Terry ruling does not mark "sea change" in favour of press

2 February 2010

Mr Justice Tugendhat’s decision to overturn an injunction granted in favour of England captain John Terry does not mark a “sea change” in the way courts apply privacy laws, solicitors have said.

The ‘super-injunction’ was granted by Tugendhat J ten days ago to prevent details of Terry’s affair with a French underwear model, the ex-partner of team mate Wayne Bridge, being published. It was overturned on Friday, allowing the tabloids to publish stories over the weekend.

“All these cases have to be dealt with on their facts,” Sarah Webb, partner at Russell Jones & Walker, said.

“Clearly John Terry’s article 8 rights were invoked and the court had to do a balancing act.

“The way the precedents in these football cases have gone it is not surprising if his solicitors thought they would get the injunction and hang on to it.

“Tugendhat was not saying Terry does not have a claim for breach of privacy. However I can’t imagine he will take action because I don’t believe he wants his private life poured over in any more detail than now.”

Webb said there were no similarities between the Terry case and Mosley. She said that, having lost his bid for an injunction, Mosley launched his privacy action to try and make a point.

“The media is dying to say that this is some kind of sea change. I don’t think it is.”

David Hooper, partner at Reynolds Porter Chamberlain, said that although this was not a great change, injunctions had previously been handed out too readily.

“It is meant to be a balancing exercise, but hitherto only lip service has been paid to article 10,” he said.

“One gets the impression from Mr Justice Eady that article 10 must fall in line with article 8, whereas Mr Justice Tugendhat gave greater weight to article 10.

He is looking at things much more critically.

“It is not a question of changing the law, but it is a question of slightly readjusting the fence.”

Hooper said that public interest arguments that Terry was a role model were a “difficult area”.

He said he thought it “extremely unlikely” that Terry would sue for damages for breach of privacy since he was wealthy and the last thing he wanted was more publicity.

Giving judgment in LNS v Persons Unknown [2010] EWHC 119(QB), Mr Justice Tugendhat gave a mixed bag of reasons why the injunction should be overturned.

He said he thought it likely that that the “nub” of Terry’s complaint was to protect his reputation, particularly with sponsors.

He said no notice had been given to defendant newspapers “when it should have been” and the granting of an interim injunction would not be proportionate.

Tugendhat J said: “This is not a case where, on the evidence before me, the potential adverse consequences are particularly grave. On the evidence, including the attachments to the exhibit, I do not think it likely that LNS [Terry] regards as particularly sensitive information of the kind that is sought to be protected.

“As Eady J has observed in Mosley, different people have different views on matters of conduct. But since the attributes of the applicant are among the relevant circumstances, the less sensitive the information is considered by the applicant to be, and the more robust the personality of the applicant, and the wider the information has already spread in the world in which the applicant lives and works, the less the court may find a need to interfere with the freedom of expression of others by means of an injunction.

“The test includes proportionality. Damages may be an adequate remedy in some cases, if not in all.”