The readers of this blog will be well aware of the current furore surrounding privacy injunctions and the one sided reporting they attract in the media.

Chief amongst the privacy bashers are the Sun and the Daily Mail with their headlines wailing against the use of so-called ‘super-injunctions’. The common theme being that the “rich and the famous” block up the Courts time with applications for injunctions which in turn “gag” the press and suppress their freedom of expression. It would appear however that the newspapers themselves may be to blame for a large amount of this wasted time and expense.

Last month alone there were seven judgments in relation to privacy injunctions. Three of these related to the now infamous case of CTB v News Group Newspapers Limited & Imogen Thomas and two related to Sir Fred Goodwin v News Group Newspapers Ltd. The two remaining judgments MJN v News Group Newspapers Ltd [2011] EWHC 1192 (QB)  and TSE & Anor v News Group Newspapers Ltd [2011] EWHC 1308 (QB) followed the theme of sexual relationships and individuals seeking to protect their privacy.

The first judgment came in the MJN case on 11 May 2011. In this case a married Premier league footballer sought to keep private his relationship with Kimberley West, an 18 year old lingerie model. His lawyers were notified by NGN of their intention to publish the story but refused to provide an undertaking not to publish. On being informed that the claimant was to seek an injunction, NGN responded by saying they would neither consent nor oppose such an application.

On hearing the Claimant’s application Mrs. Justice Sharp granted the injunction finding that the claimant’s article 8 rights were engaged and that “no public interest justification for the publication of the story has been advanced in argument by NGN or any other media organisation at any stage”. Despite this being the case and the claimant’s solicitors offering NGN the chance to provide them with undertakings prior to applying for an injunction and avoid the associated costs, the Sun went ahead and published the article under the heading ““MARRIED PREM STAR* GAGS SUN ON AFFAIR”, WITH A SUB-HEADING, “(*Yes, another one)”” and the following day ““MY FLING WITH PREM STAR” with the caption “The only version of this story that rat’s lawyers will let us print.” Disingenuous reporting to say the least.

The second judgment in CTB v News Group Newspapers Limited & Imogen Thomas on 19 May has already been discussed on this blog here and here.

The 23 May 2011 became somewhat of a watershed moment for privacy lawyers with no less than four judgments reported following the outing in Scotland, on Twitter and in Parliament of ‘CTB’.

The case of TSE & Anor v News Group Newspapers Ltd [2011] EWHC 1308 (QB) concerned another married footballer (league status unknown), the Sun and another adulterous relationship. This time the woman also wished to preserve her privacy and was also ‘named’ as a claimant.

The claimant’s representatives contacted the Sun having been informed of a story they were intending to publish. The Sun’s in-house legal representative informed the claimants’ advisers they intended to publish the story as the Sun “believed it was in the public interest to publish that the man was having an extra-marital affair because “we are exposing his hypocrisy”.” However this argument was not advanced before Sharp J at the original application, where NGN were represented by leading counsel, or at the return date where NGN were unrepresented.

In paragraph 23 of the judgement Mr Justice Tugendhat said

No evidence has been produced by NGN that the Claimants have misled the public, nor has it argued or attempted to demonstrate that there is any basis of upon which the court should “over-ride the normally paramount interest the child[ren]”. The editor of The Sun has not offered an explanation such as is referred to in para 3 of the paragraph headed Public Interest. It is a requirement of the law as well as of the PCC Code that the Court should have regard to the impact of publication on the  Claimants’ children (see, for example, CDE & FGH v MGN Limited [2010] EWHC 3308 (QB) at [7]).

Despite not resisting the claimants’ application for an injunction or advancing any form of defence, as in MJN, the Sun again went on to publish a disingenuous article entitled “New ace gags Sun on romps revalation”.

Tugendhat J stressed the importance of judgments being made public so as to forestall misinformed reporting as in this case and MJN and criticised NGN and its advisers for using such a tactic.  In paragraph 35 he states

There is no such reason why NGN should adopt this stance in this case, nor why NGN adopted it in the MJN case. NGN does not explain why it adopts it. It is the court’s experience that in the past NGN has submitted to injunctions which it could not defend, or settled cases, as it did in JIH. If parties choose to exercise their right neither to oppose nor consent to injunctions, it has the further effect of taking up the time of the court that would be available to other litigants.

Finally, whilst on the subject, Tugendhat J sought to clarify the commonly held view that ‘super-injunctions’ are only awarded to rich male footballers seeking to cover up their adulterous behaviour by listing a string of (leading) cases in which injunctions have been granted to women, children, gay and lesbian claimants for varying reasons.

Despite Tugendhat J’s concerns that the newspapers were causing the court’s time to be used unnecessarily NGN returned to Court on no less than 3 separate occasions to try and overturn injunctions on the basis of information that had been leaked into the public domain.

In CTB v News Group Newspapers Ltd & Anor [2011] EWHC 1326 (QB) Mr Justice Eady refused to overturn the injunction granted on the basis that speculation had increased on the internet and elsewhere. Eady J was clear that the injunction still served a purpose in protecting the claimant and his family stating

The principle, however, is clear. 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.[16]

This is not the first time that Eady J has highlighted the fact that he (and others) are merely following the current jurisprudence and that he is obliged to so until such time as the legislature decides to amend it.

Later that day NGN applied again to vary the Order following the naming in Parliament of CTB by Lib Dem MP John Hemming. Tugendhat J had little time for this application standing firm with his fellow Judge and agreeing with Eady J’s earlier ruling stating

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.” [3] CTB v News Group Newspapers Ltd & Anor [2011] EWHC 1334 (QB) .

Finally on that day a judgment was given in a similar application which had been made to lift an injunction held by Sir Fred Goodwin, Goodwin v News Group Newspapers Ltd [2011] EWHC 1309 (QB) following Sir Fred’s naming in the House of Lords by Lord Stoneham. Whilst Sir Fred did not oppose the variation to show he was the subject of the original injunction ( MNB v News Group Newspapers Ltd [2011] EWHC 528 (QB) ) he did not wish for the confidential information to be known.

Tugendhat J again provided a detailed judgment in an attempt to provide clarity to the misinformation that had previously been published concerning the original application. He first highlighted the fact NGN had asked Sharp J for permission to appeal her original ruling, and having been refused did not take this application further.

He then highlighted a number inaccuracies reported in the press not least of all by the Daily Telegraph in its article entitled “Lord Breaks Superinjunction on Fred Goodwin” (now sensibly removed) [9 – 11].  Well into his stride Tugendhat stated that

no case of public interest had been advanced before herself. A very weak one was advanced before Henriques J, which he rejected. By the time the matter came before Sharp J, the two ‘public interest’ arguments flagged up by NGN before the matter came to court at all, had been abandoned” [14] and that “there is no evidence before the court upon which the court could find that there is a public interest in the publication of a report imputing a breach of the code of conduct on the part of Sir Frederick Goodwin or the lady concerned” [18].

Tugendhat J also had little time for NGN’s argument that the identity of the woman in question should also be revealed especially as she had not been given any notice of their intention to apply for such a variation. This position is of course at odds with the newspapers unbridled disdain at claimants who would dare approach the courts for an injunction without first giving notice to them.

On 27 May an application was made by the lady in question to refer Associated Newspapers to the Attorney General; Goodwin v News Group Newspapers Ltd (Rev 1) [2011] EWHC 1341 (QB). This application was rejected by Tugendhat J as

in my judgment it would not assist the Attorney-General. The lady is free to refer the matter to the Attorney-General herself, and the Attorney-General is free to act of his own motion. This case has received extensive coverage in very many newspapers and other news media, and has been the subject of public judgments.” [20].

This concluded the ‘May Madness’ and a period in which the evolving law of privacy has never been more dominant. Much has been written about the rich and famous spending huge amounts of money in order to protect their privacy no doubt as a result of the newspapers displeasure in wasting thousand of pounds in seeking to discharge legitimate judgments as result of the recent spate of public defiance of the these orders. The judiciary has done well to stand up to defiance on a previously unimaginable scale.

From May’s judgments it would appear that claimants are seeking injunctions only as a result of the newspapers refusing to acknowledge that they have no defence (public interest or otherwise) to their actions thus forcing claimants to seek expensive protection from the courts. Indeed newspapers are only to happy to do so and then run stories along the lines of “Footballer in new sex gag shocker” as no doubt this will sell more papers than “Newspaper agrees undertakings in story of no public interest”.

Tim Lowles is an associate at Collyer Bristow.