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| Are privacy injunctions on the brink of a comeback? | Are privacy injunctions on the brink of a comeback? |
| (4 months later) | |
| A celebrity father is seeking to prevent tabloid newspapers printing details of a three-way sexual encounter in a case in front of the UK’s highest court. Is this why injunctions are back in the news? | A celebrity father is seeking to prevent tabloid newspapers printing details of a three-way sexual encounter in a case in front of the UK’s highest court. Is this why injunctions are back in the news? |
| Sort of. The case, which began in January when the Sun on Sunday tried to publish details of the threesome, is testing freedom of the press and privacy in the digital age. Lawyers for News UK, publisher of the Sun, argue that, because the celebrity has been identified outside the UK, British law is fighting King Canute-like against the tide of a web-based free press. Opponents argue that even celebrities have the right to a private life, and that lifting the injunction would release a flood of reporting. | Sort of. The case, which began in January when the Sun on Sunday tried to publish details of the threesome, is testing freedom of the press and privacy in the digital age. Lawyers for News UK, publisher of the Sun, argue that, because the celebrity has been identified outside the UK, British law is fighting King Canute-like against the tide of a web-based free press. Opponents argue that even celebrities have the right to a private life, and that lifting the injunction would release a flood of reporting. |
| Why haven’t we read much about injunctions recently? | Why haven’t we read much about injunctions recently? |
| The UK press argue that the industry has cleaned up its act in the wake of the phone-hacking scandal, which reached its peak in 2011 and prompted the Leveson inquiry. Media lawyers acting for celebrities argue that injunctions are coming back because the press is desperate to regain readers with kiss-and-tells, and has regained confidence following the end of the phone-hacking criminal trials. Hugh Tomlinson QC told the Guardian that he had seen an increase in injunctions applied for so far this year. According to the tables published in the most recent Civil Justice Statistics Quarterly Bulletin, there were three applications for privacy injunctions in 2015, and three applications in the past six months. | The UK press argue that the industry has cleaned up its act in the wake of the phone-hacking scandal, which reached its peak in 2011 and prompted the Leveson inquiry. Media lawyers acting for celebrities argue that injunctions are coming back because the press is desperate to regain readers with kiss-and-tells, and has regained confidence following the end of the phone-hacking criminal trials. Hugh Tomlinson QC told the Guardian that he had seen an increase in injunctions applied for so far this year. According to the tables published in the most recent Civil Justice Statistics Quarterly Bulletin, there were three applications for privacy injunctions in 2015, and three applications in the past six months. |
| So will superinjunctions come back in fashion? | So will superinjunctions come back in fashion? |
| Unlikely. Like double denim and fruit prints, superinjunctions were over by 2011 after a report led by senior judges recommended that the media could contest orders before they happen. Prior to this, individuals and, more worryingly, huge corporations, had sought to block any mention of an injunction, even its existence. The most egregious example of this was the attempt by Carter-Ruck lawyers to gag the Guardian from publishing any details of a report commissioned in 2006 by Trafigura into a toxic-dumping incident in Ivory Coast. The current case is an anonymised privacy injunction, which is why articles like this can even be written. | Unlikely. Like double denim and fruit prints, superinjunctions were over by 2011 after a report led by senior judges recommended that the media could contest orders before they happen. Prior to this, individuals and, more worryingly, huge corporations, had sought to block any mention of an injunction, even its existence. The most egregious example of this was the attempt by Carter-Ruck lawyers to gag the Guardian from publishing any details of a report commissioned in 2006 by Trafigura into a toxic-dumping incident in Ivory Coast. The current case is an anonymised privacy injunction, which is why articles like this can even be written. |
| What else is unusual in this case? | What else is unusual in this case? |
| A court originally granted the injunction on the grounds that naming the parents would harm their children. The judgment was condemned in the press, with the Sun pointing out that the celebrity had “courted publicity for years, regularly including his kids”. | A court originally granted the injunction on the grounds that naming the parents would harm their children. The judgment was condemned in the press, with the Sun pointing out that the celebrity had “courted publicity for years, regularly including his kids”. |
| How does the UK’s approach to this compare with other countries? | How does the UK’s approach to this compare with other countries? |
| The UK privacy laws offer a marked contrast to the US, where freedom of speech is enshrined in the constitution. Instead, the embedding of the European Convention on Human Rights into British law in 2000 created a right both to privacy, enforceable by the courts, as well as the right to freedom of speech. Parliament left judges to work out the details. Media lawyer Mark Stephens is among those who believe that this has led to “privacy tourism”, where famous people come to the UK to sue over publication. Pro-privacy campaigners argue that injunctions are a result of an overly aggressive and competitive tabloid press in the UK. | The UK privacy laws offer a marked contrast to the US, where freedom of speech is enshrined in the constitution. Instead, the embedding of the European Convention on Human Rights into British law in 2000 created a right both to privacy, enforceable by the courts, as well as the right to freedom of speech. Parliament left judges to work out the details. Media lawyer Mark Stephens is among those who believe that this has led to “privacy tourism”, where famous people come to the UK to sue over publication. Pro-privacy campaigners argue that injunctions are a result of an overly aggressive and competitive tabloid press in the UK. |
| Why do national boundaries matter now that global citizens can read anything they like on the internet? | Why do national boundaries matter now that global citizens can read anything they like on the internet? |
| This goes to the heart of the case, which must decide whether or not courts can enforce bans on publication when websites outside UK courts’ jurisdiction can be read in Britain. Once the celebrity was identified in a US publication, the Daily Mail’s front page screamed that the “Law is an ass”, with news vendors at JFK airport selling the publication of “the story you can’t read in the UK” for all those on their way to Heathrow. The celebrity has also been identified in an online blog and a Scottish paper, both outside the jurisdiction of English and Welsh law. The opposing argument is that allowing publication just because other media outlets have done so will encourage the phenomenon of “story laundering”, which lawyers use to describe the suspected spreading of a banned stories overseas by UK publications. | This goes to the heart of the case, which must decide whether or not courts can enforce bans on publication when websites outside UK courts’ jurisdiction can be read in Britain. Once the celebrity was identified in a US publication, the Daily Mail’s front page screamed that the “Law is an ass”, with news vendors at JFK airport selling the publication of “the story you can’t read in the UK” for all those on their way to Heathrow. The celebrity has also been identified in an online blog and a Scottish paper, both outside the jurisdiction of English and Welsh law. The opposing argument is that allowing publication just because other media outlets have done so will encourage the phenomenon of “story laundering”, which lawyers use to describe the suspected spreading of a banned stories overseas by UK publications. |
| Does it make a big difference which judge you get? | Does it make a big difference which judge you get? |
| Paul Dacre, editor of the Mail, thought so and used a highly unusual speech to accuse a leading high court judge of introducing privacy laws via the back door. “Justice David Eady, who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places,” he harrumphed. With Eady having retired in 2014, no one judge has dominated privacy hearings since. Interestingly, Lord Neuberger, the Master of the Rolls, who spearheaded the superinjunction committee, is now president of the supreme court. | Paul Dacre, editor of the Mail, thought so and used a highly unusual speech to accuse a leading high court judge of introducing privacy laws via the back door. “Justice David Eady, who has, again and again, under the privacy clause of the Human Rights Act, found against newspapers and their age-old freedom to expose the moral shortcomings of those in high places,” he harrumphed. With Eady having retired in 2014, no one judge has dominated privacy hearings since. Interestingly, Lord Neuberger, the Master of the Rolls, who spearheaded the superinjunction committee, is now president of the supreme court. |
| Are injunctions just for celebrities or can a normal person get one, too? | Are injunctions just for celebrities or can a normal person get one, too? |
| Anyone can apply for a privacy injunction, as long as they are rich enough, which usually means very rich. With average legal fees of £400 an hour, the first court hearing would cost up to £100,000, according to some experts. Stephens estimated that the current case would have cost the complainant about £500,000. “Only wealthy people can buy privacy,” he told the Guardian. Only men do so too, it seems. Superinjunctions were increasingly taken out by famous, super-rich men, such as Ryan Giggs and John Terry. Indeed, so common did such injunctions become that Ian Hislop sparked an understandable outrage when he expressed surprise that journalist Andrew Marr had sought an injunction. “I mean, usually it’s just footballers and slappers,” he said. | Anyone can apply for a privacy injunction, as long as they are rich enough, which usually means very rich. With average legal fees of £400 an hour, the first court hearing would cost up to £100,000, according to some experts. Stephens estimated that the current case would have cost the complainant about £500,000. “Only wealthy people can buy privacy,” he told the Guardian. Only men do so too, it seems. Superinjunctions were increasingly taken out by famous, super-rich men, such as Ryan Giggs and John Terry. Indeed, so common did such injunctions become that Ian Hislop sparked an understandable outrage when he expressed surprise that journalist Andrew Marr had sought an injunction. “I mean, usually it’s just footballers and slappers,” he said. |
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