The decision of Mr Justice Eady CTB v News Group Newspapers and Imogen Thomas [2011] EWHC 1232 (QB) has been widely discussed in the media (and was the subject of a case comment on this blog).  The press has concentrated on Ms Thomas’ “anger” at the decison but there is another aspect of the case of more general interest.  Reading between the lines, it would appear that Mr Justice Eady has used his judgment as a means of clarifying a number of recent criticisms made against the judiciary (and him in particular by some) by the press as to the abuse of “super-injunctions” and their effect on the freedom of the press.

It was well known through a number of newspaper reports that Ms Thomas, a former Big Brother contestant and now ‘glamour model’, had been the subject of an injunction brought by a “top Premier League footballer”.  There was much speculation as to the identity of the footballer in question on Twitter and elsewhere.

The details, briefly, were that the Claimant had obtained an undertaking that his name would not appear in a Sun article concerning an alleged relationship with Ms Thomas. The article appeared and the Claimant was not named. In the meantime the Claimant, a married man with a family, made an application for an injunction to prevent any further details of their alleged relationship from being published.

The Claimant’s evidence before the Court was that he had met Ms Thomas on only three occasions prior to meeting again, at her request in April of this year. The purpose of the April meeting was to discuss her request for £50,000. A few days later they met again, for the fifth time, at which point Ms Thomas “made it clear she was looking for £100,000”; for what we do not know. Eady J concluded these April meetings were set up in order that the newspaper could take ‘revealing’ pictures of their meeting to add weight and colour to any subsequent story. This version of events, unreported in any newspaper, is at odds with Ms Thomas’ or the newspapers claims of a six month affair where the Claimant was “romping with a busty Big Brother babe.” No evidence was put before the Court by Ms Thomas or the newspaper to contradict the version of events put forward by the Claimant.

Having followed the now familiar “new methodology” Eady J concluded that the Claimant’s Article 8 rights outweighed the Defendants’ Article 10 rights.

In many ways this can be seen as just another judgment from the Court concerning a ‘kiss and tell’ story. However reading more closely it is clear that Eady J has used the judgment to clarify a number of issues for the newspapers which no doubt will not appear in the reporting of this case.

Eady J highlights the comments in 1997 of Lord Irvine, the then Lord Chancellor; “he (Lord Irvine) said any privacy law developed by judges following the enactment would be a better law because they would have to balance and have regard to both Article 8 and Article 10 (as indeed has been happening over the last decade).” [19]

He goes on to respond to allegations that the “courts are “introducing a law of privacy by the back door”.” [20-21] making it clear that a number of ‘privacy’ decisions were upheld by the Court of Appeal and House of Lords. This he says clearly evidences a right to privacy in England and Wales.

In case the press were unclear Eady J states that there is no “automatic priority accorded to freedom of speech” and that the competing values must be “weighed by reference to the individual set of circumstances.” Perhaps most tellingly he notes

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 e.g. Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 at [147]. 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. No. 48009/08), 10 May 2011, BAILII: [2011] ECHR 774, at [114].” [33]

Eady J appears to have used this particular story, upon which there has been a great deal of commentary, to remind the popular press that “tittle-tattle” and “tawdry allegations” do not amount to the public interest upon which freedom of expression is based and that the judiciary is only acting in the way in which Parliament intended when it passed the Human Rights Act.

As Eady J concludes “The Courts will have to apply this methodology unless and until Parliament decides to legislate to different effect”[36] .

Tim Lowles is an associate at Collyer Bristow.