Is a Minor Sportsman a ‘Public Figure’ under Privacy Law?
By Vidya Narayanswamy
Case Review: Jonathan Spelman v. Express Newspapers ( EWHC 239 (QB),  EWHC 355 (QB))
This case concerns the lifting of a privacy injunction awarded to Jonathan Spelman, a minor rugby player. A privacy injunction is an order from the court, in certain special cases, that prevents the press from reporting a story relating to an individual. The Court examined the circumstances under which a minor could qualify as a “public figure” and provided insight into the category of people who ought to have a lower reasonable expectation of privacy as disclosure of information about their activities may advance the public interest.
Jonathan Spelman is a reputed rugby player, and son of British Conservative MP and Secretary of State for the Environment, Food and Rural Affairs, Caroline Spelman. He has played rugby for England in the Under-16 category and has also played for the Harlequins Rugby Football Club. He suffered a ligament injury during a match played in September 2011 and has not played rugby since. He turned 17 in late 2011. Soon after the injury, the Daily Star Sunday, a newspaper published by Express Newspapers, received some information about Spelman and launched an investigation, with a view to publish an article in the newspaper. The information, which was unsubstantiated, related to Mr. Spelman allegedly testing positive to taking a number of performance enhancing drugs.
The Spelman family attempted to prevent details of the case from being published, with the help of a High Court injunction. They were initially granted an injunction over the publication of the information. However, on 24 February, 2012, the injunction was overturned by a second judge.
In September 2011, Spelman suffered a ligament injury which prevented him from continuing to play rugby. He then allegedly ordered a number of performance enhancing steroids over the Internet. Some of them were, Testosterone, Drostanolone (both anabolic steroids), growth hormone (GHRP6), Human Chorionic Gonadotropin (HCG), Clomid (clomiphene) and Nolvadex (Tamoxifen).
Express Newspapers, a newspaper conglomerate in the United Kingdom received a few tip-offs about Spelman’s alleged activity. To verify the information prior to publishing an article, they approached representatives of the Harlequins Rugby Football Club, Spelman’s mother, the Rugby Football Union, and the boarding school where Spelman was enrolled. However, they received no confirmation from these sources. Instead, Spelman’s solicitors sent them a letter marked “Private and Confidential Not for Publication”, setting out certain matters, including matters relating to Spelman’s health. They demanded an undertaking from the newspaper not to publish these matters, failing which they would apply for a privacy injunction. The newspaper declined to provide the undertaking. The privacy injunction was an attempt to prevent Express Newspapers from disclosing the details contained in the letter. Spelman’s solicitors contended that it was an invasion of privacy and a political assault against Mrs. Spelman.
Arguments advanced on behalf of Spelman
Spelman’s solicitor contended that the intention of the newspaper was “nakedly political”, i.e., to attack Mrs. Spelman by using her son as a weapon. Further, they argued that publication of the story “would not of itself advance the public interest claimed for it to a material degree”.
Arguments advanced on behalf of Express Newspapers
Express Newspapers denied that the article was politically motivated. It asserted that the story was essentially about the particular facts of Spelman’s health rather than something likely to focus attention on him or his parents as individuals. Further, Express Newspapers argued that publication of the story will serve the public interest as it highlights the pressures on elite athletes even in the early stages of their professional careers. Further, they argued that Spelman’s story is one that many sportsmen and women hoping to build a career in sport can relate to. Even at 17, Spelman had established himself as a role model to many youngsters.
Express Newspapers also argued that it had acted reasonably since it had given Spelman a prior notification revealing its intention to publish the article.
Interim Order and Judgment
Interim Order delivered by Justice Lindblom
As time was of essence in this matter, Spelman’s solicitor made an application to Justice Lindblom, the judge hearing out of hours applications. Spelman’s solicitor applied for his identification to be kept anonymous during the course of the trial. However, Justice Lindblom rejected Spelman’s application for anonymity on the basis of the principles set out by the Court of Appeal in JIH v News Group Newspapers  EWCA Civ 42. According to these principles, when granting such order relating to publishing of a report where public interest is in question, it should be evaluated if such public interest justifies the curtailment of the individual’s private right. The Court also took the stand that all public figures are entitled to the same protection as others and no special treatment should be accorded to them.
Justice Lindblom considered it likely that Spelman had “reasonable expectation of privacy” in respect of the information and that its publication would not advance the public interest sufficiently to outweigh this. The non-disclosure order was extensive, covering any information or purported information regarding the matters which were redacted from the public version of the judgment.
Judgment delivered by Justice Tugendhat
On the return date hearing, Justice Tugendhat held that it was not necessary or proportionate to make an order restraining Express Newspapers from disclosing the information. The fact that Spelman was still a child was considered when determining whether Spelman had a reasonable expectation of privacy. However, Justice Tugendhat considered that this was considerably diminished by reason of the fact that he was almost 18 and, more notably, that he enjoyed status as an international sportsman. Justice Tugendhat went on to consider the nature of the information in question. This was not disclosed in the public version of the judgment. Justice Tugendhat relied on the House of Lords decision in Cream Holdings Ltd v Banerjee  1 AC 253 to declare that when there is an element of public interest involved in publishing a report, it does not necessarily mean that public interest justifies disclosing private information at large. As to public interest, both sides had strong arguments to succeed on this point. Although the information upon which this conclusion was based is only set out in the closed Judgment, Justice Tugendhat elaborated on the areas which may attract a public interest argument. In particular, he was of the view that the fact that Spelman was a child may lend support to, rather than detract from, the public interest in publishing the information. Further, in the present case, Spelman was a 17 year old sportsman with a personality and public profile of his own.
The Court held that sportsmen (especially at national and international level) are required to satisfy several requirements which are not imposed on other members of the public. In particular, matters relating to their health have to be disclosed and monitored. They have little control over how such matters are disseminated. Therefore, their expectation of privacy, in issues relating to their heath, especially if it affects their ability to compete in the sport, should be set at a minimum standard. With particular reference to Spelman, the Court held that he was almost 18. Even if he was under 16 years of age, his position as an international athlete would ensure that any discussion about his sporting life is a discussion of general public interest about “a person who is to be regarded as exercising a public function”.
Finally, concluding that continuation of the injunction would neither be necessary nor proportionate, Justice Tugendhat emphasised that this was not an open invitation for the press to publish whatever they like.
It is important to note that Justice Tugendhat’s decision does not provide blanket permission to newspapers to publish material relating to Spelman’s conduct. It merely refuses to grant Spelman an absolute ban on publication of information relating to his conduct. It is still open for Spelman to challenge any individual publication/story/ article on the ground that it is an invasion of his privacy and the court will determine the matter on merits.
This decision throws light on the category of individuals who may be classified as “public figures” and should therefore have a lower expectation of privacy. Public figures include sportspersons even if they are minors. Minor sportspersons attract a great deal of media attention for their achievements both on and off the field. Minors who become successful sportspersons have additional responsibilities when compared to other individuals their age. They are required to conduct themselves in a dignified manner both on and off the field and strictly comply with the rules governing the sport they participate in. Inferring from this judgment, in the event the minor sportsperson engages in any irregular conduct, it is permissible for newspapers to report them, provided that the deviation is, in some way, connected to or affects the minor’s participation in the sport.
It is interesting to note that after Spelman and his family attempted to suppress details about the case, in March 2012, Spelman, appearing before an independent disciplinary tribunal, admitted to taking a number of drugs, including anabolic steroids and a growth hormone. As a result he has been suspended from playing rugby for twenty-one months.
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