December 5, 2016

This article was first published by Media Lawyer on 1 December 2016.

ERY v Associated Newspapers concerns a very wealthy businessman who wants to stop the public knowing that he has been questioned by police under caution. Before an interview is given under caution, the police must be satisfied that there are reasonable, objective grounds to suspect the interviewee of an offence, based on known facts or information. ERY’s company is being investigated for financial crime: ERY claims that his being interviewed is private information that he is entitled to protect under Article 8 – the section of the European Convention on Human Rights that became part of the law of this country following the passing of the Human Rights Act in 1998 – which protects the rights of an individual’s ‘private and family life, home and correspondence’.

ERY applied for an injunction to prevent the publishers of the Mail on Sunday and the Daily Mail publishing any information concerning the investigation by the police into him for, presumably, financial crime (even the nature of the investigation is covered by the injunction). He is, apparently, very well known to the public and so closely associated with the company that any reference to his company being investigated would lead people to believe that he personally was suspected of financial crime.

Most people will be aware of Article 8 in the context of stories about the sex lives of public figures, often footballers. It has frequently been argued that there is no ‘public interest’ in such stories, distinguishing them from investigative journalism. The court in this case specifically noted that the need to protect the role and importance of the press as a ‘public watchdog’ has been reiterated on numerous occasions, not just in our courts, but even in Strasbourg.  Yet it granted the injunction that ERY asked for in this case, even though the judge decided there was no real risk that the publishers would publish the fact ERY had been interviewed by the police.

Why? And does it matter?

Privacy injunctions are applied for by individuals who have secrets. Since 1998 the ‘private information’ they are looking to protect has widened from what might be generally accepted to be personal, such as medical information, to encompass anything that might be seen to be embarrassing. Most recently, claimants have argued that the fact of an arrest should be treated as private information, even though ‘innocent until proved guilty’ is widely understood under English law. It was accepted by the judge in this case that the publisher should not be prevented from publishing the fact that ERY’s company was being investigated and naming that company: it was also accepted by the judge that the publishers had decided they would not publish the fact that ERY had been questioned as part of that story. But ERY argued that because of the position he held in the company and because of his public prominence, any story about the company being under investigation would be understood by readers to be a reference to an investigation of him personally. The injunction was granted to protect him from that inference.

So, if a suspicious reader is capable of reading into a report of the investigation into the company that ERY is also being investigated, the publishers risk being found in breach of the injunction. The consequence is the publishers risk imprisonment or sequestration of assets if they get it wrong. The fact is that ERY has been interviewed under caution. If there was no suspicion  that he was involved in ‘serious financial crime’ the publisher could have made that clear in the body of the article and would not risk being in contempt of court. But the publisher knows that isn’t true.

It used to be the case that individuals would claim they were the face of their company to try to bring a claim for enhanced damages for libel – under libel law, only an individual, not a company, suffers hurt feelings. In this case, the same notion has been relied on to extend privacy rights into the sphere of business activity with the result that the report of a police investigation involving a large number of officers in raids on multiple premises and a considerable number of arrests carries the risk of jail for not only the publisher of the Mail on Sunday and Daily Mail, but any other publisher with notice of the injunction.  There is no right for a public figure not to be embarrassed. This is dangerous. It matters. It needs to stop.