the claim for misuse of private information. He
principles set out in decision of the Court of Appeal in Murray v Express
Newspapers ([2008] EWCA Civ 446) noting that there were two stages to the
inquiry. First, the plaintiff had to established a “reasonable expectation of
privacy”. He described the second stage in these terms:
“the balance between the right to privacy and the right to freedom of
expression. That balance includes consideration of a public interest that
justifies publication of the material in question and whether the degree of
intrusion generated by the publication is proportionate to the public interest“.
[23]
The claim concerned information five categories: (1) the address of the
plaintiff; (2) the wedding plans of the plaintiff and his partner; (3) the
partner’s details which include her identification and her workplace and her
family members. Fourthly, the child’s details which concern the identification,
the religion and the christening of the child. (5) the photograph of the
plaintiff and his partner. [25]
As the address of the plaintiff had been dealt with under Article 2, the judge
did not consider it further. In relation to the second category, the judge was
prepared to assume that there was a a reasonable expectation of privacy in
relation to particulars of the wedding. The defendant claimed that there was a
public interest justification for the publication of this material because it
concerned “the plaintiff’s drug dealing lifestyle and the ability to adopt
expensive plans for his wedding”. The judge accepted this and said this:
“The proportionality aspect concerns whether or not the private details that
were given were necessary for the purposes of the story in relation to the
investigation of the crime. I accept that the details were proportionate“. [29]
The third area was information concerning “the identity, work and family” of the
plaintiff’s partner. The judge accepted that, although she was not a party, “the
publication of details of family members of a particular person may engage the
Article 8 rights of that person” [30]. He noted that provisions of the Editor’s
Code of Practice on the Reporting of Crime to the effect that “innocent
relatives” have particular protection under the code. The judge accepted that
there was a reasonable expectation of privacy in respect of the information in
this category. He then considered the “public interest” arguments advanced by
the defendant:
“What is the public interest that the defendant asserts as justification for
publication of the material? The defendant relies on a number of matters. First
of all the lifestyle of the plaintiff arising from the proceeds of his criminal
conduct is said to be of public interest in the exposure of crime. Secondly it
is said that the plaintiff is a womaniser and there have been three women named
in connection with the plaintiff throughout the series of articles, although the
present objections relate to the present partner. Third it is said that the
plaintiff’s association with his partner is an instance of hypocrisy. The
plaintiff’s partner is said to be Catholic and therefore the defendant contends
that it is hypocritical of the plaintiff, as a member of the LVF, which has
targeted Catholics, to be the partner of a Catholic“. [33]
In relation to “identity” he accepted that the articles were concerned with the
plaintiff’s “criminal lifestyle” and went on to say
“It is almost inevitable that a spouse or partner who shares such a plaintiff’s
lifestyle will be drawn into any reporting of that lifestyle. I am satisfied
that there is a legitimate public interest in the identity of such a spouse or
partner of the primary subject of such an article who is said to profit from
crime, subject to any particular circumstances that would render their inclusion
in the publication inappropriate” [34].
In contrast, he held that published details about the partner’s workplace and
the members of the partner’s family “was not warranted on any of the grounds
relied on by the defendant” [35] He took the same view in relation to the
“religious affiliation” of the plaintiff’s partner. His conclusion in relation
to this category of information was as follows:
“Overall in relation to the plaintiff’s partner, I have accepted that the
balance of interests favours publication of her identity as an aspect of the
reporting of the plaintiff’s lifestyle. However I am also satisfied that the
balance of interests does not support publication of details in relation to her
workplace, her family members or her religious background as these details are
irrelevant to the justification for the identification of the plaintiff” [37].
Fourthly, there was information about the plaintiff’s child “including the
identification and religion of the child and the christening of the child“. The
judge accepted that there was a reasonable expectation of privacy in relation to
this information and, referred to the Editors’ Code of Practice. This stated
that in cases involving children under 16 editors must demonstrate an
exceptional public interest to override the normally paramount interest of the
child. He rejected the defendant’s justification argument.
The fifth category was photographs of the plaintiff and his partner which was
taken on private property. The judge said
“The justification for publication is that the photograph accompanies the
articles and shares their justification. I have found that the identification of
the plaintiff and his partner was justified. I am satisfied that their
identification by photograph as equally justified“
He held that the publication was proportionate as the photographs did not show
any embarassing or inappropriate conduct.
The judge then turned to the harassment claim. Reference was made to the well
known English case of Thomas v Newsgroup Newspapers Ltd [2001] EWCA Civ 1233.
The judge accepted that the series of articles in question constituted
harassment [42]. The issue was whether the conduct of the defendant, in
publishing these articles claimant – some of which were inaccurate and wrongly
contained private information – was “reasonable”. The judge’s conclusion was
that
“The present case is not attended by some exceptional circumstance which
justifies sanctions and the restriction on the freedom of expression that they
involve. Nor does the publication of the series of articles constitute an abuse
of the freedom of press which the pressing social needs of a democratic society
require should be curbed. Overall, on the question as to whether or not this
series of articles constituted reasonable conduct, I am satisfied that they did
and that they did not amount to harassment of the plaintiff” [46]
Comment
This is a rare example of a decision in a privacy case following a full trial.
Although the factual background is extremely unusual, a number of interesting
points of general interest arise.
First, there is the approach of the judge to the “balancing exercise”. He did
not conduct the conventional “parallel analysis” – looking in turn at the
justification for interference with the Article 8 and Article 10 rights in play
– but rather employed a two-part approach: considering whether there was a
public interest justifying publication and then whether the “intrusion” was
proportionate to that interest.
Although this may, in substance, be the same test as that analysed in the
English authorities it gives rise to a number of difficulties when the judge
applied it to the facts. In particular the judge did not analyse either the
degree of intrusion involved (the Article 8 question) nor the “value” of the
expression (the Article 10 question) and did not conduct any proper
“proportionality” analysis. The judge appears to treat the fact that the
interference with Article 8 rights was for a legitimate aim as decisive of his
“public interest” question. The absence of proportionality analysis makes it
difficult to understand the operation of the second part of his test.
Thus, for example, in relation to “wedding plans” the judge states that there is
a public interest “in relation to the investigation of crime” and then, on
proportionality, simply says “I accept that the details were proportionate”
[29]. It is difficult to understand why it is proportionate to reveal details of
a person’s wedding plans (as opposed, for example, the fact that an expensive
wedding was planned).
The analysis is even more difficult to follow in relation to the question of the
identification of the plaintiff’s partner. The judge found that the articles
concerned the alleged “criminal lifestyle” of the plaintiff – which was a
“legitimate public interest aspect” [34]. In relation to identification of the
partner the Judge simply says
“It is almost inevitable that a spouse or partner who shares such a plaintiff’s
lifestyle will be drawn into any reporting of that lifestyle”
This is a non-sequitur. The question is not “whether the partner will be drawn
into reporting” but whether there is a proper justification for identifying the
partner. It is difficult to see how such justification can be established on the
facts of this case. Reports of the type mentioned by the judge could plainly be
made without the partner being named. Bearing in mind the Article 2 background
and the nature of the reports it seems very difficult to justify naming the
plaintiff’s partner in this case.
Secondly, there is the decision on harassment. As far as we are aware, this is
the only “harassment by the press” case to have been decided at trial. Having
found that the defendant’s conduct was, prima facie, “harassment” the judge
considered the “reasonableness” defence on the basis that the plaintiff had to
establish some “exceptional circumstance” justifying sanctions on the press
[46]. We suggest that this is not the right approach. If there is harassment
then Article 8 is engaged and a “parallel analysis” must be conducted. The
plaintiff’s rights must be balanced against those of the press, with neither
taking precedence. On the one hand, the “speech” involved – involving exposing
allegations of serious crime and political violence – is obviously of very high
value. On the other, the interference with the plaintiff’s rights was also
serious. Bearing in mind the fact that some of the press coverage was inaccurate
and involved misuse of personal information, it is difficult to see how the
judge was able to conclude that the entire course of conduct constituted by the
press acticles was justified.
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