Football Shagging Orders

Are judicial gagging orders - or as they should be called: Shagging Orders - a natural development of our privacy laws or are they merely a pay as you go way of stopping the press reporting on footballers (and others - such as golfers) who play away as they go?

In the latest round of the footballer known only as 'JIH' whatever that may stand for or not and his away games with YY from his partner XX as exposed by ZZ - he was today successful in convincing the Court of Appeal that it should uphold his appeal against a decision by High Court judge Mr Justice Tugendhat that his anonymity could be revealed. So is it right that those busy sportspeople should get to keep the press from publishing details of their away games?

Riding the wave of recent judicial moves to pull together and uphold some kind of privacy law, JIH and others have been successful in persuading some of their lordships that no matter what they have been up to (as Max Mosley went to lengths to demonstrate) they deserve to have whatever private life they choose. This is supported by the underlying human right to privacy which derives from the European Convention on Human Rights (Article 8) as given effect to in the UK via the Human Rights Act. The interesting thing with the law is that it creates a right of privacy vis a vis the state and not necessarily News Group Newspapers or other media outlets. In fact to engage privacy protection one has to go to court and persuade a judge as a public body/servant that they have a duty under the law to ensure that people's right to privacy is upheld/protected. So without access to or the funds to pocket a well versed privacy lawyer to bang on the court door, there is no automatic right to guard against privacy intrusion.

The media has its PCC Code or Ofcom broadcast codes to prescribe what the respective parts of the media should be doing in relation to privacy but these get balanced against the self-proclaimed job of the press - particularly tabloids - to expose philandering footballers (and others). Similarly in terms of law, the European Convention also provides for the right to free speech that offers some press freedoms, albeit not absolute ones.

So this brings us to the question at issue - to what extent should protecting footballers private lives be an automatic right they qualify for and the courts should uphold when pitched against the public's right to know and the press' right to report on their morally questionable antics?

Armed with the right lawyers at the right price our shagging sportsmen are managing to buy their way out of trouble but as long as the rules of the game - in the case of the law - those of privacy - remain dependent on which judge or judges are sitting in which court and interpreting their human rights laws on any given day - this latest round in the JIH case may prove less decisive in the long term. We have yet to address the rights of JIH's ZZ to her freedom of expression - why should she not be able to talk about her life and JIH's involvement with it?

The jury's still out (not that one has them in privacy cases) but if one did they probably would be and there are very likely more John Terry's or Colin Montgomeries out there to test they sytem and challenge the desirability and effectiveness of the super injunction.