The Tiger Woods Injunction – “The Best A Man Can Get”

The last two weeks have seen a huge number of press stories on the very public downfall of Tiger Woods, but it looks as if at least some of the more salacious reports may come to a grinding halt in the UK, thanks to an injunction granted last week in London’s High Court.
 
In a move which has drawn fierce criticism from media commentators and lawyers alike, Woods has taken action through Schillings in London to restrain the publication of new details on his private life and alleged infidelity, which may have included nude pictures of the world’s highest-paid sportsman obtained via Playgirl Magazine.
 
At first glance, the theory behind granting this injunction is fairly sound, but when the surrounding circumstances are taken into account it starts to look less sensible and will do nothing to change a growing number of opinions that the UK’s privacy and libel laws are in need of an overhaul – if for no other reason than in this case, the genie is in fact already out of the bottle.
 
The UK’s Libel laws in particular have been the target of very loud calls for reform over the course of the past year or so, partly due to the prevailing view that our awards for damages (especially in cases involving the internet) are too high and have the effect of stifling the media – even going so far as to put some local newspapers out of business. This charge has been led by Paul Dacre, editor of the Daily Mail and outspoken critic of the current system, with much of his ire directed at Mr. Justice Eady, the leading judicial exponent of libel and privacy law on the UK bench.
 
Eady first came under major fire after his decision in a case which has defined the scope of UK privacy law – Max Mosley v the News Of The World. Although there is still no free-standing “right” to privacy under UK law, the Court had been looking at the interaction between two specific causes of action for some time to create a pretty close approximation – the law of confidential information and the right to respect for privacy in his private and family life as enshrined by both the European Convention on Human Rights (ECHR) and later the Human Rights Act 1998.
 
Mosley’s case involved the publication of video footage, still photographs and detailed reports on the more salacious details of the private life of Max Mosley, son of the right-wing politician Oswald Mosley and one of the most influential figures in Formula 1. The coverage dealt mainly with his involvement in what was described as a “Nazi Orgy” which, in the eyes of the News Of The World, made him unfit to hold that Office. Mosley claimed damages for a breach of his privacy as well as misuse of confidential information and went on to win damages of £60,000.
 
The press saw this as a major blow to their freedom to report, but Judge Eady went to great lengths to set out his reasoning for ruling in Mosley’s favour – once the information in question can be shown to give the claimant a “reasonable expectation of privacy”, the individual’s right to privacy in their family life under Article 8 of the ECHR must be weighed against the Press’ right to Freedom of Expression under Article 10. If that balancing act is going to come down on the side of the press, there must be a real public interest or other justification for publishing the details, even if the behaviour in question is morally questionable. The cases following Mosley have all expanded on this point, with the general rule being that the more private the activity, the easier it is to show the “reasonable expectation” – reports on sexual habits will almost always qualify, no matter how unconventional, as long as that activity is not illegal. Photographs in particular will attract a higher level of protection.  
 
Mosley’s case led to a flood of similar claims, notably involving Sienna Miller and JK Rowling, each adding weight to a growing opinion in the media that the new Privacy law was going too far. But what about libel?
 
The English Libel system has faced heavy criticism since the landmark case of Don King v Lennox Lewis in 2004, also decided by Eady, in which he ruled that the boxing promoter could bring a case against the former world champion and his Lawyer in the UK Court over a comment made on a boxing website based in the United States – as the website could be viewed in the UK, the remarks were “published” here and could be the subject of a libel claim if a Claimant has a reputation to protect in this country. UK Libel law is less restrained by principles of press freedom and free speech, unlike the case in the USA, where the First Amendment to the Constitution prohibits the passing of laws which damage these rights.
 
This has led to a considerable amount of cases being brought in the UK as the “libel capital of the world” by foreign celebrities looking for a greater award of damages than they would receive at home where the law tend to be less draconian and damages tend to be higher, leading to Arnold Schwarzenegger introducing a law which bans the enforcement of UK libel judgments in California in an effort to stamp out “libel tourism”.
 
The reason for looking at the background in this detail is that it sets out exactly why the Tiger Woods Injunction is attracting such a huge amount of criticism – the information which the Injunction has been granted to protect is apparently already in the public domain through a number of US websites. Many are asking, with good reason – “What’s the point?” Woods can quite lawfully stop publication of the kind of images we’re talking about and protect his reputation, but surely the genie is already out of the bottle and all this will do is drive curious web users to these websites, who will be the real winners when visitor rates go up along with advertising revenues – ironically the reverse of Woods’ own situation.
 
What’s really made the media angry, along with many lawyers, is that this is a classic example of a foreign celebrity suing here, where he has more of a “right to privacy” than in the US, where every development in the story is being reported in minute detail; US websites will not be affected by the injunction. Though this is the right decision on a strict legal basis, real-world considerations, such as the global and pervasive nature of the internet have been ignored, ironic given Eady’s previous judgment in King v Lewis, where US websites printing an allegation was enough to justify a libel claim. Even though the injunction will put a stop to not only the publishing of the images in question but also any reports of their details, it won’t stop any number of blogs and international websites poring over every gory detail.
 
Also complicating matters is the fact that much of the criticism against Woods has been that he is a hypocrite by holding himself up as a role model, only to be painted as anything but. Naomi Campbell faced similar accusations in her own precedent-setting case against the Mirror a few years ago, and won mainly on the basis that the paper when too far by publishing details of where she was being treated for a drug addiction rather than being exposed as less than truthful following frequent denials of a narcotics habit.
 
Woods has been admirably straightforward and open in dealing with his failings in the US over the past few weeks and has drawn praise for his “reputation management” strategy. His action in the UK, however, may undo much of this tenuous goodwill and leave the public asking what else he has to hide. Lawyers can be valuable both in taking action through the court when privacy is threatened, as well as advising when it may be wise not to.
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