Case Comment: Ferdinand v MGN
Sport
Comment | 10 October 2011
The balancing act between an individual’s right to respect for their private life and the media’s Article 10 right to freedom of expression swung back in favour of the media (at least for now) in the recent privacy case brought by Rio Ferdinand against Mirror Group Newspapers [1], the first privacy trial since Max Mosley’s successful claim against News Group Newspapers in 2008.
Ferdinand had brought a claim in respect of allegations made by the Sunday Mirror about his relationship with Carly Storey, a woman he had known since they were both teenagers in the 1990s. The article claimed that, in February 2010, Ferdinand dumped Ms Storey after having been appointed England captain, out of fear that he would be exposed in the same manner as his predecessor. Shortly after her last contact with Ferdinand, Ms Storey engaged Max Clifford.
Earlier this year Clifford said that only 20% of the stories he sells would pass the public interest test and that might explain why the Sunday Mirror did not give Ferdinand any notification that they intended to publish the article, perhaps fearing that Ferdinand would successfully obtain an injunction if he was given the opportunity to do so.
Ferdinand brought a claim for misuse of private information and breach of confidence. The Sunday Mirror defended the claim on the grounds that their article was justified in the public interest, in order to correct the false impression and image that they claimed Ferdinand had cultivated over recent years – i.e. that he was a reformed character and family man. The Sunday Mirror also argued that its article contributed to an ongoing debate about the suitability of Rio Ferdinand to be England captain.
In his judgment, Nicol J agreed that the Sunday Mirror was entitled to correct the false image cultivated by Ferdinand and so the article was in the public interest. This reasoning would be uncontroversial, following Campbell v MGN [2] , if Ferdinand had actually made false public statements, however, the Sunday Mirror did not claim that he had made any such false public statements. Instead, they claimed that they were correcting an “image” that he was “reformed”. In this context, the Judge may have granted the Sunday Mirror more leniency than would have been expected.
Also in contrast to Campbell, the additional details published by the Sunday Mirror – an old photograph of Ferdinand and Ms Storey and a text message – were held not to excessively intrude into his private life.
Nicol J also held that the article contributed to a legitimate public debate about the suitability of Ferdinand as the England captain. This is a significant decision in favour of the media and may be used by the media as support for publishing articles about the infidelities of those in the public eye, particularly footballers, who are often the focus of such stories.
Many will see the Ferdinand decision as an unwelcome departure from recent case law and signaling a return to the ‘role model’ cases such as Flitcroft [3].
In Ferdinand, Nicol J held that being England captain “carried with it an expectation of high standards” and that there were “many who would … see the captain at least of the England football team as a role model”. Nicol J also stated that “his relatively recent past failings could legitimately be used to call into question his suitability for the role”.
There are those who can expect a greater degree of intrusion into their private life due to their job, for example politicians, however Nicol J is suggesting that, because some people view the England football captain as a role model, every England captain must accept a greater degree of intrusion into their private life. Mercifully, Bobby Moore didn’t suffer such intrusions during the 1960s and was allowed to concentrate on winning the World Cup for England.
In light of the Ferdinand decision, do we risk the next England captain being picked because they are least likely to be the target of a media attack, rather than picking the best man for the job?
There are a number of aspects of the case that stand out. The “public interest” the Sunday Mirror identified was very weak and the subject matter of the article may more accurately be described as “of interest to the public”. Second, the speech which was protected was hardly in the upper echelons of those protected by Article 10. It was closer to what Baroness Hale would describe as “vapid tittle tattle” than any form of political speech or true public interest journalism.
Whether Nicol J’s judgment will be overturned on appeal or followed in subsequent cases remains to be seen. Ferdinand was refused permission to appeal by Nicol J himself, but has indicated that he will renew his application before the Court of Appeal.
Irrespective of the eventual legal outcome of this case, what it does demonstrate is that the mistakes that footballers make in their youth are often used against them much later and they may never be able to be shake them off completely. Younger players in particular need to be educated about these risks and how their behaviour is impacted by the tabloid press holding them out as role models, even if that is not how they see themselves.
1. Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB)
2. [2004] 1 AC 457
3. [2004] QB 195
