Injunctions and privacy

On the law relating to privacy, I commend these articles by Hugh Tomlinson QC - clearly written and authoritative stuff.

The media has been almost incandescent this week over the Court of Appeal's decision in ETK v News Group Newspapers [2011] EWCA Civ 439.    The appellant, known only as ETK, was a married male working in the entertainment industry.  In late 2009 / early 2010 he had an affair with a married woman (referred to as X) who also worked in the entertainment industry.  ETK's wife discovered the affair in April 2010 but she and ETK decided to try to continue with their marriage.  They had two teenage children.   It appears that ETK discussed the matter with his employer and expressed the view that he would prefer in an ideal world not to have to see her (i.e. X) at all and that one or other should leave but both accepted that their working commitments did not then make that possible. They agreed to conduct themselves with due decorum and to continue to perform their duties in a professional way as in fact they did.  In December 2010, the employer terminated X's employment.  The News of the World wished
to publish the fact of the affair (but no details) and to allege that X's employment had been terminated because of it.  ETK applied for an interlocutory injunction to prevent the News of the World doing this and, it is important to note, X did not want any publicity and neither did ETK's wife.  In the High Court, Collins J refused the injunction but, on appeal, it was granted.  The Court of Appeal's judgment clearly shifts the balance in these privacy injunction cases so as to favour those with children who, according to the court, would suffer "playground ridicule" if there were to be publicity. In deciding that the interests of the children should be considered, the Court of Appeal used developments in children's rights arising in very different contexts such as the deportation case of ZH (Tanzania) v Home Secretary [2011] UKSC 4.  Whilst the likely adverse effect of publicity on the children may not be a "trump card" it will now be a card strengthening the hand of the applicant.

In these "privacy" cases, the judges have to "balance" Articles 8 and 10 of the European Convention on Human Rights.  Article 8 deals with respect for private and family life and Article 10 with Freedom of expression.  It is argued by some that the judges are setting the balance too much in favour of Article 8 rights.  Whether that is so or not, it is interesting to note that Parliament has already emphasized the importance of freedom of expression - Human Rights Act 1998 section 12(4).  It is the Human Rights Act which has spurred the development, over the last dozen years, of a right to privacy in English law.  At one time, the received wisdom was that the common law did not recognise such a right - see e.g. Malone v Metropolitan Police Commissioner 1979.  Until recently, Parliament appears to have been content to leave matters to the judiciary but there are now "rumblings" and David Cameron has said that he is "uneasy" about the use of injunctions.  There have been some controversial cases but whether Parliament will intervene remains to be seen.  A report by Lord Neuberger MR on so-called "superinjunctions" (which prohibit publication of the existence of the injunction) is due to be delivered after Easter.

The ETK case is discussed further on the One Brick Court website.  The UK Human Rights blog takes an interesting and more general look at privacy - see "Gagging for Privacy" (Adam Wagner).

A further case is that of OPQ v BJM [2011] EWHC 1059 (QB) in which Eady J issued a "contra mundum" injunction in a privacy case - informm's blog discusses this case in some detail.   Essentially there was what amounted to a blackmail situation arising from a threat to publish certain photographs.  It was generally thought that such injunctions only issued where there was threat to life and limb if details of a person were to be published.  However, Eady J issued it here since there was "no other means open to the court of fulfilling its obligation under the Human Rights Act.."  Contra mundum injunctions are discussed here in relation to protection of a person convicted of murder.

Addendum 26th April 2011:  The case of ZAM v CFW and TFW [2011]  EWHC 476 (QB) Tugendhat J - is also interesting.  The media labelled this a "superinjunction" case.  As I understand it, the term "superinjunction" has been invented recently to describe an injunction which prevents publication of the fact that an injunction exists.  (This was the type of injunction revealed in Parliamentary proceedings by Mr John Hemming MP in connection with the Trafigura case).  If that is the correct meaning of "superinjunction" (which is not actually a legal term) then the injunction in ZAM is not a superinjunction since we know, from the court's judgment, that it exists and we also know the reasons for it.  The ZAM case is discussed further at Head of Legal and at One Brick Court.



Addendum 20th May:  Lord Neuberger MR - report on Superinjunctions