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A digest of recent news (1) - UK judgments

30 May 2011. Published by Keith Mathieson, Partner

For one reason and another, the blog has been unable to report on much of the recent news. This entry is an attempt to remedy the situation. Normal service should be resumed shortly.

UK court judgments

MJN v News Group

A footballer case where the Sun wished to publish the account by a lingerie model of her affair with a married Premiership player.  Beatson J made an order on 5 May which was not opposed by the Sun (and the terms of which had indeed been discussed in advance between Counsel for the claimant and Counsel for the Sun).  The order permitted the model to tell her story provided she did not identify the player or include salacious details of the affair.  The resulting story in the Sun included a tabloid-speak reference to the order: "The only version of this story that rat's lawyers will let us print".

On the return date Sharp J was satisfied that (a) the claimant had a reasonable expectation of privacy in the information (the affair had been conducted in private; hardly anyone knew about it; the claimant said he and his wife would suffer distress and embarrassment if it were now to be disclosed; and the claimant had not previously courted publicity); and (b) publication would constitute an unjustifiable interference with the claimant's private and family life.  The judge considered it a material factor in her decision to continue the injunction that the Sun and its "very experienced" legal advisers were not opposing the continuation of the order (subject to the two provisos mentioned above).

An interesting aspect of the case is Sharp J's decision to hold the hearing in public despite the claimant's application that it should be heard in private.  As Sara Mansoori has noted on the Inforrm blog, this was a departure from the normal practice.  The current indications are, however, that the courts will now hear privacy applications in public whenever possible: see, e.g. Goodwin and TSE, discussed below.

Goodwin v News Group

This case was first reported under the reference MNB v News Group, a decision by Sharp J.  The fact that MNB happened to be Sir Fred Goodwin, former chief executive of RBS, emerged later in the judgment of Tugendhat J following an application to vary the injunction granted by Sharp J, one effect of which was to prevent identification of Sir Fred as the claimant.  That application was based on a statement by Lord Stoneham in the House of Lords in which he revealed that Sir Fred had obtained a "super-injunction" to hide an alleged relationship with a senior colleague.  That statement was widely reported on newspaper and other websites within minutes of being made.  Sir Fred recognised the futility of attempting to deny that he was the claimant and did not oppose the application to identify him.  He did, however, oppose any variation of the order that would permit either (a) publication of any details of the alleged relationship or (b) identification of the lady in question.

This was not the first time Sir Fred's injunction had been mentioned in Parliament.  John Hemming MP had previously mentioned the fact that Sir Fred had obtained an injunction (allegedly a super-injunction, not in fact the case).  That statement was made in the House of Commons and was widely reported.  But it was not until Lord Stoneham's intervention that the subject-matter of the injunction became publicly known.

Following Lord Stoneham's statement, Tugendhat J was on the same day (19 May) invited by the defendant News Group and by Mirror Group and Associated Newspapers as third party intervenors to permit identification of the lady.  (None of the newspapers sought to publish details of the relationship.)  Tugendhat J refused the application on the ground that there was no justification for interfering with the lady's right to private and family life.  In his judgment [at paras 9 - 11] he criticised Lord Stoneham and the media for inaccuracies in their reporting of the circumstances in which Sharp J had granted the original injunction.

A fuller report and case comment by Edward Craven are on the Inforrm blog here.  A detailed case summary and comment by 1 Brick Court on the original MNB decision appears here.

Following Tugendhat's decision of 19 May, the lady in question complained that the Daily Mail had breached the injunction by publishing information about her that would have enabled her to be identified.  She asked Tugendhat J to refer the Mail to the Attorney General for contempt of court.  In a judgment handed down on 27 May Tugendhat J declined to refer the matter on the ground that he did not think it would assist the Attorney General to whom the lady was free to refer the matter herself.

CTB v News Group

Another footballer case.  The first judgment in CTB was conventional: the Sun was enjoined from publishing the identity of a married footballer who had had a fling with a young woman, in this case a former Big Brother contestant once voted 'sexiest housemate ever'.    The judgment is nonetheless interesting because Eady J took the opportunity to address suggestions by press and politicians that the courts were "introducing a law of privacy by the back door".  The judgment concisely sets out the way in which the courts have sought to resolve tensions between article 8 and 10 rights.  In the words of Eady J at para [33] of the judgment:

It follows that one can rarely arrive at the answer in any given case merely by reference to generalities.  It must all depend upon the particular facts of the case.  It follows too that there can be no automatic priority accorded to freedom of speech.  The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court.  Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority.  All will depend on the value to be attached to the exercise or proposed exercise of that freedom in the particular case.  It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another’s right to publish what has been described in the House of Lords as “tittle-tattle about the activities of footballers’ wives and girlfriends”:  see e.g. Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 at [147].  It has recently been re-emphasised by the Court in Strasbourg that the reporting of “tawdry allegations about an individual’s private life” does not attract the robust protection under Article 10 afforded to more serious journalism.  In such cases, “freedom of expression requires a more narrow interpretation”:  Mosley v UK (App. No. 48009/08), 10 May 2011, at [114].

Eady J's later judgment in CTB v News Group (No 2) is also interesting.  There were two applications before the judge.  First, News Group applied for the order to be varied so as to reveal the footballer's identity on the ground that his identity was the subject of widespread coverage on the internet such that it was now pointless to continue the anonymity order.  Second, the claimant applied for specific disclosure by News Group of emails and other documents identifying or tending to identify the claimant (the intention apparently being to show that News Group or its employees had breached the order by disclosing who the claimant was).

It was said on behalf of News Group that tens of thousands of people could find out who CTB was by making appropriate internet searches.  Eady J was unimpressed by this argument for a variation, seeing its logical conclusion as being that courts should never make injunctions on the basis that defendants or others might ignore them:

One has only to pose the question for the answer to become obvious.  Should the court buckle every time one of its orders meets widespread disobedience or defiance?  In a democratic society, if a law is deemed to be unenforceable or unpopular, it is for the legislature to make such changes as it decides are appropriate.

Eady J's attention was drawn to his own ruling in Mosley where he decided that the extent to which the private information had been accessed meant there was no longer any purpose in granting an injunction.  In that case, the publicity had occurred prior to the injunction being granted, whereas here:

... the Internet allegations prayed in aid by Mr Spearman took place after the order was made.  Different policy considerations come into play when the court is invited to abandon the protection it has given a litigant on the basis of widespread attempts to render it ineffective.  Furthermore, unlike the Mosley case, there is no doubt other information that Ms Thomas could yet publish, quite apart from this Claimant’s identity, which is not yet in the public domain.  The injunction thus continues to serve a useful purpose, from the Claimant’s point of view, for that reason alone, since she is amenable to the jurisdiction of the court.  Otherwise, he would not seek to maintain it.

Eady J considered that the law had to protect information in respect of which there was a reasonable expectation of privacy and "what is “reasonable” depends on the circumstances.  It is a concept that is not susceptible in itself to bright line boundaries".  He continued:

It is important always to remember that the modern law of privacy is not concerned solely with information or “secrets”:  it is also concerned importantly with intrusion.  That is one reason why it can be important to distinguish between the way the law approaches public domain arguments in relation to commercial or state secrets, for example, and that which is appropriate to personal information.  It also largely explains why it is the case that the truth or falsity of the allegations in question can often be irrelevant:  see e.g. McKennitt v Ash [2008] QB 73 at [80] and [87].

It is fairly obvious that wall-to-wall excoriation in national newspapers, whether tabloid or “broadsheet”, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the Internet or in foreign journals to those, however many, who take the trouble to look it up.  Moreover, with each exposure of personal information or allegations, whether by way of visual images or verbally, there is a new intrusion and occasion for distress or embarrassment.  Mr Tomlinson argues accordingly that “the dam has not burst”.  For so long as the court is in a position to prevent some of that intrusion and distress, depending upon the individual circumstances, it may be appropriate to maintain that degree of protection.  The analogy with King Canute to some extent, therefore, breaks down.

So that is the judicial answer to the question many people are currently asking: what future do privacy injunctions have in the days of social networking and the internet?  As Eady J further explained:

... it seems to me that the right question for me to ask, in the light of JIH v News Group Newspapers Ltd [2011] 2 All ER 324 and Re Guardian News and Media Ltd [2010] UKSC 1, is whether there is a solid reason why the Claimant’s identity should be generally revealed in the national media, such as to outweigh the legitimate interests of himself and his family in maintaining anonymity.  The answer is as yet in the negative.  They would be engulfed in a cruel and destructive media frenzy.  Sadly, that may become unavoidable in the society in which we now live but, for the moment, in so far as I am being asked to sanction it, I decline to do so.  On the other side, as I recorded in my judgment on 16 May, it has not been suggested that there is any legitimate public interest in publishing the story.

In relation to CTB's application for disclosure, this was refused by Eady J on the grounds that it was unnecessary and disproportionate and might well expose the defendant to the risk of self-incrimination.  (The newspaper had argued that the application was entirely speculative, there being no evidence of any breach by it or its employees.)  In any event, if the claimant considered that a contempt of court had been committed, Eady J said it was open to him to report the matter to the Attorney General for further action.  (Compare the similar approach by Tugendhat J in Goodwin, discussed above.)

Note: On the same day as Eady J declined to vary the injunction, CTB was named in the House of Commons.  The decision to identify him has been welcomed by some but not by others.  Following the naming of CTB in the House of Commons, News Group attempted once more to persuade the court to remove the anonymity order.  In what may seem to many people a curious decision, the application was refused.  Tugendhat J explained his decision as follows:

It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.

TSE v News Group

Yet another footballer case.  The facts are similar to MJN, discussed above: married footballer with children, sexual relationship with woman not his wife, etc etc, except that in this case the woman in question also wished to keep the thing private and was a claimant in the proceedings jointly with the footballer.  An injunction was of course granted with anonymity to both claimants despite there apparently having been a certain amount of publicity about the matter on the internet, including Twitter: see para 28 of the judgment of Tugendhat J.

In what is becoming something of a pattern, the judge took the opportunity to address what he saw as certain misconceptions about the developing law of privacy, in this case that injunctions granted by the courts are disproportionately beneficial to professional footballers.  The judge noted that there is no stereotypical privacy claimant; that many claimants are women and children; and many cases do not involve information of a sexual nature.

Another interesting aspect of the case was the judge's criticism of News Group for its practice of neither opposing nor consenting to applications for injunctions, apparently because this enabled it to tell its readers it had been "gagged" without having to go to the trouble and expense of going to court to contest the application.

See further sections 3.9 and 10.3 of The Privacy Law Handbook