Workplace affairs are private - especially if one half of the couple has children

The Court of Appeal's judgment in ETK v News Group [2011] EWCA Civ 439 has prompted gasps of horror from some sections of the media.

That is not surprising.  What may be more surprising is that the public, often suspicious of media self-interest in these matters, may in this case think the newspapers are right and the courts have indeed gone a step too far.

The facts

The case concerns a married man, ETK, working in the entertainment industry.  He and his wife have two teenage children.  In about November 2009 he began an affair with a work colleague, X, who is herself married. 

Towards the end of April 2010 ETK's wife found out about the affair and confronted her husband. He agreed to end the affair and they resolved to stick together.  Although it was awkward for him to continue working with X, he did so, but in December 2010 their employer decided that X's services were no longer required.  X was upset and angry and appears to have threatened proceedings against the employer.

In the meantime, the affair between X and ETK had become known to those with whom they worked and its existence had reached the ears of senior management (possibly as a result of ETK's and/or X's own disclosures). 

Shortly after this, the News of the World found out about the affair.  This became known to ETK, who applied ror an injunction to prevent publication of the fact of the affair.

Collins J refused to grant an injunction.  He decided that although ETK had a reasonable expectation of privacy, there was a public interest in the effect of the affair on X's continued employment and it was therefore permissible for the newspaper to report the fact of the affair and X's resultant dismissal.  Although the interests of ETK's children were urged upon the judge, he decided that any adverse effect on them did not tip the balance.

Did ETK have a reasonable expectation of privacy?

Yes, said the Court of Appeal.  In perhaps the single most striking passage of the judgment, Lord Justice Ward said this:

Here the sexual relationship was essentially a private matter.  One way or another it became known to work colleagues but their knowledge does not put the information into the public domain – see Browne v Associated Newspapers Ltd cited at [10(3)] above.  In my judgment the appellant was reasonably entitled to expect that his colleagues would treat as confidential the information they had acquired whether from their own observation of the behaviour of the appellant and X or from tittle-tattle and gossip which larded the office conversation or from a confidential confession to a colleague.  A reasonable person of ordinary sensibilities would certainly find the disclosure offensive. [11]

This is surely a questionable judgment.  If a workplace affair becomes known to colleagues, why should the "disclosure" of such an affair necessarily be regarded as offensive?  If the affair has become widely known, one might argue it becomes equally offensive for those with the most vital interests in the matter - the couple's families - not to know.  There are all kinds of reasons why people might reasonably expect workplace affairs not to remain under wraps.  In some circumstances, such affairs cause obvious conflicts of interest and encourage suspicions of favouritism.  Sometimes, they may have a direct and harmful effect on job performance. 

Does the knowledge of work colleagues never put a workplace affair into the public domain?  Even if everyone in the company knows?  And what if only the most important people in the company know?  Is the affair to be judged not in the public domain because the "less important" workers haven't got to know about it?  And how many "confidential" disclosures does it take before the information ceases to be truly confidential?  Can someone in the position of ETK tell as many people as he wants about the affair as long as he tells them he's speaking off the record?  Is it fair to describe the disclosure of workplace affairs as "tittle-tattle and gossip"?  The disclosure of an affair between the chief executive of a public authority and its head of human resources is surely more than just tittle-tattle.

The public interest

The judge who refused ETK's application for an injunction was operating as the weekend duty judge and had to deal with the matter quickly and at short notice.  He nonetheless considered on the evidence before him that there was a legitimate public interest in publishing the fact of the affair because it appears to have resulted in X losing her job. 

Regrettably, the judgment of the Court of Appeal is unhelpful in explaining why the court disagreed with the judge on this point.  On the face of things, there would appear to be a public interest in knowing that a female employee, apparently in the public eye, had lost her job because of an affair with a colleague.  Ward LJ, with whose judgment Laws LJ and Moore-Bick LJ agreed, saw no public interest in the story:

Here there is no political edge to the publication.  The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication.  The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public. ...

The decisive factor is the contribution the published information will make to a debate of general interest.  Is a debate about the reasons why X’s employment terminated a matter of such public interest?  Both the appellant and X will be known to a sector of the public though it is impossible to measure how large – or how small – that sector is.  Certainly some members of the public will have noticed the end of her employment: a proportion of them will even have speculated why she left.  But the reasons for her leaving give rise to no debate of general interest.  The reasons for her leaving may interest some members of the public but the matters are not of public interest.  Publication may satisfy public prurience but that is not a sufficient justification for interfering with the private rights of those involved. [21, 23]

This appears to take a rather narrow view of the public interest and it seems extreme to suggest that a report restricted to the fact of an affair and the consequential dismissal of the woman involved would do no more than "satisfy public prurience".  Perhaps if the couple in question had been engaged in positions of public trust, the position might have been different, but the judgment is unilluminating.

The interests of the children

The crux of the Court of Appeal's decision was as follows:

In my judgment the benefits to be achieved by publication in the interests of free speech are wholly outweighed by the harm that would be done through the interference with the rights to privacy of all those affected, especially where the rights of the children are in play. [22]

It is well-established that in conducting the necessary balancing exercise between competing rights of privacy and freedom of expression, an intense focus is required on the comparative importance of the rights in question.  It is equally well-established that the court must consider not just the rights of the claimant, but the rights of others such as the woman the claimant has had an affair with and any children who may be affected by publication.  What appears new about the decision in ETK is the degree of importance attached to the rights of the children.

In refusing the injunction, Collins J said this:

My last concern relates to the claimant’s children.  As Mr Tomlinson rightly points out, there is likely to be an adverse effect on them if the News of the World discloses the fact of the adultery.  One recognises the concerns that this issue raises but unfortunately if one parent behaves in a way that attracts adverse publicity it will affect the children.  This is not something which can tip the balance if there is otherwise no good reason to grant an injunction.

This seems a calm and sensible assessment.  Children may well be affected by the consequences of their parents' adulterous affairs, though one might think that press coverage would in fact be one of the less serious consequences.  Moreover, is there not something unattractive about using the effect of your own behaviour on your children as a means of bolstering your own case against a newspaper?  And is this not even more so in circumstances where the children are not even aware that their rights are being asserted?

The Court of Appeal disagreed fundamentally with the approach of Collins J.  They criticised the judge for failing to take proper account of the fact that both X and ETK's own wife were opposed to publication, but they reserved their most serious criticism for suggesting that the interests of the children should not tip the balance against publication.

It is unclear from the judgment whether the court was in possession of any evidence about the effect of publication on the children.  It is not even clear if the children already knew their father had been having an affair.  Whatever the position on the evidence was, Ward LJ was clear about the adverse effects:

The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity.  They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment.

Once again, these generalisations seem questionable.  Not all children behave like characters from Lord of the Flies.  Many of us with experience of teenage children are more struck by their solidarity and resilience in the face of ordeals such as death and divorce than their cruelty or shark-like tendencies. 

Ward LJ then proceeded to examine recent Strasbourg and UK Supreme Court authorities which support the proposition that "in all decisions concerning children, their best interests must be paramount".  He referred to article 3(1) of the United Nations Convention on the Rights of the Child 1989:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

He referred also to the Supreme Court decision in ZH (Tanzania) v Secretary of State for the Home Department [2010] UKSC 4, which concerned the position of children affected by the decision to deport one or both of their parents.  In that case Lord Kerr said:

It is a universal theme of the various international and domestic instruments to which Lady Hale has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests.  This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all considerations.  It is a factor, however, that must rank higher than any other.

Ward LJ acknowledged that the issue in immigration cases was a long way removed from the issues in place in ETK, but said nonetheless that the "universal principles [could not] be ignored".   While he also recognised that the interests of children do not automatically take precedence over the Convention rights of others, he nonetheless also held that in deciding where the balance lies between protecting privacy rights and rights of free speech, the court "should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests".

On the Inforrm blog, Edward Craven suggests the decision in ETK will "strengthen the hands of many claimants seeking privacy injunctions".  It would certainly appear to put the media further on the defensive (despite Ward LJ's recognition at [13] of the importance of a free press).  In cases involving children, we will no doubt be hearing a good deal more in the future about the harmful effects that press freedom may have on those children.  We must hope that judges hearing injunction applications take a critical look at such arguments and do not simply accept them at face value.  As Ward LJ recognised at [19], "the interests of children cannot be treated as a trump card". 

See further sections 3.3, 3.4 and 3.9 of The Privacy Law Handbook

ETK v News Group [2011] EWCA Civ 439