The disclosure by Lord Hain in Parliament that Sir Philip Green was the individual who had obtained an anonymous privacy injunction against the Telegraph has once again cast doubt on the effectiveness of such injunctions against the press.
Whilst much of the debate is about the ethics of NDAs and how parliamentary privilege was used by Lord Hain to undermine three Court of Appeal judges, the incident also raises the question of why high-profile individuals continue to seek anonymity when seeking privacy injunctions against the press that are bound to be contested.
“Super-injunctions” back in the spotlight
This is not the first time we have seen anonymity orders blown open by the media. In May 2016, the Supreme Court resisted significant media, internet and political pressure to uphold an anonymous privacy injunction obtained by a well-known celebrity despite the fact that the identity of the individual had been published in the US and widely on the internet. Further back in the “Super-injunction Spring” of 2011, Ryan Giggs was famously outed by John Hemming in Parliament as the footballer who had obtained a so-called “super-injunction” concerning an affair. In that case the Court of Appeal upheld the anonymity despite the public disclosure in Parliament, in order to avoid the further intrusion that would have been caused by media coverage of the unmasking.
In each of the above cases, the high-profile claimants may have been left wondering whether they had been a little ambitious in seeking anonymity and whether their hefty legal bills were worth it, given the very public backlash that ensued once they had been named in public.
The reality is that if an anonymous injunction is to be enforced against the press, numerous people still have to know the identity of the parties – the lawyers, PR advisors, court staff, family members, editors and newspaper legal staff for a start. And people talk (although not in the legal profession of course). It only takes one person in the know (including the claimant) to break the confidentiality ring by telling the wrong person “in confidence” for the whole wall of secrecy to come crumbling down.
What’s the alternative?
But when it comes to the public interest test there is a big difference between on the one hand obtaining an anonymous injunction to restrain the mere fact of a relationship or allegation, and on the other hand restraining the publication of the intimate details of a relationship or allegation. The gory details may be what is of most interest to a large section of the public but there is a higher threshold of public interest required before intimate and intrusive details can be published – even if the claimant is a wealthy and high-profile businessman.
Seeking an injunction under a real name to protect intimate details will usually fare much better than an anonymous injunction that seeks a wide ambit of restraint. This is the case not just in obtaining the injunction withstanding appeal but also in enforcing it in the real world of internet rumour. Anonymous injunctions are red rags to the media bull and should be reserved for exceptional cases, such as where the identification of the claimant would interfere with a police investigation.
All of this is easy to say after the event. It is very tempting for celebrities when faced with potentially highly damaging stories to take the risk of being outed later down the line in exchange for the substantial potential upside of anonymity. But “the story they tried to ban” headline never looks great and usually adds a lot of fuel to the fire if that risk doesn’t pay off.
So whether the law is right or wrong and whether or not the ancient rules of Parliamentary privilege are consistent with the rule of law, the realities of human behaviour will often be just as important a consideration in these cases. People love to talk. If Lord Hain didn’t let the cat out of the bag, the chances are that someone in the US far away from English privacy laws and parliamentary rules would have done. And news travels fast on the internet.
Ashley Hurst is a partner and International Head of Digital Business and Alex Vakil a senior associate, at Osborne Clarke.
This post originally appeared on Osborne Clarke Insights and is reproduced with permission and thanks