These are troubling times for those of us interested in the rule of law, that is, the overwhelming majority of society. The right to privacy is, of course, enshrined in law in this country through the Human Rights Act and is, without doubt, one of the most important basic human rights, available to all of us. Much to the annoyance of the tabloid press, there is no caveat which means it does not apply to actors, musicians or sports stars. The protection is universal.
There was a steady evolution of the law in this area during the first decade of this century. The development of privacy protection – through the new tort of “misuse of private information” – meant that, for the first time, English law belatedly recognised a clear right to personal privacy. This development was foreseen at the time the Human Rights Bill was being debated in Parliament and was widely accepted as being a welcome and necessary development of the law. The individuals of interest to the tabloid press – whose rights had been casually ignored for decades – at last had a remedy.
The protection of individual’s rights against press intrusion threatened the business model of the tabloid press. The fact that the Human Rights Act lay behind this development led to visceral press hatred of that Act (although the press are, of course, happy to use it for their own benefit).
But as well as political campaigning against “human rights”, the tabloid press decided that it would take more direct action to protect its privacy invading “kiss and tell stories”. During 2011, the press had whipped up such a storm that they even had an MP prepared to defy parliamentary convention and the rule of law by naming the beneficiary of court-ordered privacy protection in the House of Commons.
The media hysteria – often directed against injunctions which raised no issues of public interest – led to the establishment of a committee under the Master of the Rolls to consider guidance to the courts on privacy injunctions. This was issued in August 2011 and “super-injunctions” (a term coined by the media) became much harder to come by. Anonymised parties and anonymised judgments became the norm. The risk of jigsaw identification, predictably, increased dramatically, as did the scope for mischief-making by the press.
The latest behaviour by certain sections of the tabloid press, however, takes matters to an entirely new level. It is completely contrary to the spirit, if not the letter, of injunctions which remain in force (and which they have never applied to set aside). They are, in essence, “laundering” injuncted kiss and tell stories through foreign publications and the internet. Now, half way through the 2010s, is this the new watermark?
Last month, it happened with the PJS v NGN injunction. This month, it is being done in relation to a 2011 injunction granted in NEJ v Wood, which prevented escort Helen Wood and the press from revealing the identity of her A-list actor client.
There are a two important points to note in respect of the NEJ case: first, the injunction in place is not one that the media has ever suggested was wrongly granted; and, secondly, as is clear from the judgment, it was never argued that there was any public interest in disclosure of the information in respect of which protection was sought.
In broad terms, this is how the “laundering” works: the newspaper and its “source” are frustrated that they cannot publish the kiss and tell story in England. An injunction is in place, usually because a balancing exercise has taken place between the claimant’s right to privacy and the newspaper / source’s freedom of expression, and a judge – better placed to determine these things than the tabloid’s editor – has determined (at least on an interim basis) that privacy should prevail. Again, this is usually because details of a person’s sex life is about as private a category of information as one can imagine. And there is no countervailing public interest in publication – an interest in salacious stories not being a recognised category of public interest.
The source, perhaps encouraged by agents or journalists, and annoyed by the lack of cash forthcoming for the story and the 15 minutes of fame that may come with it, seeks a new outlet for the story outside the jurisdiction, often in the US. At around the same time, details start to appear on social media sites. Such internet leaks often appear to derive from English journalists.
The English tabloid press then begins to encourage their readers to discover the identity of the claimant by searching online. Heavy hints are dropped by the newspaper as to the identity of the person whose privacy is being protected. At the same time, the tabloids mock the injunction that remains in place and the court and the judge who granted it.
When the time is right, the paper then applies to court to have the injunction lifted on the basis that dissemination of the identity of the parties and the details of the private information are so widely known that an injunction no longer serves its intended purpose and is restricting the paper’s freedom of expression.
With the Helen Wood case, the tabloid press spent last week dropping very large hints about the identity of the actor in question. There can be no doubt that this constituted a deliberate and conscious attempt to undermine the injunction in place.
For those who believe that the right to privacy is just as important as the right to freedom of expression, it is clear there is a need for action. For the tabloid press to behave in this manner is, perhaps, unsurprising given the revelations about their behaviour that have come out over recent years, but it calls into question a fundamental principle of the rule of law: in the end it is the courts that decide legal rights and wrongs and those decisions must be respected. Judges can properly be criticised, but if their decisions can be undermined by whoever can shout the loudest (usually the press) then we have anarchy, not law.
It may not be long before the tabloid press is placing full page advertisements like this: “BEEN THE SUBJECT OF A PRIVACY INJUNCTION? WANT TO HAVE ANOTHER GO AT SELLING YOUR STORY? COME TO US AND WE’LL TELL YOU HOW.”
With great power comes great responsibility. And the English tabloid press remain, perhaps, the most powerful collective in the land. When the most powerful ignore the rule of law, all that remains is the whims of a handful of newspaper owners and editors. It is, perhaps, now time for the Attorney-General to fulfil his constitutional role of upholding the rule of law by bringing proceedings for contempt of court. But will he be prepared to do so when the price is surely the wrath of the tabloid press? Given what the press were allowed to get away with during the “super-injunction spring” of 2011, it is with hope rather than expectation that we wait to see whether he will now act.
Tom Iverson, Partner, Michael Simkins LLP