Media Law Essay - Grade: 60% (Rio Ferdinand - privacy) PDF

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For your essay, you must choose one of the following five media law cases to examine. You will be expected to outline the law(s) and / or ethical codes involved, explain the judgment(s) in this case, refer and compare to other relevant cases in these areas of media law and ethics, and give your own ...

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On April 25th in 2010, an article was published in the Sunday Mirror about Rio Ferdinand's secret relationship with Carly Storey, named: “My affair with England captain Rio”. The article alleged that Ferdinand had been having an affair for 13 years, from 1997 to 2010 (Anderson, 2010), despite him meeting his future wife in 2000 and having a first child out of three with her in 2006. Former Manchester United defender decided to terminate the relationship after being made England captain in February 2010 and that was probably not a coincidence. His predecessor, John Terry, has been stripped of captaincy just five days before following allegations he had an affair with an England team-mate's exgirlfriend (BBC News, 2010) and Ferdinand was probably afraid he would be exposed just like him. Nevertheless, his secret was out and he decided to open a legal action against Mirror Group Newspapers (MGN) because he believed that the article was a misuse of his private information and a breach of confidence (Hastings, 2011). Ferdinand decided to use his right of Article 8 of the European Convention on Human Rights which states that “everyone has the right to respect for his private and family life, his home and his correspondence” (Dodd and Hanna, 2016) while MGN believed that they had the right to publish the article because it was in the public interest and they have the right to Article 10 of the European Convention on Human Right which states that “everyone has the right to freedom of expression” (European Convention on Human Rights, 2010). It was on the judge to balance the individual’s Article 8 rights against media’s Article 10 rights.

In the end, Rio Ferdinand lost his High Court privacy action against MGN since the judge, Mr. Justice Nicol, believed that “the balancing exercise favours the defendant's right of freedom of expression over the claimant's right of privacy” (BBC News, 2011). MGN’s counsel, Gavin Millar QC, 1

believed that Ferdinand was appointed England captain based on being reformed and responsible (BBC News, 2011) which he wasn’t. Furthermore, he also argued that this case was not about Ferdinand’s privacy but about the effect on the public image he had constructed (BBC News, 2011). Ferdinand gave an interview to the News of the World in 2006 where he spoke of himself as a reformed family man (5RB, 2011) who is not who he used to be, and also said that he is not cheating his long-term partner, Rebecca Ellison, but he was lying since he terminated the relationship with Storey in 2010. He repeated the same in his autobiography “Rio: My Story”, which was published in 2007. Therefore, he created an image of being a good father and husband, but it was in a public interest to demonstrate that his ‘clear’ image deceived public and the article published by Mirror proved that. Since Ferdinand was appointed England football team captain, it was again in the public interest to reveal that he was behaving like a person in his position shouldn’t. Many believe that captain of the national football team should maintain high standards, as well as be a role model on, but also off the pitch. Since Terry was sacked as a captain for the similar reasons, people should know that the next England captain also is not representing the role he has been given in a fashion that society expects and that is why is understandable that MGN had won the case. Ferdinand against MGN was the first privacy trial in which the disclosure of an extra-marital affair was considered justified in the public interest (5RB, 2011), but there was similar case to this one in which supermodel Naomi Campbell won a privacy claim in the House of Lords after suing Mirror Group Newspapers (Dodd and Hanna, 2016). The Daily Mirror published photos of her emerging into the street after having a therapy session with Narcotics Anonymous for drug addiction (Dodd and Hanna, 2016). Campbell believed that there was a breach of her Article 8 privacy rights, breach of confidence and infringement of the Data Protection Act 1998 (Dodd and Hanna, 2016). Five judges had to balance between individual’s Article 8 rights against media’s Article 10 rights, but unlike in Ferdinand’s case, 2

Campbell won and showed how Article 8 had changed the UK’s legal landscape. Dodd and Hanna wrote in their “Essential law for journalists” that in her case there were five distinct ‘elements’ of private information: the fact of Ms. Campbell’s drug addiction, the fact that she was receiving therapy for it, the fact that she was having therapy at Narcotics Anonymous (NA), details of the NA therapy and her reaction to it and surreptitiously obtained photographs of her emerging from an NA session (Dodd and Hanna, 2016). It is understandable that first and second fact could be published in the public interest because she is a role model who previously denied using drugs. Two of the judges understood that and said the third, fourth and fifth categories added little of significance to the disclosure of the first and second (Dodd and Hanna, 2016). But, three of the judges, the majority, held that Article 10 considerations could not justify the publication of the information (Dodd and Hanna, 2016). This time Article 10 prevailed over Article 8, and that’s confusing. It is understandable that media wanted to show the world that her public image is false. Campbell publicly said that she is not using drugs while there are photographs showing the opposite. It is similar to Ferdinand’s case because she portrayed herself as someone who she is not and as a big role model people have right to know if she has been lying. Maybe publishing details regarding her therapy was not necessary, but if Article 10 rights won in Ferdinand’s case so maybe the same should have been applied in Campbell’s case as well.

Another case bears resemblance to these two and it once more involves former Manchester United football player. This time it was Ryan Giggs who had an affair, but his case was slightly different than the one of his former team-mate. Giggs claimed damages for alleged misuse of private information by News Group Newspapers (publishers of the Sun) and an injunction to prevent future publication of 3

private information (Plankett, 2012). He sued after the Sun published an article about a “footie star” who was allegedly having an affair with model Imogen Thomas, on 14 April 2011 (Plankett, 2012). Giggs wasn’t identified in the story but was subsequently named on Twitter and by MP John Hemming in the commons (Plankett, 2012). NGN believed that Giggs’ claim was “dead in the water” and should be stopped and high court judge Tugendhat sided with them (Plankett, 2012). Just like his former team-mate, Giggs was uncovered as an unfaithful man when the story was published in the Sun. The difference between two cases is that Giggs managed to stop the Sun from naming him in the story while Ferdinand did not have that ‘luxury’. It is amazing that is the case since Ryan Giggs was also a huge role model for many people. He was also a captain of Welsh national team, many times captain of Manchester United and later, in 2012, he became a captain of the Great Britain team that competed at the 2012 Summer Olympics. It makes you wonder what is the point of Article 10 if it is interpreted differently in different cases. One more case that covers this area of media law and ethics is the one of Princess Caroline of Monaco who believed that her privacy was breached by the publication of photographs of scenes from her daily life (Dodd and Hanna, 2016). The princess and her husband argued that a photo of the couple on holiday while her father, Prince Rainier, was ill violated their privacy (BBC News, 2012). German courts rejected their argument, so they took the case to Strasbourg, but the human rights court upheld the German decision (BBC News, 2012). The court said a photo of Princess Caroline and Prince Ernst August of Hanover taking a walk in St Moritz as part of an article on the poor health of her father Prince Rainier of Monaco was a subject of general interest (BBC News, 2012). The manner of this case differs from Ferdinand’s, but it again shows how different judges balance Article 8 rights against Article 10 rights. Rio Ferdinand was great on a football field, but what he did off the pitch was not honourable. Not only he cheated on his wife, but he also, for example, missed a routine drug test because he had

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forgotten to do it and was banned from football for eight months because of that. Former Manchester United defender was also caught drink driving once, and it is safe to say that he didn’t represent an ideal behaviour of a modern football player. Undoubtedly, he was a role model to many and how could he not be. He won six Premier League titles in 10 years and was also named six times in a Premier League team of the year. On top of that he became England captain in 2010, and when you see all these facts about a famous football player it makes you understand why he lost his case against MGN. He was a role model and probably not that kind that makes a parent proud when their kid says: “One day, I want to become just like Rio Ferdinand.” MGN had every right to expose Ferdinand because he was portraying himself as someone who he is not, and that was in the public interest because people deserve to know when someone who might be an idol of, for example, some little kid is lying. But the question is will exposure like this be a normal thing in the future. The research in June of 2016 showed that the number of privacy and celebrity injunction cases being brought before the courts has more than doubled from 2009/10 (28) to 2014/15 (58) (Whitehead, 2016). Privacy cases came at a rate of one a week and one in five included a celebrity or politician (Whitehead, 2016). Celebrities will do everything in their power to stop from being named in articles that will portray them as a liars or hypocrites, and injunction is certainly one way of doing it.

Even though they are old, cases like Ferdinand’s, Giggs’, Campbell’s and the of Princess of Monaco bring up a very hard question to answer: How much privacy should, and can, celebrities, who make their living in the public eye, expect? For example, football players. Their almost every move is tracked by public eye and it seems like there is nothing they can do about it. But not only them. The same issue have all kinds of athletes, actors, singers, models, politicians… In this day and age, it is almost 5

impossible for them to hide let alone do something illegal that will go unnoticed. Media commentator Mark Borkowski once said that celebrities need to realize that to a certain extent they are public property (Hassan, 2011). And that is, scarily for them, to the certain extent true. But once people become famous they should really understand that they need to be careful what are they doing. That doesn’t mean that they have no right to privacy. They have. But the truth is that they have little less right to privacy than average human being and it is the fact that they have to reconcile with. Being a public figure today is a job on its own it seems. Celebrity PR consultant Max Clifford summed it up perfectly: “The press must be free, but they must be responsible” (Hassan, 2011). Word Count: 1956

Bibliography 5RB. (2011). Ferdinand v MGN Ltd - 5RB. [online] Available at: http://www.5rb.com/case/ferdinand-vmgn-ltd/ [Accessed 7 Jan. 2018]. Anderson, G. (2010). My affair with England captain Rio. [PDF] Sunday Mirror. Available at: http://www.matthewhunt.com/blog/text/sundaymirror.pdf [Accessed 6 Jan. 2018]. 6

BBC News. (2011). Rio Ferdinand loses privacy case. [online] Available at: http://www.bbc.co.uk/news/uk-15114365 [Accessed 7 Jan. 2018]. BBC News. (2012). Monaco royals in privacy defeat. [online] Available at: http://www.bbc.co.uk/news/world-europe-16933815 [Accessed 8 Jan. 2018]. European Convention on Human Rights. (2010). [PDF] Strasbourg: European Court of Human Rights. Available at: http://www.echr.coe.int/Documents/Convention_ENG.pdf [Accessed 7 Jan. 2018]. Hanna, M. and Dodd, M. (2010). McNae's essential law for journalists. 23rd ed. Oxford: Oxford University Press. Hassan, G. (2011). Can celebrities expect privacy? [online] BBC News. Available at: http://www.bbc.co.uk/news/entertainment-arts-14151678 [Accessed 8 Jan. 2018]. Hastings, R. (2011). Ferdinand sues over 'Mirror' affair story. [online] The Independent. Available at: http://www.independent.co.uk/news/people/news/ferdinand-sues-over-mirror-affair-story2306977.html [Accessed 6 Jan. 2018]. News.bbc.co.uk. (2010). BBC Sport - Football - John Terry stripped of England captaincy by Capello. [online] Available at: http://news.bbc.co.uk/sport1/hi/football/8495604.stm [Accessed 6 Jan. 2018]. Plunkett, J. (2012). Ryan Giggs loses battle for Sun damages. [online] the Guardian. Available at: https://www.theguardian.com/media/2012/mar/02/ryan-giggs-the-sun-imogen-thomas [Accessed 8 Jan. 2018]. Whitehead, T. (2016). Celebrity injunction and privacy cases double in five years. [online] The Telegraph. Available at: http://www.telegraph.co.uk/news/2016/06/12/celebrity-injunction-and-privacy-casesdouble-in-five-years/ [Accessed 8 Jan. 2018].

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