When playing away brings a score draw - but not for the press

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The case of the married professional footballer who obtained an injunction preventing a newspaper from publishing accounts of his affairs with two women has raised a firestorm of criticism in the press. Privacy law has recently been developing rapidly and the media face the threat of substantial curbs.

The case of the married professional footballer who obtained an injunction preventing a newspaper from publishing accounts of his affairs with two women has raised a firestorm of criticism in the press. Privacy law has recently been developing rapidly and the media face the threat of substantial curbs.

The point of departure for privacy law was the Human Rights Act, which incorporated the European Convention on Human Rights. Since then, celebrities have gone to court seeking to prevent intrusions into their private lives.

Sometimes they have tried to safeguard their commercial interests, too. For example, Michael Douglas and Catherine Zeta-Jones brought an action against Hello! for publishing pictures of their wedding when they had an exclusive deal with OK. Similarly, the Beckhams obtained an order against The Sunday People, preventing it from publishing pictures of the inside of their house. The court did not consider it necessary – as the paper sought – that the Beckhams give an undertaking that they would not sell their own pictures.

Some think that celebrities should choose between retaining their privacy or disposing of it and that human rights laws should not be used to protect potentially lucrative publishing opportunities. The legal basis for these privacy claims is still unclear. By and large, the injunctions are obtained at short notice and with little argument before the judges. The Court of Appeal is yet to consider any privacy case in any detail.

It is the Humans Rights Act which has given the impetus to claimants and the courts to develop this area and restrain the press. However, the Act states only that public authorities must act compatibly with the Convention. The courts have skirted this problem by stating that they themselves are public authorities.

It is true that the case law of the European Court does require the state to intervene and uphold rights under the Convention between private bodies when severe breaches are involved. But in privacy cases, the courts have imposed Convention obligations against private entities even when relatively minor infringements are involved.

There are a number of aspects in the case of the footballer that are a cause for concern. It appears that the player's affairs were conducted pretty much in public. It is surprising that the court should think that such matters should be subject to rights of privacy. Another problem – even if the footballer had a recognisable right to privacy – is how to balance that right with the rights of the two women to tell their own story? Will all autobiographies now be subject to legal action if they stray into the lives of others?

Perhaps the most concerning aspect of the development of the law is that judges appear to start from the presumption that a ban should be imposed. It is then for the newspaper to justify publication.

In the next few months we should see more clarity as more carefully argued cases reach the Court of Appeal. It is to be hoped that the pendulum, which has swung in favour of the rich and famous, swings back to protect the right to freedom of speech.

Dan Tench is in the media litigation department at lawyers Olswang

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