Are privacy injunctions too restrictive?

Has privacy law gone too far? It’s not just the editor of the Daily Mail who thinks so.

The Prime Minister has said he is “uneasy” about judges “creating a sort of privacy law” and Andrew Marr is perhaps the first (and probably the last) privacy claimant to express embarrassment over his own injunction.

It is at best a half-truth for David Cameron to suggest that it is judges, not Parliament, that are making the law.  The principal driver of the cause of action now known as misuse of private information is the Human Rights Act 1998.  That statute incorporated into UK law Article 8 of the European Convention on Human Rights, which enshrines a person’s right to “private and family life”.  While it is true that judges have made the decisions that now govern use and misuse of private information at common law, they could not have done so had Parliament itself not first introduced the Human Rights Act.

Another area where mythology has taken hold is super-injunctions.  A super-injunction is not just another name for an anonymity order.  It is an injunction the terms of which prevent disclosure even of the fact that the proceedings in question exist.  For all the fuss that is made about them, and before Lord Neuberger's super-injunction committee has even reported, super-injunctions are for all practical purposes already dead.  There is not a single recorded instance of a super-injunction having been made in 2011.  The only circumstances in which the courts are in the future likely to make super-injunctions are cases where the defendant cannot be trusted with the information that proceedings are being taken against him.  If the court believes a defendant, particularly a blackmailer, will frustrate an injunction if he realises a court application is pending, it may well consider it appropriate to conceal the existence of the proceedings until the order can be served on him.  To most people, that would seem to be a reasonable and practical solution where there is reason a defendant will do whatever he can to defy the court's authority or avoid its jurisdiction.

While super-injunctions are rare, anonymity orders are all around us.  The prevalence of anonymity orders in privacy cases is not just creating an alphabet soup for lawyers; it is itself feeding speculation, often hilariously wrong, about who is involved and encouraging notions that the courts are developing a new form of secret justice.  Following the decision in JIH v News Group, the procedure of choice in cases involving interim injunctions now appears to be anonymisation of the person seeking privacy but disclosure of the nature of the information that person is seeking to protect.   It has long been part of our system of open justice that the public should know who is suing whom. This unsatisfactory expedient – unique to privacy cases - represents a significant derogation from that principle.

This derogation from open justice is of course justified on the basis that if you permit the public to know that the star of a TV soap is trying to stop someone publishing photographs of him visiting a Thai massage parlour, that is tantamount to revealing the very information he is seeking to protect. But is the ring of steel cast round so many privacy cases really necessary and proportionate?  It is not as if the courts are giving much away about the allegedly private information these anonymous claimants are seeking to protect.  In an effort to prevent the public putting two and two together, and even to dampen speculation on the internet, the courts now use a form of order known as a "DFT" order to prevent the publication of any material not contained in the court's judgment or order.  So far, the judges have taken a highly restrictive approach, possibly reflecting their distrust of the media and users of the internet.  That distrust is not always justified.

Are the courts sometimes too willing to accept privacy claims at face value?  Mr Justice Tugendhat saw through John Terry's attempt to stop the press revealing his alleged affair, finding he was more concerned about his sponsorship deals than any distress a breach of his privacy might cause.  Other celebrities have had an easier ride.  In some cases there is no doubt that men behaving badly are effectively using privacy law to manage their reputations and very probably to keep their affairs quiet from their partners.  Following the decision in ETK, your privacy rights are enhanced if you happen to have children who might be distressed by revelation of your misconduct. 

There have so far been few cases in which the courts have had to give real consideration to the public interest in publishing private information.  The "intense focus" the law requires is a process not best suited to the determination of cases dealt with on an interim or emergency basis.  It is unfortunate that the scope of important new privacy rights is being determined mainly in cases involving emergency applications prepared at short notice where not all parties are even represented, but that is a feature of privacy that is unlikely to change.  Even if a statutory tort of privacy existed, it would still be the courts' job to apply that law to individual cases and we can be certain that some of their decisions would be no less controversial than they already are.

This article first appeared in the 12 May 2011 of Legal Week

See further sections 3.9 and 10.3 of The Privacy Law Handbook