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16 June 2011
MJN v News Group(1)
The Sun newspaper wished to publish a model's account of her affair with a married Premier League footballer. Justice Beatson made an order on May 5 2011. The Sun did not oppose the order, the terms of which had been discussed in advance between counsel for the claimant and counsel for the newspaper. The order permitted the model to tell her story, provided that 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 Justice Sharp was satisfied that the claimant had a reasonable expectation of privacy in the information, given that:
The judge also considered that publication would constitute an unjustifiable interference with the claimant's private and family life. She considered it material that The Sun and its "very experienced" legal advisers were not opposing the continuation of the order, subject to the two provisos.
The judge decided to hold the hearing in public, despite the claimant's application that it be heard in private. However, other cases suggest that the courts will now hear privacy applications in public whenever possible.
Goodwin v News Group
Goodwin v News Group(2) was first reported under the reference MNB v News Group. The fact that 'MNB' was Sir Fred Goodwin, the former chief executive of RBS, emerged following an application to vary the injunction, one effect of which was to prevent the identification of Goodwin as the claimant. The application was based on a statement by Lord Stoneham in the House of Lords, in which he revealed that the former chief executive had obtained a super-injunction to hide an alleged relationship with a senior colleague. The statement was widely reported on newspaper websites and elsewhere online within minutes. Goodwin recognised the futility of attempting to deny that he was the claimant and did not oppose the application to identify him. However, he opposed any variation of the order that would permit publication of details of the alleged relationship or identification of the woman in question.
This was not the first time that Goodwin's injunction had been mentioned in Parliament. John Hemming MP had previously mentioned that Goodwin had obtained an injunction.(3) This statement was made in the House of Commons and was widely reported, but it was not until the Stoneham intervention that the subject matter of the injunction became publicly known.
On the same day, Justice Tugendhat was invited by the defendant, News Group, and by Mirror Group and Associated Newspapers as third-party intervenors to permit identification of the woman involved, although none of the newspapers sought to publish details of the relationship. The judge refused the application on the grounds that there was no justification for interfering with the woman's right to private and family life. His judgment criticised Stoneham and the media for inaccuracies in their reporting of the circumstances in which the original injunction had been granted. The woman in question complained that the Daily Mail had breached the injunction by publishing information about her that would allow her to be identified. She asked the judge to refer the Daily Mail to the attorney general for contempt of court, but he declined to do so, as he did not think it would assist the attorney general (to whom the woman in question was free to refer the matter herself).
The first judgment in CTB v News Group(4) was conventional: The Sun was enjoined from publishing the identity of a married footballer who had had a brief affair with a young woman. However, Justice Eady took the opportunity to address suggestions by politicians and the media 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 rights under Articles 8 and 10 of the European Convention on Human Rights:
"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 eg Jameel v Wall Street Journal Europe SPRL  1 AC 359 at . 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 48009/08), May 10 2011, at ."
The judge's later judgment in CTB v News Group (No 2)(5) is also instructive. There were two applications before him.
First, News Group applied for the order to be varied so as to reveal the footballer's identity. It argued that his identity was the subject of widespread coverage on the Internet, to the extent that it was pointless to continue the anonymity order.
Second, the claimant applied for specific disclosure by News Group of emails and other documents that identified or tended to identify the claimant, the intention apparently being to show that News Group or its employees had breached the order by disclosing the claimant's identity.
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. The judge was unimpressed by this argument for a variation; he saw 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."
The judge's attention was drawn to his own ruling in Mosley, in which he decided that the extent to which the private information had been accessed meant that there was no further purpose in granting an injunction. In Mosley the publicity had occurred before the injunction was granted, whereas in this case:
"the internet allegations... 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."
The judge considered that the law must protect information in respect of which there is a reasonable expectation of privacy, and that the issue of what is 'reasonable' depends on the circumstances, describing the concept as being "not susceptible in itself to bright-line boundaries". He went on to say that:
"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... McKennitt v Ash  QB 73 at  and .
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."
This can be seen as the judicial answer to questions about the future of privacy injunctions in the days of social networking and the Internet. As the judge further explained:
"It seems to me that the right question for me to ask, in the light of JIH v News Group Newspapers Ltd  2 All ER 324 and Re Guardian News and Media Ltd  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."
CTB's application for disclosure was refused 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, as there was no evidence of a breach by it or its employees. The judge stated that if the claimant considered that contempt of court had been committed, it was open to him to report the matter to the attorney general for further action - a similar approach to that taken in Goodwin.
On the same day that the application to vary the injunction was declined, CTB was named in the House of Commons. News Group again attempted to persuade the court to remove the anonymity order. The application was refused - a decision which was explained in the following terms:
"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
The facts of TSE v News Group(6) were similar to those in MJN. However, in this case the woman in question also wished to keep the affair private and was a claimant in the proceedings jointly with the footballer. An injunction was granted with anonymity to both claimants, despite the fact that the matter had received a certain amount of publicity on the Internet, including on the social networking website Twitter.
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 that many cases do not involve information of a sexual nature.
The judge criticised News Group for its practice of neither opposing nor consenting to applications for injunctions, apparently because this enabled it to tell its readers that it had been 'gagged' without having to go to court to contest the application.
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