APPENDICES
¶3.112 The correct approach based on present authority is that in conducting the balancing exercise
between Article 8 and Article 10 and determining the public interest in publication, the Court is the ultimate arbiter of the public interest in the proposed/actual publication. It is for the Court to conduct a detailed and focussed analysis of the public interest in the publication and not simply enquire as to whether the journalist or editor had a reasonable belief that the publication was in the public interest. However, this is not to say that the state of mind of the journalist or editor is necessarily irrelevant to the balancing exercise under stage 2. As set out below, the defendant's motive is relevant to the strength of the Article 10 right: take the hypothetical case of a defendant making threats to publish, or blackmailing an individual. This may well weaken his or her Article 10 claim. In contrast, a defendant acting in good faith and in the reasonable belief that publication is in the public interest may well find himself in a stronger position as regards his or her Article 10 right.
¶Factors of relevance to the balancing exercise 3.113 Whilst not intended to be an exhaustive collection of the factors which may be relevant to the
balancing exercise under stage 2, the following issues have been considered in the case law in undertaking the balancing exercise between Article 8 and Article 10.
¶Correcting false image 3.114 An example of the application of this principle can be identified in Ferdinand v MGN Ltd.
Whilst Nicol J held in relation to a "kiss and tell" story about footballer Rio Ferdinand that the first stage test was satisfied, there was a public interest in publication on two grounds, one of which was to correct the "false image" created as a result of an interview given by the footballer in which he had portrayed himself as a family man and as a reformed character in a stable relationship. The Court held that while that perception of him continued to exist, there was a public interest in demonstrating that it was untrue. The judge acknowledged that it was an unattractive "kiss and paid for telling" story, but stated that:240
"stories may be in the public interest even if the reasons behind the informant providing the information are less than noble".
¶3.115 In McKennitt v Ash the Court of Appeal suggested that a very high degree of misbehaviour
must be demonstrated in order to justify the disclosure of private information on the basis that the information tends to expose hypocrisy or correct a false image.241
¶Affects performance of obligations and duties 3.116 In Goodwin v NGN Limited and VBN it was argued that there was a public interest in exposing
1887details of a relationship between Fred Goodwin and a senior employee of the Royal Bank of Scotland on the basis that it had an impact on the financial difficulties of the bank. Whilst this argument was rejected in the absence of evidence, Tugendhat J recognised that there may be circumstances where the private life of a person holding a responsible position so impacted on his or her ability to carry out their role that it would be in the public interest to report it.242 Any assertion that features of a persons' private life have a detrimental effect on the performance of public duties will require proper evidence.
¶Appendix 4 | Legal Materials
¶Comparative value of different sorts of speech 3.117 Baroness Hale confirmed in Campbell that there are different types of speech just as there
different types of information, some of which are more deserving of protection in a democratic society than others. The courts will therefore be more likely to find in favour of the defendant where the publication relates to political speech rather than gossip.243
¶Debate relating to public figures 3.118 The case of Von Hannover v Germany is of particular importance in confirming that disclosure
of information about public servants or officials is likely to contribute to a debate of general importance which will weigh heavily in the Article 8 and Article 10 balancing exercise.244 The Court held that "a fundamental distinction" had to be made between reporting facts capable of contributing to a debate in a democratic society relating to, for example, politicians in the exercise of their functions, and reporting details of the private life of an individual who, as in Princess Caroline's case, does not exercise official functions. In the former case, the Press exercises its vital role of "watchdog". In the latter case it does not perform that role, see para 63. Accordingly:245
"…the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest. It is clear in the instant case that they made no such contribution since the Applicant exercises no official function and the photos and articles related exclusively to details of her private life."
¶3.119 A different approach was taken in Axel Springer and Von Hannover (No.2) which confirmed
that reports of the private lives of public figures will be acceptable where they contribute to a matter of general interest and there is no evidence of other wrongdoing. In both cases the fact that the individuals involved were not private individuals but could properly be regarded as "public figures" was important. In Axel Springer, the court found that the TV personality had himself revealed details about his private life in a number of interviews and in the court's view had actively sought the limelight and was well known to the public. As a consequence, his legitimate expectation that his private life would be effectively protected was reduced.246 In Von Hannover (No. 2), the court was satisfied that Princess Caroline and her husband were "undeniably very well known", irrespective of the question of the extent to which the Princess assumes official functions on behalf of the Principality of Monaco.247
¶Defendant's motives in threatening to publish private information 3.120 To date the court has regarded as a relevant factor the Defendant's intentions in stating their
1888intention to publish private information. Tugendhat J in AMM v HXW held that if a person is making unwarranted demands with threats to publish, that is a factor in deciding whether that person has any Article 10 rights, and, if so then the weight to be accorded to them in balancing them with the Applicant's Article 8 rights.248