Opinion: “Privacy, the Press, Press regulation and super-injunctions: more heat than light” – Chris Pounder

Super injunctions just for the rich and powerful? The Courts making it up a privacy law as they go along? Is that the impression you get from the media coverage of the current super injunction case? However, did you know that, in this case, the Court concluded that the question was more about blackmail than free speech? Did you know that the newspaper did not provide any evidence as to why the public interest was served by disclosure?

One reason why the debate about privacy and press freedom is so skewed is because the public gets all its information from the very press that has a vested interest in the outcome of the debate. The fact that the media is against any further privacy constraints should not come as a surprise; for the tabloids especially, more bonking inevitably leads to more banking.

So, in this blog, I identify the six legal tests the Courts are using when considering to apply an injunction and I redress the collective press amnesia by reporting what the press has often failed to report.  I then conclude by focusing on the real issues. As usual, the cases are fully referenced.

Six legal tests before an injunction is granted

In another recent judgment, relating to a case involving a sexual relationship (male and female, both married, working in the entertainment industry – rumoured to be the same TV show), the woman lost her job soon after the man ended the affair following a denouement with “the wife”. The News of the World (prop. Mr Murdoch) wanted to publish a story that the two were connected and that woman was sacked because of the ending of their relationship. The man successfully applied for an injunction to stop publication arguing that it would interfere with his attempts to rebuild his family life (ETK and News Group Newspapers Ltd ([2011] EWCA Civ 439).

This judgment is useful in that it set out six principles which govern an application for an interim injunction to restrain publication by the press. These balance freedom of expression with privacy. The question that needs to be considered, therefore, is whether these six steps are reasonable or whether they need to be improved from a privacy or freedom of expression perspective. The six steps are:

Step 1: Has the applicant a reasonable expectation of privacy? If not, the claim fails.

Step 2: Is there a reasonable expectation of privacy in relation to the information?  This test assesses “whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, rather than the recipient, would find the disclosure offensive” (in Campbell v MGN Ltd ([2004] UKHL 22, [2004] 2 AC 457).

In Step 2, the Court also takes into account of all the circumstances of the case (e.g. “attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher” (following Murray v Express Newspapers [2009] Ch 481 at para 36).

Step 3: Is the information already in the public domain? In Browne v Associated Newspapers Ltd ([2008] QB 103 at para 61), the Court considered the impact of “information which is made available to a person’s circle of friends or work colleagues and information which is widely published in a newspaper”. What “may start as information which is private has become information known to the public at large is a matter of fact and degree for determination in each case depending on its specific circumstances”.

Step 4: Is Article 8 actually engaged? If so apply  “the ultimate balancing test” which has four elements identified by Lord Steyn (in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 A.C. 593 at para 17):

“First, neither article [8 or 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each”.

Step 5: Is there a public interest served by disclosure to the public?  (e.g. “the decisive factor in balancing the protection of private life against freedom of expression should lie in the contribution that the published photos and articles make to a debate of general interest” (following Von Hannover v Germany (2004) 40 EHRR 1, at para 76).

Step 6: Apply section 12(3) of the Human Rights Act 1998. This means that an interim injunction should not be granted unless a court is satisfied that the applicant is likely – in the sense of more likely than not – to obtain an injunction following a trial.

The omissions in some press reporting

Most of the press reported that the purpose of the super injunction was to stop the publishing of confidential material about the claimant’s private life. The judgment, for instance, states that the evidence “showed that the First Defendant, probably through her partner, had been negotiating with a newspaper group to sell intimate photographs and other information obtained in circumstances that were clearly private and in respect of which she owed the Claimant a duty of confidence”.

However, often there was a failure by the press to report some or all of the other key facts (listed below):

Fact 1: the Judge considered the case not to be one of kiss and tell, rather “a straightforward and blatant blackmail case”. Evidence was produced in Court “that a large sum of money was being discussed with Associated Newspapers Ltd but, at that point, someone acting on the First Defendant’s behalf contacted the Claimant’s solicitor on the evening of 29 January and told him that she would rather do “a deal” with him. It was said that she thought that the Claimant might prefer to pay some money to make the problem go away for good”.

Fact 2: the Court was provided evidence as to the likely adverse impact of publicity on the health and wellbeing of various members of the Claimant’s family. This involved “solid medical evidence as to the health, including the mental health, of the Claimant and various family members”. The judge concluded that “their rights plainly need to be taken into account”.

Fact 3: the newspaper provided no evidence about how the public interest would be served by the publication. The Judge notes that although the “Claimant’s advisers had been notified that leading counsel was to be instructed on their behalf to resist the order, but once the evidence was disclosed to them the matter was not pursued”. Consequently the judge reported that “I have no idea, therefore, what the grounds of opposition might have been” and as a result “I have to carry out the balancing exercise as best I can on the information before me”.

The important questions that need to be answered

I have never liked the argument that “super injunctions are only for the rich”. This is only true because only the rich can afford go to a Court; it does not follow that because the “not rich” are effectively excluded from the injunction process, that there should be no injunctions at all. The “rich only” argument deflects attention from the central issue: whether there should be a balance between freedom of expression by the press and privacy of the individual.

So this is the first question to resolve: should there be a balance or should there be no balance? Go on make your choice! In answering this question, you should consider whether a balance is enforceable in the Internet age (I think it is enforceable but you may beg to differ). If you consider that a balance is not enforceable, then that is the end of the questioning: your job as a tabloid newspaper editor beckons.

If there is to be balance, consider then who should establish that balance? There are five choices: the press decide where the balance lies; the Courts decide where the balance lies; Parliament changes the law (which is then interpreted by the Courts) so a new law decide where the balance lies; the balance is established by a regulatory regime; or the person whose privacy is invaded makes the decision.

Quite clearly, if there is to be balance, then the idea of an accessible regulatory regime would probably be more flexible than the Courts. If you choose the Courts, then you are back to the current position, possibly with other balancing criteria that differ slightly from the ones currently identified by the Courts (see the six tests above). Any new criteria cannot diverge too much as the UK has to implement Articles 8 and 10 of the European Convention on Human Rights. In fact, I would go so far as to say that if you chose the Courts, you are choosing the status quo.

Obviously a choice for the press or the individual deciding alone where the balence should lie is not a balance. I also do not like the idea of politicians going anywhere near press freedom or privacy; this is because there are too many vested interests involved (e.g. Government’s interest in surveillance policy that invade privacy (for example, Passenger Name Record), most of the press support the Conservative Party; some MPs want to get even over the expenses scandal; Parliament is a weak institution with little effective power of scrutiny so that a balance in the Government’s interest will be the likely outcome).

If you choose a regulatory regime, the choice is between: (a) self regulation by the Press Complaints Commission (PCC) or (b) statutory regulation by a regulatory framework (e.g. the Information Commissioner or placing the PCC on a statutory footing).

So, now you have arrived at the end-point. Probably this is a strengthened but non-statutory PCC adjudicating on matters prior to publication in the same way as they adjudicate on matters after they have been published. This, in summary, is the conclusion of the Parliamentary Select Committee which explored this issue (see references).

What do I think will happen?

The Press are on the back foot because the hacking scandal; this will continue put them in a very poor light and will increase the pressure for more regulation. The super injunction has been used as a godsend to present distracting headlines: this argues that there is too much regulation already.

I also think the politicians already know that legislating in the area of privacy versus press freedom delivers real pain for no gain; look at the history from Calcutt in the 1990’s. That explains why the Section 55 custodial sentence has not been commenced after 4 years: locking up journalists simply does not get you friends in the press, especially at election time.

The result is that these politicians will set up a committee to cool down the debate, the committee will deliberate slowly, a boring report will follow and nothing will happen on the legislative front. I am sure you know the definition of a Committee: “a body where good ideas go and get buried”.

However, this more or less leaves the status quo and injunctions decided by the Courts. That is why those with wise heads in the media should begin to argue that the Press Complaints Commission should adjudicate in private on such injunction matters.

Far better a voluntary self regulatory solution before an imposed statutory solution.

This post originally appeared on Hawktalk the blog of Amberhawk Training Ltd (who deliver courses in data protection and freedom of information) and is reproduced with permission and thanks. Dr. Chris Pounder is a co-founder and director of Amberhawk.