Wednesday, 12 October 2011

Ferdinand v MGN Limited [2011] EWHC 2454 (QB): caught offside

Can an England captain keep the media shtum when they find he’s playing away?  No.  His right to privacy is trumped by the public’s right to know.
Does this contradict past privacy cases?  Naomi Campbell seeking treatment or Max Mosley seeking other sorts of treatment?  No.  They never made a big deal of their afflictions.  Mosley never held himself out as a paragon of marital virtue; Campbell never held herself out as a paragon of private sobriety.  The media knew this.  Hence the News Of The World trying to tie a Nazi angle into the Mosley story.  The public need to know if the head of an organization that represents them has political views that would cause his impartiality into doubt.  Mosley is not a Nazi; the removal of that angle removed the public interest.
So why does the public have a right to know that Rio Ferdinand had had an on-off affair for a dozen years?  Because his private life had a bearing on his position.  Fabio Capello (England boss) said that he appointed Ferdinand as England captain because he was a good example.  Unlike his predecessor – dismissed due to an alleged affair.  Ferdinand wrote in his autobiography (or at least had had written for him) that he had given up the party lifestyle some years before when he settled down with his fiancée.  He had said to a newspaper that he was now quite the family man.
All of these factors calculated to lead people to believe that Rio Ferdinand was an upstanding member of society; that he was someone who could be trusted.  That’s one thing, but as part of it his name was valuable.  The family man was paid to advertise things because he was a family man.
So when the Mirror published a kiss & tell story, and Ferdinand sued for the obvious breach of his privacy, the Mirror dragged this past history up.  Privacy is not an absolute right.  Sometimes the public’s need to know overrides someone’s privacy; it’s in the public interest to find a politician is a crook.  This is more at the minor end.  It is also, says the Court, in the public interest to correct a false image.  The Mirror claimed that this is exactly what it was doing.  Ferdinand was not the chillaxed role model; he was still conducting an affair at the moment he was made England captain.
Therefore the Court allowed the publication.  There was a limited right to privacy – the Mirror could not be too intrusive – but the Mirror was on the right side of that.
It could have been very different.  Had Ferdinand been a Paul Scholes, for example, a player who famously keeps his private life out of the public eye, there would surely have been no public interest; only if it had affected his performances, for example.  But there would be no false public image to correct so no justification.  Had Ferdinand not “written” a book or sought to correct a negative image in the media, he might have been fine...

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