Privacy injunctions – what’s the point?

Back in 2011, the country’s newspapers were awash with reports of privacy ‘super-injunctions’.  The furore reached its peak with the case of Ryan Giggs who successfully obtained and maintained an injunction preventing the publication of a story about his affair with Imogen Thomas when his identity was easily available on social media and had been published in newspapers overseas.  An injunction granted last week has put similar issues centre stage again.

This case, AMC v News Group, was brought by a famous sportsman and his wife and involved an application to prevent the publication of a kiss and tell story about the sportsman’s affair, a number of years ago, before the two were married.  From a purely legal point of view the case is fairly unremarkable: in any application for a privacy injunction the court has to carry out a delicate balancing exercise between a newspaper’s (and the source of the story’s) right to freedom of expression (enshrined in Article 10 of the European Convention on Human Rights) and the right to privacy (set out in Article 8 of the Convention).  The judge carried out this balancing exercise and in coming to her conclusions followed well-established legal principles.

What the decision has done though is once again raise the issue of whether this area of law has kept pace with modern technology.  Just as with the Giggs story four years ago it is not difficult to search the internet to find the names of the parties involved.  The question could be asked: have the couple concerned gained any benefit from their injunction at all?

It is tempting to write off privacy injunctions as a pointless waste of time.  After all, if their main purpose can be undermined so easily, the argument goes, surely they achieve nothing.  There is certainly some weight to that argument.  However, there is a counter-argument.  Privacy is all about intrusion and it could be said that there is a big difference between the naming of the people concerned on internet forums and chat-rooms, even if widespread, and the degree of intrusion of a full tabloid ‘splash’.  You do not have to go in search of the information a front cover story contains to see what it is and even in this day and age, front page newspaper stories like this are very prominent and result in a great deal of attention.  It is certainly the case that, even given the poor reputation for fact-checking of some of our tabloid newspapers, a story (particularly a kiss and tell) is given more credibility if it is published in a newspaper than if it appears only on social media sites and the like.  It’s worth noting too that even though the apparent identity of the parties concerned is available online there is still a big gap between the amount of detail which is public now and what would become public if the story was published.

In 2011, it took an MP to reveal Giggs’ identity in parliament to bring matters to a head.  It will be interesting to see how this case plays out over the next few weeks.

Phil Gorski

Phil Gorski

Phil Gorski
Commercial Dispute Resolution
0113 227 9318

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