Privacy: Rio Ferdinand v MGN Limited

Privacy: Ferdinand v MGN [2011] EWHC 2454 (QB)

In the first misuse of private information “Trial” since Max Mosley, Mr Justice Nichol, dismissed the claim by the footballer Rio Ferdinand against the Sunday Mirror. The case involved an article published in the Sunday Mirror of the 08th April 2010 under the headline “My Affair With England Captain Rio Ferdinand”.

The article was a “kiss and tell” from a woman called Carly Storey. The article explained how the couple had met in the early 90’s, but drifted part and resumed contact for a time. The last time they met was in 2005 but they had communication by way of texts until sometime in 2009. After a further gap of several months the pair had exchanged text messages in December 2009 and January 2010.

Ferdinand became England captain in February 2010, replacing John Terry who had lost the captaincy after an alleged extramarital affair.

After the couples last contact Ms Storey approached publicist, Max Clifford and managed to sell her story to the newspaper who paid £60,000. No prior notification was given to Mr Ferdinand or his advisors.

The Decision

The judge applied the standard two part test:

a) Was the information in question in principle protected by Article 8 of the ECHR (Right to Respect For Private and Family Life);

b) If so the Court had to conduct a balancing exercise to decide which of Articles 8 and 10 (Right to Freedom of Expression) should prevail.

The Judge considered that the information was protected under Article 8, he then went on to consider the balancing exercise between Article 8 and Article 10.

The Judge referred to the PCC Code and Campbell v MGN (2004): In that case the Defendant had argued that the Claimant had projected herself as being a reformed character and therefore the published information had shown that this was false.   The Claimant argued that this was false and she had never portrayed herself in that way.

In this case the Judge held that Ferdinand had given an interview to the News of the World sometime before that interview had been set up by Ferdinand’s publicity agent, the purpose of it was to portray Ferdinand as a reformed character. In that interview he had confessed about past mistakes including his missed drug test which had impacted on his career. In that article he said that he was trying to put his wild image behind him. He then referred to his past behaviour and to his now his older and more mature self, and that he was in a stable family relationship with Ms Ellison. That article was accompanied by a picture with the two of them together.

The News of the World article was then followed by an autobiography and other articles that followed the same theme i.e. that Ferdinand was a reformed character. Ferdinand’s appointment as England captain and his status as a role model to certain members of the public a was relevant. It was clear he said from the case law and statements that had been made in the media that many people considered footballers and the captain of England as a role model.

Also, it was relevant the the Claimant’s relationship with Ms Storey had impacted on his professional life the Claimant had on occasions tried to sneak her into the England team hotel which was in breach of their rules and that conduct could be called into question as to his suitability in his role as England captain.

The Judge concluded overall ” The balancing exercise favours the Defendant’s (MGN’s), right to freedom of expression over Ferdinand’s right of privacy”.

The decision is an important one for the media reasserting their rights to freedom of expression under Article 10 and their rights to publish stories in the publics’ interest. The case is the first privacy case which has reached Trial in which the disclosure of an extramarital affair has held to be justified and proportionate.

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