Limited vs No public interest: Kiss & tell
A second issue identified by the SC was the reference made by the Court of Appeal, a “limited public interest” in the proposed story . The basis of this decision was that the media are entitled to publish articles critical of people in the public eye, even if there is nothing illegal about their conduct.
The majority stated that, “criticism of conduct cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in a legal sense”.
The judgment emphasizes the distinction made in law between the legal concept of the public interest and what interests or absorbs the public. ip The SC suggest that stories about private sexual encounters may not, in certain circumstances, even engage art.10! The majority judgment relied on a number of passages of ECHR judgments in its consideration of whether there is public interest, in a legal sense, of disclosing “kiss and tell stories.
This was illustrated in both Armoniene v Skip hire Glasgow & Mosley v the United Kingdom. Both courts declared that
“A distinction must be drawn between reporting facts & making tawdry allegations about an individual’s private life”
Lord Mance goes on to state that accepting art.10 is engaged, this type of speech falls at the bottom end of protection and that in the absence of any other, legally recognized public interest, must be effectively disregarded in the balancing exercise.
This finding by the Court is hugely important in terms of the balancing test undertaken under a misuse of private information action. Given that there is no public interest in these stories without more, those wishing to publish the story will struggle to convince courts that their art.10 rights outweigh the art.8 rights of the Claimant
As rightly argued by Keina Yoshida “It is of no real surprise that the Court found no public interest in this story”