One of the criticisms raised in the recent media coverage of privacy injunctions is that the Courts are allowing rich men to silence women by the obtaining privacy orders which are out of reach of the ordinary person. As the sub-heading of Gill Phillips’ Guardian piece puts it a “Two tier system is being created as rich male stars take advantage of privacy protection“.
But neither point is a fair analysis of the position. Although, for obvious reasons, privacy injunctions are often obtained by well off men (because these are the people whose private lives the press like to write about) this does not mean that the law is being applied unequally to men and women; nor does mean that such orders are outside the grasp of persons with lesser means.
Dealing with the second point first: the notion that privacy injunctions are only available to the rich is plainly wrong. The existence of CFAs mean individuals with privacy claims but no money can still obtain a legal remedy. The fact that there are few examples of such cases is due to the lack of interest the media has in the private lives of ‘ordinary people’, preferring instead to channel their efforts into celebrities and others in the public eye.
However, CFAs remain are available for privacy cases and are used by ordinary people whose private information has been wrongfully disclosed and, by people who the media might be interested in, such as prisoners on day release. The future of CFAs is extremely important to this group of people, as without such agreements there really will be a problem. Steven Heffer’s Inforrm post on the proposed CFA Reforms can be read here.
As to the reference to Courts allowing rich men to silence women; some of the coverage has made it sound like these orders are being handed out without any proper consideration. The fact is that injunctions to prevent disclosure of private information are only granted if the applicant demonstrates that the necessary legal requirements have been met. One of these is that there has to be a threat of publication. In most of the recent reported cases involving sexual information the threat has come from the ‘other woman’ who has been party to an adulterous affair. However, if the applicant was a married woman seeking to prevent threatened disclosure of an adulterous affair by her male (or indeed female) lover and there was no proper justification for its publication, then an injunction would also be granted.
The reason why most of the applicants are rich celebrities is less to do with their status and more to do with the fact that newspapers are keen to publish stories about such individuals: celebrity sex sells well (as to which see Mark Thomson’s post on Inforrm here). The reason why most applicants are men is debateable: either fewer women are having adulterous affairs, or the people with whom they are having affairs are less likely to ‘kiss-and-tell’. There have also been injunctions granted where both parties to the adulterous relationship have wanted to keep the information private (ETK v News Group Newspapers Ltd  EWCA Civ 439), being a prime example). There have also been cases of unmarried applicants who aren’t even in relationships but still wish to prevent publication of information about their sex lives.
In deciding whether or not to grant the injunction the Court will first consider whether a reasonable person, in all the circumstances, would regard each item of information as “confidential” or “private”; if satisfied, the Court will then consider whether there is, in any event, some proper justification for publication of the information (for a fuller discussion see Hugh Tomlinson QC’s post ‘Part 1: Privacy Law – the way ahead?’ ). As I discuss below, the order of these tests and the factors that are taken into account are key.
Sexual relationships are at the core of private life and the Courts have held that such information is private and confidential. As Article 8 also encompasses ‘family life’, Courts have also taken into account the effect publication of the information would have on the applicant’s family in determining whether his Article 8 is engaged. In OPQ v BJM & CJM ( EWHC 1059) where the Defendants were seeking to sell intimate photographs of the Claimant to the newspapers and which Mr Justice Eady described as a “straight forward and blatant blackmail case”, the judge appeared to go even further and consider the Article 8 rights of the Applicant’s family members themselves:
“There is also evidence as to the likely adverse impact of publicity on the health and wellbeing of various members of the Claimant’s family”  … “Having decided that the rights of the Claimant and his family under Article 8 of the European Convention on Human Rights and Fundamental Freedoms were engaged, as they so plainly were…”  (emphasis added)
But is there a case for saying that by their own actions adulterers have waived their Article 8 rights? Gill Philips appeared on the Media Show last week and said that privacy injunctions are about celebrities protecting infidelities and in her opinion such actions fell on the non-private side of the line, as by their actions such people were showing no respect for their own family life. Therefore, the argument might go, that Article 8 is not engaged at all and there is no need for the Court to move on to consider the balancing exercise.
While one could say that these celebrities had only themselves to blame for their actions and the consequential harm that their family (they do know, after all, that they are in the public eye), there are a number of difficulties with this argument.
Firstly Article 8 is also about an individual’s ‘private’ life and there is wide agreement (not just among judges but according to opinion polls, among the public generally) that sexual information is private. It would be very strange if sexual information of married couples was ‘private’ whereas sexual information resulting from adulterous behaviour was not. If that was going to form part of the test, what about unmarried couples? What about married couples in ‘open relationships’? What about single people?
Secondly, the definition of ‘private life’ under Article 8 is a wide one and includes a person’s physical and psychological integrity. To quote the Court of Human Rights in Von Hannover v Germany 
“the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of ‘private life’.
Thirdly, privacy injunctions relating to sexual information often involve information arising out of a private and confidential relationship – information which the parties have agreed to keep from the rest of the world. This would exist in the case of someone having an affair. The fact that they might not be ‘showing respect for their own family life’ would not impact on that confidentiality.
Finally, in determining whether there was a reasonable expectation of privacy in relation to the information should the Courts not consider the impact of the threatened publication (as it appeared to do in OPQ)? Or this factor one that can only be considered as part of the ‘balancing exercise’? The consequence of not granting an injunction may well be publication of the adulterous relationship to the world at large via the media. The impact on the private and family life of the applicant, particularly if there are children involved, could be extremely damaging. In ETK v News Group Newspapers  – , Ward LJ having referred to the importance of the welfare of children and also summed up the benefits of publication in that case as follows:
“Here there is no political edge to the publication. The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication. The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public. As Lord Hope said of Miss Campbell (paragraph 120 of Campbell v MGN Ltd),
“… it is not enough to deprive Miss Campbell of her right to privacy that she is a celebrity and that her private life is newsworthy.”
In my judgment the benefits to be achieved by publication in the interests of free speech are wholly outweighed by the harm that would be done through the interference with the rights to privacy of all those affected, especially where the rights of the children are in play.”
Under the current law sexual information is private. The fact that applicants may have not shown much respect for their own private lives by having an affair is not a factor referred to in recent judgments. It is not a point which has been argued by the media. Indeed, privacy is moving in the other direction as following ETK, it is arguable that an adulterer, with a wife and children who will be adversely effected by the publication and can therefore rely on the Article 8 ‘family’ right, may be in a better position than a single person with no such Article 8 rights.
But this is not an end of the matter – despite the lack of media coverage in relation to this aspect of privacy injunctions – the courts have to, and do, consider the ‘public interest’ test: an adulterer who has publicly portrayed themselves as a loyal husband or wife who does not have affairs is highly unlikely be granted an injunction (even if s/he has a spouse and children). The public interest in exposing hypocrisy is still – contrary to the impression given in many press reports – likely to be decisive.