Out-Law News 4 min. read

Injunction footballer wants to search journalists' email and text records

A footballer has asked the UK High Court to grant him permission to search through emails and text messages of journalists at the Sun newspaper, according to media reports.

The footballer wants access to reporters' communications to establish if they broke the terms of a court order that bans him from being identified, the articles say.

Hugh Tomlinson QC, the footballer's lawyer, also asked the court for permission to access Sun columnist Kelvin MacKenzie's emails and text messages, the Press Gazette reports. MacKenzie is a former editor of the paper and told the BBC Radio 4's Today programme that he had been inundated with requests to name high-profile people who hold privacy injunctions.

"Sometimes I give [the names], sometimes I don't," MacKenzie told the programme.

"He is there telling the world that he breaks court orders whenever he feels like it," Tomlinson told the High Court on Monday, the Press Gazette said.

Richard Spearman QC, representing Sun owner News Group Newspapers, referred to the applications as "unnecessary", "unprecedented", "disproportionate", and "a fishing expedition", the Press Gazette said.

MacKenzie told the Financial Times that he only passed on gossip. “It’s a matter of relaying journalistic gossip and nothing is going to stop me doing that,” Mackenzie told the paper.

Mr Justice Eady ruled that a ban on the media naming the footballer should continue until a trial is held. The footballer is said to be married and has had an affair with reality TV contestant Imogen Thomas, the court ruling said.

The footballer's right to privacy outweighs any public interest in the story, the judge said. "There is certainly no suggestion of any legitimate public interest in publishing such material," Mr Justice Eady said.

A person's right to privacy and the right to freedom of expression are both guaranteed in the European Convention on Human Rights and the UK Human Rights Act. Judges must balance the two issues when deciding whether to protect individuals' private lives from being exposed publically.

Mr Justice Eady ruled that there was sufficient evidence available to him to suggest that Thomas was going to sell her story of the affair to a newspaper. The footballer said Thomas had asked for £50,000 from him to prevent the story appearing, the court papers said.

"The evidence before the court at that point, therefore, appeared strongly to suggest that the [footballer] was being blackmailed (although that is not how he put it himself), I hasten to add," Mr Justice Eady said.

"The majority of cases over the last few years, in which the courts have had to apply those principles, would appear to be of the so called 'kiss and tell' variety and they not infrequently involve blackmailing threats," said the judge. "Blackmail is, of course, a crime and in that context the courts have long afforded anonymity to those targeted as a matter of public policy. That has not hitherto been questioned."

The footballer had been suspicious that he was being set up, according to the ruling.

"Although the position is not yet by any means clear, the evidence before me ... appeared to suggest that Ms Thomas had arranged the hotel rendezvous in collaboration with photographers and/or journalists. He first began to 'smell a rat' when she told him at the first April meeting, perhaps feigning innocence, that she had been followed and recognised when she visited the first hotel," Mr Justice Eady said in his court ruling.

Thomas told the footballer that The Sun was thinking of publishing a story about their affair along with photographs of her at hotels, the court papers said.

"It seems ... that The Sun was ready to take advantage of these prearranged meetings in order to be able to put forward the claim that it was The Sun which had found him 'romping with a busty Big Brother babe'," Mr Justice Eady said.

Thomas said she was "distraught" that she couldn't defend her reputation because of the court order and said the accusations that she blackmailed the footballer could not "be further from the truth".

"I’ve read the judgment and am stunned by how I’m portrayed," Thomas said in a statement, according to the Press Gazette. "Yet again, my name and my reputation are being trashed while the man I had a relationship with is able to hide. What’s more, I can’t even defend myself because I’ve been gagged. Where’s the fairness in this? What about my reputation? If this is the way privacy injunctions are supposed to work then there’s something seriously wrong with the law."

Injunctions against the publishing of private information have been making headlines in recent weeks. A Twitter user posted details earlier this month about celebrities' private lives, claiming to reveal that their identities were protected by court super-injunctions. Super-injunctions ban reporting on court cases as well as the very existence of the ban.

Last week a Court of Protection judge expressly named Twitter as being a banned medium for publishing the identity of a person.

The European Court of Human Rights also rejected a case brought by Max Mosley, the former motor racing boss, which would have forced media editors to tell people prior to publication that they were going to reveal a story about the person's private life.

Culture Secretary Jeremy Hunt has said that he would explore the creation of new privacy laws in the UK and a report into super-injunctions is expected to be published later this month.

Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.

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