Judgment in steve McClaren's failed application for privacy injunction published

On the evening of saturday 18 August 2012 lawyers for the former England football manager steve McClaren sought an urgent injunction  to prevent the Defendant News Group Newspapers Ltd (NGN) from publishing a story in the following day's sun on sunday.  The story concerned an alleged extra-marital sexual encounter between McClaren and a third party (sA) earlier in that week.  A photograph had been obtained of McClaren and sA walking to sA' flat.  McClaren suspected the photograph was set up.  sA was happy for the story to be published and lawyers for McClaren claimed that she had sold her story to the paper.

In his judgment Lindblom J stated that he had applied the well-established two-stage test: (1) whether McClaren's rights under Article 8 were engaged and whether he had a reasonable expectation of privacy and (2) a balancing exercise between McClaren's Article 8 rights and freedom of expression under Article 10.  Lawyers for McClaren argued that he was entitled to privacy because the relationship had not been conducted in public and that the mere fact that he had previously been the England manager for a relatively short period some five years ago did not render him a role model and mean that there was public interest in the story.  NGN argued that McClaren clearly was a public figure and that consideration had to be given to his past - he had openly discussed a previous extra-marital affair with The sun in 2006.   Reference was made to previous interim privacy injunctions (including the Ryan Giggs case) which had not resulted in permanent injunctions being made.  NGN also referred to Rio Ferdinand's unsuccessful privacy claim against MGN Limited.

Lindblom J held that, in the circumstances of the case, the balance clearly fell in favour of publication, stating that "...in [his] view [the claimant is] undoubtedly a public figure..." and "...the claimant belongs to the category of those from whom the public could reasonably expect a higher standard of conduct."  The possibility that the photograph was set up for a "kiss and tell" was "...peripheral to the balancing exercise".  Lindblom J held that because he did not consider a permanent injunction would be granted he had refused to grant an interim injunction.

The case raises questions over the definition of a public figure (particularly in relation to individuals are not as prominent as they once were), to what extent those in the public domain are entitled to have their private lives protected and the classic distinction between the "public interest" and what the public are interested in.

The number of privacy injunctions sought has declined significantly since the so-called "superinjunction spring" of early 2011.  One reason for this is because the reporting of the proceedings themselves (and the relative ease at which the applicants could be identified online) was having the effect of promoting the stories the applicant's were seeking to restrain.  McClaren will give further food for thought to those seeking non-disclosure orders.

A full copy of the judgment can be found here.