John Terry: why the injunction failed to protect his privacy

I have a lot of sympathy for John Terry.  Whenever there are lurid headlines of the form “Celebrity romp with mystery hunk”, I instantly worry that I have been identified.  No doubt, this weekend will see more “revelations” and “privacy” versus “the public interest in the prurient” will be in the headlines again.

John Terry’s injunction failed because the main worry was not his privacy. In summary, this is not a case of “privacy” versus “freedom of expression”; it is a case of “can we use a privacy argument to stop damage occurring to an individual’s commercial interests”. To show this, I thought readers might want to read the “real McCoy” and to make things clear, I reproduce the two paragraphs of the judgment.

To keep his name out of the transcript, the transcript uses “LNS”  for John Terry (JT). Note that as the next letters along from LNS is JMT, so the court has not employed what is called in the trade “a strong encryption algorithm”.

One key paragraph is paragraph 95. It says:

“On the evidence available to me now, I have reached the view that it is likely that the nub of LNS's complaint in this case is the protection of reputation, and not of any other aspect of LNS's private life. I note that in the evidence the most LNS is said to have expressed is "grave concern over the possibility of intrusion into [LNS's] private life". There is no mention of any personal distress. As to personal attributes, LNS appears to have a very robust personality, as one might expect of a leading professional sportsman. It does not seem likely to me that the concern expressed on [LNS's] behalf for the private lives of the other person and the interested persons is altruistic. This claim is essentially a business matter for LNS. That is why the assembling of the evidence has been put into the hands of the business partners and not of the solicitors. My present view is that the real basis for the concern of LNS is likely to be the impact of any adverse publicity upon the business of earning sponsorship and similar income”.

At the end of the judgement, the Judge declined to make any order for the following reasons:

“i) There is a threat to publish information about the fact of the Relationship, but I am not satisfied that the applicant is likely to establish that publication should not be allowed;

ii) I think it likely that the nub of the applicant's complaint is to protect [LNS’s] reputation, in particular with sponsors…

iii) I am not satisfied that the double hearsay account I have been given of the evidence of LNS and the other person is full and frank….

iv) I am not satisfied that the applicant is likely to establish that there has been a breach of a duty of confidence owed to LNS;

v) … I am not satisfied that the applicant is likely to succeed in defeating a defence that it would be in the public interest for there to be a publication;

vi) There is insufficient evidence of a threat to publish photographs or sensitive details about the Relationship.

vii) Notice has not been given to any newspaper when it should have been, and, as a result, I have not had the benefit of arguments in opposition to the application, which might have assisted me to be satisfied of the matters of which I am not satisfied.”

So there you have it: a case of commercial interest versus freedom of expression.

Reference: LNS v Persons Unknown [2010] EWHC 119 (QB) (29 January 2010).