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17 May 2011
The Court of Appeal's judgment in ETK v News Group  EWCA Civ 439 has prompted gasps of horror from some sections of the media. More surprisingly, the public - often suspicious of media self-interest in these matters - may think that the newspapers are right and that the courts have gone too far.
The case concerns a married man, ETK, who works in the entertainment industry. He and his wife have two teenage children. In about November 2009 he began an affair with a married work colleague, X. In April 2010 ETK's wife discovered the affair and confronted her husband. He agreed to end the affair and the couple resolved to remain together. Although it was awkward for him to continue working with X, he did so, but in December 2010 their employer decided that X's services were no longer required. X was upset and angry, and appears to have threatened proceedings against the employer.
In the meantime, the affair had become known to ETK and X's colleagues and to the employer's senior management, possibly as a result of disclosures by ETK or X.
The News of the World newspaper learned of the affair. This fact became known to ETK, who applied for an injunction to prevent publication of the fact of the affair.
The judge refused to grant an injunction. He decided that although ETK had a reasonable expectation of privacy, there was a public interest in the effect of the affair on X's continued employment and it was therefore permissible for the newspaper to report the fact of the affair and X's resultant dismissal. Although the interests of ETK's children were urged on the judge, he decided that any adverse effect on them did not tip the balance.
Reasonable expectation of privacy
The Court of Appeal considered that ETK had a reasonable expectation of privacy. The judgment stated that:
"Here the sexual relationship was essentially a private matter. One way or another it became known to work colleagues but their knowledge does not put the information into the public domain – see Browne v Associated Newspapers Ltd... In my judgment the appellant was reasonably entitled to expect that his colleagues would treat as confidential the information they had acquired whether from their own observation of the behaviour of the appellant and X or from tittle-tattle and gossip which larded the office conversation or from a confidential confession to a colleague. A reasonable person of ordinary sensibilities would certainly find the disclosure offensive."(1)
This judgment is questionable. If a workplace affair becomes known to colleagues, why should its disclosure be regarded as offensive? If the affair has become widely known, it might be argued that it becomes equally offensive for those with the most vital interests in the matter - the couple's families - not to know. There are many reasons why people might reasonably expect workplace affairs not to remain secret. In some circumstances such affairs cause obvious conflicts of interest and encourage suspicions of favouritism; they may also have a direct and harmful effect on job performance.
The approach taken in this judgment leaves a number of questions unanswered. For example, does the knowledge of work colleagues never put a workplace affair into the public domain, even if everyone in the company knows? How many supposedly confidential disclosures does it take before the information ceases to be truly confidential? Can someone in ETK's position tell as many people about the affair as he or she wishes, provided that this is off the record? Is it fair to describe the disclosure of workplace affairs as "tittle-tattle and gossip"? The disclosure of an affair between the chief executive of a public authority and its head of human resources would surely be more than mere gossip.
The judge who refused ETK's application for an injunction was operating as the weekend duty judge and had to deal with the matter quickly and at short notice. Nonetheless, on the evidence before him, he considered that there was a legitimate public interest in publishing the fact of the affair because it appears to have resulted in X losing her job.
Regrettably, the Court of Appeal judgment is unhelpful in explaining why the court disagreed with the judge on this point. There appears to be a public interest in knowing that a female employee, apparently in the public eye, had lost her job because of an affair with a colleague. However, the court stated that:
"Here there is no political edge to the publication. The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication. The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public...
The decisive factor is the contribution the published information will make to a debate of general interest. Is a debate about the reasons why X's employment terminated a matter of such public interest? Both the appellant and X will be known to a sector of the public though it is impossible to measure how large – or how small – that sector is. Certainly some members of the public will have noticed the end of her employment: a proportion of them will even have speculated why she left. But the reasons for her leaving give rise to no debate of general interest. The reasons for her leaving may interest some members of the public but the matters are not of public interest. Publication may satisfy public prurience but that is not a sufficient justification for interfering with the private rights of those involved."(2)
This approach appears to take a narrow view of the public interest. It seems extreme to suggest that a report that is restricted to the fact of an affair and the consequent dismissal of the woman involved would do no more than "satisfy public prurience". If the couple had been engaged in positions of public trust, the position might have been different, but the judgment is unilluminating.
Interests of children
The crux of the Court of Appeal's decision was as follows:
"In my judgment the benefits to be achieved by publication in the interests of free speech are wholly outweighed by the harm that would be done through the interference with the rights to privacy of all those affected, especially where the rights of the children are in play."(3)
It is well established that in conducting the necessary balancing exercise between the competing rights of privacy and freedom of expression, an intense focus is required on the comparative importance of the rights in question. It is equally well established that a court must consider not only the claimant's rights, but also the rights of others - for instance, the woman with whom the claimant has had an affair and any children who may be affected by publication. However, the degree of importance attached to the rights of the children in ETK is new.
In the refusal of the injunction, it was stated that:
"[The] last concern relates to the claimant's children. As Mr Tomlinson rightly points out, there is likely to be an adverse effect on them if the News of the World discloses the fact of the adultery. One recognises the concerns that this issue raises but unfortunately if one parent behaves in a way that attracts adverse publicity it will affect the children. This is not something which can tip the balance if there is otherwise no good reason to grant an injunction."
This seems to be a sensible assessment. Children may well be affected by the consequences of their parents' adulterous affairs, although press coverage might be considered one of the less serious consequences. Moreover, it could be argued that there is something unattractive about using the consequences of one's behaviour on one's children as a means of bolstering one's case against a newspaper, particularly if the children are unaware that their rights are being asserted.
The Court of Appeal fundamentally disagreed with the approach taken in the refusal of the injunction. It criticised the judge for failing to take proper account of the fact that both ETK's wife and X were opposed to publication. However, the sharpest criticism was reserved for the suggestion that the children's interests should not tip the balance against publication.
It is unclear from the judgment whether the court had evidence of the likely effect of publication on the children. It is not even clear whether the children knew that their father had had an affair. However, the judgment is clear on the issue of adverse effects:
"The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment."
These generalisations seem questionable. It could be argued that many people with experience of teenage children are more struck by their solidarity and resilience in the face of ordeals, such as death and divorce, than by their cruelty.
It has been suggested that the decision in ETK will strengthen the hands of claimants seeking privacy injunctions. It certainly appears to put the media further on the defensive, despite the recognition of the importance of a free press.(4) The law and the media are likely to hear much more about the potential harmful effects of press freedom on children involved in such cases. It is to be hoped that judges who hear injunction applications will consider such arguments critically and not simply accept them at face value. As the Court of Appeal recognised, "the interests of children cannot be treated as a trump card".(5)
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