Looking at the front page of the Telegraph on Monday, you might be taken back 20 years to the days before English law protected personal privacy. A time when the sexual lives of anyone in the public domain was fair game and photographers crowded around the hospital bed of Gordon Kaye to capture his suffering face.
Now, in theory at least, newspapers should not publish information about private matters including people’s sex lives unless there is a clear public interest in doing so. Nevertheless, the Telegraph not only printed on its front page the name of the person Neil Ferguson was seeing during the lockdown period, but her image, her sexual history and other personal details. No doubt this was excruciating for her and her husband and children.
There is no public interest justification for this intrusion and it is likely to be unlawful. Had she and Professor Ferguson known about the impending publication, she could have applied for an injunction to prevent publication and she would probably have won. She could still bring proceedings, although the damage has already been done.
How would the Court have approached any such application? Firstly, it would decide whether or not she had a reasonable expectation of privacy in the information that was published. There is no doubt that she did. The article revealed private issues about her sexual life and history which is a category of information which is highly protected by the law. It did so in an extremely intrusive way – publishing her name and photograph on the front page, with disapproving references to her ‘polyamorous’ marriage.
What then is the public interest in publication of this information about Ms Staats? She herself had no public role. She was not meeting Professor Ferguson in circumstances which affected the independent scientific advice he was providing to Government. Any hypocrisy over lockdown measures was his, not hers. Her visits to him were in fact entirely unconnected with his public role at Imperial. It was not even arguably necessary to the story to publish her details. All it did was provide the prurient with a little more detail. A court entrusted with balancing the right to privacy protected by Article 8 of the Convention on Human Rights against the right to freedom of expression protected by Article 10 would surely come firmly down on Ms Staats side.
And what of Professor Ferguson’s privacy rights? There was no need whatever to refer to his sexual life either. The newspaper could have published a story that he had met someone outside his household, contrary to the government’s advice, without revealing the purpose for those visits. The public interest could have been served without any intrusion into his, or Ms Staats, privacy rights. His decision to continue to see his lover during lockdown may have been unwise, but there is no proper public interest in publication of detail.
If the two had applied for an injunction prior to publication, the Court would be required by the Human Rights Act to decide if a claim would be likely to succeed and would have to ‘pay particular regard’ to the importance of the right to freedom of expression and the public interest in publication. Even so, it would be an unusual Court that could find that the right to freedom of expression and the public interest required the publication of irrelevant details of a private person’s sexual identity and history.
There is a rotten stink floating over this article, a strong whiff of corruption. If there was actually a public interest in publication, why was it not published earlier? Did the Telegraph, or its source, have the information earlier but chose not to publish it until it was most convenient for the Government? Why weren’t Professor Ferguson and Ms Staats contacted earlier, before publication, when they could have asked a Court to adjudicate on whether the information should be published?
If only the epidemiologist and his staats had known what was coming down the line.