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Opinion: “Privacy in August 2010” – Mark Thomson

The recent controversy over privacy injunctions and so-called “super-injunctions” was reignited this month. A few sportsmen have sought and obtained interim injunctions from the High Court.  The numerous critical descriptions of these injunctions as “super injunction” appear wrong since, in most of the cases, it appears the fact of granting of the injunction was not restrained. It also appears clear that they concerned the allegations about the sex lives of the various sportsmen.

The Sun, The Independent, The Star, and The Daily Mail have suggested that these injunctions are  seriously controversial. Most of them assert that these injunctions are like the initial John Terry injunction in that they were super-injunctions. In fact Terry was not a “super-injunction” as is clear from paragraph 137 of the Terry decision. It is also clear from yesterday’s report in the Independent that Mr Justice Kenneth Parker continued the interim injunction in the case ZXC v BNM until trial or final order and that this case was not a super-injunction.

Media Arguments

The Daily Mail summarises the press position powerfully in its leader column that the assaults on free speech began with the Mosley decision in 2008 and

“of course the Courts must be able to offer protection against malicious rumour, but by seeking to censor debate about conduct which many would consider to be unacceptable or socially harmful, our judges are veering into deeply dangerous direction.”

The press furore culminated in an item on the Today programme, last Saturday with Tom Crone senior lawyer at News Group newspapers and Hugh Tomlinson QC.  Tom Crone said that the Sun and the News of the World received an injunction or an injunction threat at least twice every three weeks and that there were cases where stories which were gagged which were in the public interest. He said;

“What is worrying in this country is that from a position of something like five years ago where we were the freest freedom of speech country probably in Europe, we are now the most suppressed and most gagged…

We’ve got the very tough privacy law which has been instituted by the judges. ..I think we have got to the stage now where the judge-made law where it really could not get any worse. If the parliamentarians, after a democratic debate, can put together a set of rules and regulations in this area then maybe it would be an improvement….

Potentially, I think if people choose to live public lives and choose to be public figures then certain responsibilities have to go with it. The responsibility that goes with it is primarily to behave in accordance with the carefully nurtured public image that you receive rather large sums of money to profess.”


Three main arguments appear from the tabloid coverage;

  1. Terry was a superinjunction and these are now widespread and increasing as shown by the recent injunctions obtained by sportsmen in last few weeks.
  2. Immoral behavior must be exposed. Naming and shaming of sexual misconduct must not be gagged.
  3. Judges have sought to Bypass parliament and created by stealth a backdoor privacy law.

The super-injunction argument does not apply in these cases or in the Terry case and is therefore misplaced. In any event the Master of the Rolls’ Committee, will no doubt give guidance on this procedural issue.

The issue of immorality and public interest is more complex. It was considered by the Court of Appeal in a number of cases and in detail in our post on the Terry case, entitled “Sex, Privacy and Public Interest.”

The final argument of Judges bypassing parliament to create by stealth a backdoor privacy law, is based on a misunderstanding of the common law and must be put in historical context, which will be the subject of a separate post in the next few days.

One of the more interesting comment on the current furore, was a reader’s comment on the Independent;

“What is disquieting is the use by the press, all press of the doings and suffering of others to sell copy to a celebrity hungry public for money. There is nothing benefiting the world, no one saved from hunger, or suffering, no one more wise or well informed by the reporting of these stories of the ‘private lives’ of others. I moved to this paper as a choice to avoid instrusive and unpleasant prying into the lives of others, should I consider moving on?
The free press is not something we value because it can tell us who sleeps with who, nor who tattle tales on who, but who steals and scams, who abuses power and who we trust falsely

1 Comment

  1. Marcus Partington

    Despite what paragraph 137 of the Terry judgment says the injunction which Schillings (Mr Terry’s lawyers) served on 22 January 2010 contained a provision preventing the disclosure of “the existence of these proceedings or the Applicant’s interest in these proceedings”; a fact Schillings stressed (as you might expect) in their Legal Notice which accompanied the injunction.

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