Boris Johnson’s colourful private life: a matter of public interest?

It is open season in the UK press on MP Boris Johnson’s “colourful” private life as it is revealed that he and his wife are divorcing. He is alleged to be a serial adulterer with one woman said to have had an abortion as a result of a liasison with him and another having had an illegitimate child.

But here’s the legal issue: could Johnson, in light of the UK Supreme Court “celebrity threesome” judgment, get injunctions against publication of such material? Lord Mance, explaining that judgment (PJS v News Group), declared:

“There is no public interest, however much it may be of interest to some members of the public, in publishing kiss-and-tell stories or criticisms of private sexual conduct, simply because the persons involved are well-known; and so there is no right to invade privacy by publishing them. It is different if the story has some bearing on the performance of a public office or the correction of a misleading public impression cultivated by the person involved. But … that does not apply here.”

The judgment itself set the seal on an emerging privacy law, asserting that even the re-publication of material already accessible to all was an offence against an individual’s privacy because of its likely “intrusive and distressing effect”.

But is there a Boris exception? Do we have a legitimate public interest in the private life of a man who has occupied some of the highest political positions in the land ?

On the one hand, the argument might run: we already know Johnson is a bit of a roué who hasn’t always observed his marriage vows to the letter; we’ve seen some of these stories already. Retailing them once more (or adding a few others, if there are any) hardly corrects a “misleading public impression”. They are merely intrusive and distressing. Injunction granted! 

On the other hand, the right to privacy may be outweighed “by the public interest in the recklessness of the father”, as Judge Nicola Davies put it in the High Court in 2010 when the mother of Johnson’s illegitimate child sought an injunction against the Daily Mail to prevent further identification of the baby as Johnson’s.

The Johnson affair
The child’s mother did not get her injunction, even after appeal to the Court of Appeal. AAA v Associated Newspapers (2013) gave the facts of the case: the mother had a child bearing a remarkable resemblance to Johnson (it was the hair that gave it away) and lawyers for the child sought an injunction to stop the Daily Mail writing further about the affair.

The first Daily Mail article on the matter in July 2010 included the following:

“… when the girl was born her appearance shocked [the mother’s partner] and led to jokes that she looked a lot more like [Johnson] … He [the mother’s partner] took a paternity test and discovered that he was not the father, prompting the couple to split.” The article referred to a friend of the mother’s partner having said: “the gossip among [the mother’s partner’s] friends was that this child when newborn had shocking wild red hair and bright blue eyes, and we were all saying she looked a lot more like [Johnson] than [the mother’s partner].”

It went on further:

“A friend of [the mother] said ‘early last year [the mother] was talking about her relationship with [Johnson] when she suddenly said ‘I slept with him’ in a ‘God, what have I done?’ sort of way’. The article said that the friend added: “It came as a shock when [the mother] discovered the father of [the child] wasn’t [the mother’s partner].”

The argument put on behalf of the child was that the courts should be guided by the best interests of a child and an expectation of privacy even though her mother had approved an interview she had given for a magazine article a few months after the Mail’s story (in, what was referred to coyly as “T Magazine” in the Court of Appeal), which referred to the child’s looks and her similarities with the father. (A passage inserted on the mother’s legal advice stated: “[the mother] has not confirmed, and will not confirm, at this stage, that [Johnson] is the baby’s father.”) The mother had also, at a party, told the head of the magazine group Condé Nast, Nicholas Coleridge, the name of the child’s father.

The child’s legal team rejected the notion that the right to privacy should be outweighed “by the public interest in the recklessness of the father”. The High Court had awarded £15,000 damages for repeated use of a photograph of the mother with her child in a buggy but did not give an injunction restraining writing about the paternity issue. Nicola Davies J said the child had an expectation of privacy but it was vitiated by her mother passing the magazine interview and what she had told Coleridge.

On appeal
In the Court of Appeal, the Master of the Rolls, Lord Dyson, also dismissed the appeal for an injunction. He noted that the Editors’ Code of Practice provides:

“In cases involving children under 16, editors must demonstrate an exceptional public interest to override the normally paramount interests of the child.”

He quoted Lord Kerr in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 at para 46:

“Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. It is not necessary to express this in terms of a presumption but the primacy of this consideration needs to be made clear in emphatic terms.”

So it would have to be pretty serious for the courts to allow publication of material that, in effect, identifies a senior politician’s illegitimate child. In this case the mother seemed to have shown little concern about the privacy of her child, leading to Judge Davies saying she showed: “at the least, an ambivalence towards and an inconsistent approach with her stated aim in these proceedings”.

Nevertheless, a judge should have due regard to the privacy of a child under Article 8 of the European Convention on Human Rights (right to private and family life). But a judge must balance that against Article 10 rights of freedom of expression – particularly about matters of public interest. Judge Davies said this:

“The test required to justify publication is a high one, ‘exceptional public interest’. It is undisputed that there is a public interest in the professional and private life of the claimant’s supposed father. His professional position speaks for itself. As to his private life, he is man who has achieved a level of notoriety as result of extramarital adulterous liaisons. Of itself, the fact of an extramarital affair does not render inevitable the publishing of information that, as a result, a child was conceived. However, the claimant is alleged to be the second such child conceived as a result of an extramarital affair of the supposed father. It is said that such information goes to the issue of recklessness on the part of the supposed father, relevant both to his private and professional character, in particular his fitness for public office. I find that the identified issue of recklessness is one which is relevant to the professional and personal character of the supposed father. Specifically, I find that it goes beyond fame and notoriety [ie it is not simply that he is famous].”

James Price QC, at the Court of Appeal, objected (on behalf of the child) that any such moral/political issues could have been discussed without identification of the child. On which point the Daily Mail deputy editor Jon Steafel had said this:

“It could be, but there is an additional element to this, which is the charge against [the father] which has been levelled in relation to this case and previously, which is of recklessness. Self-evidently it is possible to have an extra marital affair and ensure that there is not a child. Extreme recklessness of this type was already on [Johnson’s] record, as we all know. There was a previous affair which resulted in the lady concerned having an abortion. That caused him great personal and professional discomfort, and this story appeared to suggest that history in his case was repeating itself, which made explaining the child’s part in the story and indeed demonstrating that the child looked an awful lot like [Johnson] very important.”

This found favour with Dyson, who said:

“The judge [Davies] recognised that the mere fact that the father had been involved in extramarital affairs did not of itself mean that it was in the public interest to publish information about a child whose conception resulted from such an affair (para 118). But she accepted the evidence of the deputy editor and the submission of [lawyer] Mr Browne that it was in the public interest to publish information about the claimant because the information went to the issue of recklessness and whether on that account he was fit for public office.”

It is not sufficient that someone – even a politician – is in the public eye. It depends on circumstances, and Judge Davies considered the circumstances made it a matter of public interest. As Dyson put it:

“It is clear that she [Davies] had in mind that the claimant was alleged to have been the second child conceived as a result of the father’s extramarital affairs. She may well also have accepted the defendant’s case that in his sexual activities the father was reckless about the feelings of others, particularly his wife and family. It was not material to the judge’s conclusion whether contraceptive precautions were taken. What was material was that the father’s infidelities resulted in the conception of children on two occasions. The judge was entitled to hold that this was of itself reckless behaviour, regardless of whether any contraceptive precautions were taken.”

The Mail article also made reference to the fact that Johnson had appointed the mother of the child to a public position as a fundraiser while she was in early pregnancy. Without this fact, Steafel suggested “it would have been a ‘closer call’ whether to publish the private information and the photograph”, though Davies made little of this.

Conclusion
So it does seem that there is a “Boris exception” regarding privacy – which would apply equally to others holding important office. It is not merely a matter of exposing hypocrisy (politicians holding themselves out as family men/women when they are not), but also revealing moral incompetency in private life, an inability to manage one’s private affairs that could pass over into public life.

Although AAA v Associated predates PJS v News Group, it is not inconsistent with Mance’s principles. It adds another layer. The case is rather muddied by the mother’s inconsistency of approach to her child’s privacy, but there is the overwhelming sense that these reports of Johnson’s “recklessness” in his private life give us relevant material to judge his public persona – and his fitness for high office (assuming anyone still honestly believes him to be so fitted).

Twitter: alrich0660

Also of interest
• Have judges put the frighteners on the press? (PJS case examined)
• Paul Weller’s children: another brick in the wall of privacy law
• Kiss goodbye to kiss and tell (After Leveson)
• Privacy and judicial underwear
• Von Hannover: how big a win for press freedom?

The law on privacy
In England privacy law was founded on the Common Law notion of “confidence” ie confidentiality: that if you have a relationship of confidence with a person, that person should respect that confidence – keep confidential material private. This requires that: 

• The material is not already in the public domain and is sensitive or significant (it has the necessary quality of confidence)
• It was obtained in circumstances when an obligation to keep it in confidence might be expected (doctor-patient or master-servant including employer/employee relationship)
• Use of the data has not been authorised
• Breach of confidence may be lawful if in the public interest

This law doesn’t contain a notion of personal privacy but rather that there are contractual relations that give rise to confidentiality, including marriage: Argyll v Argyll 1967, a very salacious divorce case involving the very racy Duchess of Argyll. It was established that the confidences between husband and wife were covered. The Duke had passed “confidences” to a newspaper which was then injuncted from reporting them. Ungoed-Thomas J said:

“It seems to me that the policy of the law, so far from indicating that communication between husband and wife should be excluded from protection against breaches of confidence given by the court in accordance with Prince Albert v Strange, strongly favours its inclusion, and in view of that policy it can hardly be an objection that such communications are not limited to business matters.”

The so-called “judge-made” privacy law has developed as a result of the Human Rights Act Section 6 which requires public bodies, including courts, to act in a way that is not incompatible with a European Convention right. Among those rights is the ECHR Article 8 right to privacy. The courts have considered themselvesd obliged to interpret English Common law in the light of the European Convention on Human Rights.

So in Campbell v MGN (Naomi Campbell sought compensation for the use of long-lens photos of her leaving a drug rehab centre) Lady Hale said:

“The 1998 Act does not create any new cause of action between private persons. But if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ Convention rights.”

This means a claim of confidentiality will be viewed in the light of Article 8 and Article 10 – on freedom of expression. This led to the creation of a hybrid confidence/privacy law in England and Wales – the Common Law on confidence reinterpreted through the lens of the ECHR. The law has developed further since then towards a purer privacy law, and arguably that is where the PJS judgment on the “celebrity threesome” has taken us.

 

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