UK: The Privacy Injunction Fights Back

Last Updated: 14 February 2011
Article by Duncan Lamont

Duncan Lamont looks into HIJ, the latest naughty celebrity to stop the Sun from revealing titillating, if trivial, information about his private life. But the Court of Appeal has hinted at the new laws to come...

Shortly before Christmas the decision of Mr Justice Tugendhat NOT to grant an Order preventing the publication of the identity of a famous footballer who had earlier obtained a privacy injunction against the Sun (to stop allegations being published in a national newspaper) seemed to indicate a new approach on the part of the judiciary and was welcomed by the tabloids. Shaming by naming even if the tawdry details had to remain secret.

The claimant was known as HIJ and was refused leave to the Court of Appeal. But he did not give up, contrary to media expectation, and went to the Court of Appeal for leave and, unusually, the court heard his substantive application then and there. In a hard hitting judgment the Master of the Rolls (with whom the other Appellate Judges agreed) reached the conclusion that the media judge had been wrong in his understanding of HIJ's position as in the choice between revealing his identity or revealing intimate details about what the allegations were about.

Some tabloid newspapers had rather hoped that the Court of Appeal would put the boot into the culture of privacy injunctions which had so inconvenienced them. That hope was dashed big time.

Of course broadcasters have to comply with the tough regulation of OFCOM rather than the less strict PCC Code so they do not do the "kiss and tell" so beloved of tabloid editors. But rather than sign the death warrant for privacy injunctions, in effect leaving claimants to soldier on to get damages whilst everyone laughs at them (Max Mosley) the Court of Appeal focused on the Article 8 right of privacy, in a way that perhaps is a forewarning of a new environment when the European Court in Strasburg lets us know its views on the fact that Max Mosley had been given no opportunity by the News of the World to injunct and first knew of the allegations of his private if bizarre sexual practices with five prostitutes on publication rather than been given time for a right of reply which would no doubt have allowed him to seek and obtain an injunction to stop publication altogether.

Slightly surprisingly bearing in mind the journalists well known and long established mantra of "no story without a name" the judges concluded that the public interest would be better served by the media being able to report on the nature of the information rather than being allowed to publish the name of the claimant.

The need for total anonymity had already been grappled recently at first instance in the XJA case where Sharpe J had granted secrecy to a different sportsperson who faced tabloid intrusion into his private life.

In the HIJ case there was a complexity in that the world famous sportsman had done "it" before and this had been published in the tabloids so if his name was put in the public domain (with an Order that only protected the allegations) there would have been an assumption that he was up to the same thing again. The Court of Appeal was rather coy about what was going on but did reveal that the case was about an alleged sexual encounter (so no surprise there then). But reading the judgment one cannot help but notice a focus on the fact that the earlier story had been published "without HIJ having received any prior notice" – which goes to the heart of the ECJA Max Mosley case. We have been warned.

So the media's hope that the collapse of the John Terry injunction might allow Article 8 to be ignored in favour of Article 10 (free expression) seems to have been misplaced as the Court of Appeal has used the opportunity to lay down the law and the judgment will, of course, be scrutinised by the media judges who deal with these sort of applications on a weekly basis. Another privacy case is currently awaiting determination by the Court of Appeal, dealing with another point (how long injunctions against the media should last) so the law of privacy remains in a state of flux. Watch this space!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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