Privacy Law in the UK: A game of snakes and ladders.

Steve McClaren – ‘a man from whom the public could expect a reasonably higher standard of conduct’- Mr Justice Lindblom, 2012.

Former England Football manager Steve McClaren failed in his attempt to prevent The Sun publishing a story about an affair he had with an unnamed woman in Manchester.

Mr Justice Lindblom held that Mr McLaren did have a reasonable expectation of privacy in respect of the affair but that, in the circumstances, the public interest in publishing outweighed his right to privacy.

What does this decision tell us about the law of privacy?

Easy. It confirms what we’ve known for quite a while now: that the law of privacy is arbitrary, random, haphazard.

Parties to privacy cases may as well play a game of snakes and ladders to determine the outcome.

In fact, the snakes and ladders method would be so much quicker and cheaper (and just as logical) it’s surprising Sir Rupert Jackson hasn’t included such a recommendation in his report for reigning in civil litigation costs.

So what is it about Lindblom J’s judgment that confirms that the law of privacy is about as settled as a jelly on a tube train?

Well, Lindblom accepted without difficulty that McClaren had a reasonable expectation of privacy in respect of the affair. Which seems highly questionable.

Questionable, because the courts have established that while sexual details may be private, the bare fact of a relationship between two parties will frequently not be private. In other words – saying McClaren and SA had an affair might not be private information but printing intimate details about what McClaren and SA got up to, probably would be).

For example, in Hutcheson, Eady J described the privacy case before him then as:

a 'bare fact' case; that is to say, the court is concerned only with the bare fact of the familiar relationship… Factual information of that kind may sometimes involve a relatively low degree of intrusion. It may be reasonable to treat it discreetly, but that is not the same as enforcing a right to keep it secret vis-à-vis the right of another to exercise freedom of speech by referring to it. In the circumstances of this particular case, I would hold that there is, at this stage, no reasonable expectation of privacy’ (at [36] see [8] in the Court of Appeal judgment).

But Lindblom J didn’t address this distinction. He simply held that he had ‘no difficulty in accepting’ that McClaren had a reasonable expectation of privacy in respect of the affair.

It is key that this issue wasn’t in dispute – The Sun focused on arguments about public interest. But it’s still strange that the judge didn’t mention any distinction between classes of private of information.

The issue is relevant because Steve McClaren was photographed in public with the woman he had an affair with – including leaving her flat.

Surely if a well-known person is willing to walk in and out of another’s home, in public, in daylight, in order to conduct an affair, that makes their expectation of privacy a little less reasonable?

The test of reasonable expectation of privacy is fact-sensitive – it depends on all the circumstances of the case (Murray v Big Pictures). But it is difficult to see how, in this case, it was accepted so readily. As if there is no reasonable expectation of privacy, the issue of the public interest does not even arise – The Sun would have been free to publish regardless.

The curious case of quasi-anonymity

Another interesting point arising from the judgment is that the woman Steve McClaren had the affair with is named in The Sun as Saima Ansari. She posed for photographs and the judgment says that she had ‘willingness or enthusiasm to see the defendant's article about their affair published’ (at [34]). And that ‘the story may have been set up by SA herself. The photograph of the claimant and her in the street was probably taken because she had told the journalist who took it what was going on’ (at [25]).

Yet in the judgment, she is referred to as simply 'SA'.

Of course, it’s not difficult to work out who she is (this article has already printed her name) but by avoiding using her full name in the judgment, Lindblom J effectively granted her anonymisation. She may have been a non-party, but she was an extremely interested non-party.

In light of the Practice Guidance issued in 2011 by Lord Neuberger, which said: ‘anonymity will only be granted where it is strictly necessary’ (at [12]), it seems incredibly strange that Lindblom J felt he should only refer to Saima Ansari in the judgment as SA.

It was clearly not strictly necessary.

So, privacy is where we thought is was before – in no mans land.