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Did The Guardian misuse Boris Johnson’s private information, and could he sue? – Zoe McCallum

Related Member(s):
Zoe McCallum
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Media and Information Law

The newspapers are once again replete with Boris Johnson’s private life. Last weekend he rowed loudly with his girlfriend. Neighbours overheard. She shouted “get off me”, “get out of my flat”, “you’re spoilt”, “you have no care for money or anything”.  He shouted “get off my f***ing laptop”.

There was a loud crash. Neighbours recorded the row, knocked on the door three times and when there was no answer, called police. Police attended. The neighbours leaked the audio to the Guardian. The Guardian awaited the police’s statement. Police initially denied the had attended the house at all, then reversed their position, confirming that all occupants were “safe and well” and no need to investigate. The Guardian published.

Ross Clark in the Spectator compared the Guardian’s trenchant stance against phone-hacking at the time of the Leveson Inquiry with what he derided as its “politically motivated” decision:

“How it could be any less offensive to record a conversation through the walls of a private flat – effectively bugging the property – and then publish the details even when police have investigated the incident being recorded and decided no crime has taken place?”.

The Guardian maintained that publication was not only appropriate but “necessary”:

“When a woman screams at her partner to “get off me” and “get out of my flat”, calling the police is a responsible thing to do. The neighbour who did so says he was frightened and concerned for those involved; another neighbour also considered dialling 999. When police say no offences or concerns are apparent and no further action is needed, as on this occasion, the matter would in normal circumstances end there. But running for prime minister is not, by definition, a normal circumstance”.

Was publication an unlawful misuse of private information?

So, who is right – Guardian or Spectator – and could Boris Johnson and/or Carrie Symonds sue?

The question of whether there has been an unlawful misuse of private information in the publication of the recorded information involves two questions (see, most recently by Nicklin J in ZXC v Bloomberg [2019] EWHC 970 (QB) at [110]):

1. First, was there a reasonable expectation of privacy in the information? Here, we are concerned with the fact and content of a domestic altercation. The answer to question is judged from the perspective of a “reasonable person of ordinary sensibilities” and depends on all the circumstances of the cases. Relevant factors include:

    • A Claimants’ attributes (a public figure running for high political office and his girlfriend, also with a public profile as a political professional);
    • The nature of the activity (a row, with possible unwanted body contact);
    • The place at which it was happening (her home);
    • The nature and purpose of the intrusion (a claimed concern for welfare);
    • Whether consent to the intrusion was given or can be inferred;
    • The effect of the intrusion (reputational consequences for both and in the case of Boris, an immediate and enormous drop in popularity according to polling data; undoubtedly distress; the effect on the relationship of media and public scrutiny); and
    • The circumstances in which it came into the publisher’s hands (covert audio recording).

2. Second – and only if there is a reasonable expectation of privacy, is that outweighed by a countervailing interest(s)? Here, the Guardian relies upon the legitimate interest of the press and public to report (and reflect upon) matters relevant to the fitness for office of a candidate running for and likely to become Prime Minister.

Stage 1: Was there a reasonable expectation of privacy in respect of the domestic altercation?

The Court’s answer to this fact-sensitive test can be notoriously difficult to predict. It is not here. The answer is yes.

Even the most public of figures are entitled to a private life (as to the existence of a reasonable expectation of privacy on the street immediately outside the home, see Ali v Channel 5 [2019] EWCA Civ 677). The couple may have met through politics – but the altercation occurred in the course of domestic life in the most private of places: The home. Had the row been over politics rather than purely private, no doubt the Guardian would have said so. They could be heard by neighbours on both sides. But it would have been obvious to neighbours that (no doubt) unwitting “publication” through the walls to them was a far cry from consenting to audio recording, or the projection of their domestic row into the homes of 17.3 million Guardian readers and latterly, the public at large.

That police were called makes no difference. A police investigation is generally considered private up to the point of charge: ZXC v Bloomberg [2019] EWHC 970 (QB), [119]. That starting point in law can be overridden in special circumstances – most obviously, an arrest in an obviously public place, to apprehend a “wanted” figure, or where anonymity poses a risk to life or limb. None apply here and certainly not where (as The Spectator rightly observed and The Guardian editorial tacitly accepted) police closed the matter on the same night.

Stage 2: Does the legitimate interest of the press and public in reporting and reflecting on the fitness for office of a probable Prime Minister override the couple’s reasonable expectation of privacy?

Meaningful public debate on the choice of next head of government requires alerting the public to matters calling for their consideration and action. Any proper democracy needs what Lord Bingham referred to as a “free, active, professional and inquiring” media (Turkington v Times Newspapers [2001] 2 AC 277, at 290). Without information in matters of public concern, political debate is drained of its value. The limits of acceptable criticism are wider as regards politicians than private individuals: Lingens v Austria (1986) 8 EHRR 407 at [41]-[42].

The Guardian relies (albeit lightly) upon the intimation that there may have been grounds to investigate domestic abuse: A woman was overheard shouting “get off me” and shortly afterwards, there was a loud crash. But at the time of publication to the public at large, police had decided there were no grounds to investigate. It is of course open to police to pursue further lines of inquiry in domestic abuse cases even where wrongdoing is adamantly denied by a potential victim (as it often is). Police determined that unnecessary. The Guardian knew they had.

The newspaper also relies upon the incident supplying what it describes as “necessary” information about Boris Johnson’s fitness for office. What did we learn? That the person closest to him considered him spoilt and selfish – but couples say things they don’t mean in anger sometimes. At its highest, then, that the prospective Prime Minister is given to yelling when angry and (only possibly) unwanted physical contact. That is relevant, though we do not in fact know how far beyond “normal” behaviour Mr Johnson raised his voice because The Guardian has not released the tape and it is unclear how much of what was said could be overheard through the walls. We do know it is unlikely that neighbours on both sides would exaggerate. We do not know whether Johnson immediately backed away when his partner told him to do so. We can infer that had they stopped for a moment, the couple would have known they were audible to others. That lapse of judgment in a moment of stress is relevant. There is, then, a public interest value in the information, albeit limited.

Given the latitude given to public criticism of a potential office holder of the highest office in the land, it is unlikely a Judge would find against The Guardian. The newspaper can of course pray in aid the dramatic change in opinion polling data as evidence of public interest impact. Initial – but repeated – police denials that any investigation had occurred are relevant too. The paper exercised restraint by not releasing the tape. The relevance of the laptop is unclear but falls within the margin of deference the law gives to editorial judgment.

The practical reality, of course, is that Boris has more interest in moving the narrative onward as swiftly as possible than pumping the story with the oxygen of a legal claim – and in the context of limited publication, it is unlikely that Carrie Symonds, who has supported Boris for PM, would bring one in her own right. The risk of an actual claim was always limited indeed: Debate among media law practitioners about the theoretical risk of legal liability, then, amounts to little more than debate over what was on Boris’s laptop: In both cases, tittle-tattle.

Zoe McCallum is a barrister at Matrix Chambers, practising in the field of media and information law.