Superinjunctivits and rule by secrecy-Andrew Marr makes the news as well as reporting on it

In the wake of the Government’s plans for the sweeping reform of libel law, the other side of high value celebrity litigation has come under the Media spotlight again this week after BBC reporter Andrew Marr was the most recent public figure to admit that he had obtained a “Superinjunction” in 2008 to protect his family’s privacy by suppressing reports of his affair with a fellow journalist.

Marr’s admission came in an interview with the Daily Mail, in which he said that he “did not come into journalism to go around gagging journalists”, and felt a “touch hypocritical”, before going on to describe himself as “embarrassed and uneasy about it” and referring to injunctions as “running out of control.”

His comments have been seized on by, among others, Ian Hislop of Private Eye, who challenged Marr’s injunction twice in Court. Hislop said yesterday that: “As a leading BBC interviewer who is asking politicians about failures in judgment, failures in their private lives, inconsistencies, it was pretty rank of him to have an injunction while working as an active journalist.”

In his defence, however, Marr said that he “had (his) own family to think about, and I believed this story was nobody else’s business. There is a case for privacy in a limited number of difficult situations, but then you have to move on. They shouldn’t be forever and a proper sense of proportion is required”.

Andrew Marr’s case is the latest in a string of superinjunctions that have made their way into the public eye over the course of the last few weeks – Twitter in particular has been flooded with rumours after glamour model and Celebrity Big Brother winner Imogen Thomas won the right in the High Court to protect the anonymity of a premier league footballer with whom she was alleged to have had an affair. Many members of the Twitterati already have a very good idea of who he is.

These cases, along with David Cameron’s recent public “unease” over Judges creating “a sort of privacy law whereas what ought to happen in a parliamentary democracy is Parliament, which you elect and put there, should decide how much protection do we want for individuals and how much freedom of the press and the rest of it” and last week’s decision by Mr. Justice Eady in OPQ v BJM that saw him issue a “Contra Mundum” injunction enforceable worldwide and in perpetuity to prevent the publication of ‘intimate photographs’ of a married public figure after a woman tried to sell them for a ‘large sum of money’ have reignited debate over how far the UK’s developing privacy law should be able to restrict freedom of the press.

There are, as always, two sides to this argument – on the one hand, celebrities are increasingly turning to the law of privacy rather than defamation to suppress negative coverage, severely limiting the freedom of the press and depriving the public of information about which they may feel they have a ‘right to know.’

On the other, the press are increasingly running stories which have nothing to do with ‘the public interest’ to fill column inches in an environment where the Press Complaints Commission is seen as largely powerless to take any real action to compensate a victim once a controversial story has been run. The recent “phone hacking” scandal and public apology from News International for their unlawful surveillance of several high-profile figures has shown how far the press may be willing to go to obtain a scoop.

Over the past decade, a number of (ironically) very high-profile cases involving the so-called ‘right to privacy’ have come before the court. The first was Douglas v Hello!, dealing with covert photography at the wedding of Catherine Zeta-Jones and Michael Douglas (who had struck an exclusive deal with OK! Magazine), and was the first hint that a ‘right to privacy’ could exist in English law.

Next came Naomi Campbell’s successful claim against the Mirror after the publication of details of her drug rehabilitation treatment and featuring Piers Morgan’s immortal quote: ‘This is a good day for lying, drug-abusing prima donnas who want to have their cake with the media and the right to then shamelessly guzzle it with their Cristal champagne.’ Whilst Campbell was only ultimately awarded £3500 in damages, her costs ran to over £1 million, which the Mirror was ordered to pay.

Privacy law reached its high watermark (so far) in the now-infamous battle between Max Mosley and the News of the World in 2008 over allegations of Mosley’s involvement in a ‘Nazi orgy’ and the leaking of a video of the event online. Mosley was successful, winning damages of around £60,000 and setting out the basic ‘road map’ to the new approach to privacy law following the coming into force of the Human Rights Act in 2000.

The Human Rights Act brought the European Convention on Human Rights into English law and requires the court to take its provisions into account wherever possible. In privacy cases, the court must consider whether or not there was a ‘reasonable expectation of privacy’ in the information in question which can be protected by the Claimant’s Article 8 right to respect for private and family life (dependent in many cases upon whether or not the Claimant courted publicity) and then perform a ‘balancing act’ with the Press’ Article 10 right to freedom of expression.

The most important consideration in this balancing act is usually whether or not the information in question can be justifiably disclosed in the public interest. This does not cover information which is simply ‘interesting to the public’ and in Mosley’s case Justice Eady made the point that a publication which reveals sensitive information for the sake of ‘titillation’ or satisfying public curiosity can never be justified. In his opinion, ‘the sex life of any individual is essentially their own business.’

Even when freedom of expression sees the balancing act come down in the press’ favour, for example to expose illegal activity, to avoid the public being misled or to contribute to a genuine public debate, his will not allow the publication of ‘every gory detail’ and in particular, stories involving the sex lives of those in the public eye will normally be much harder to justify.

Nevertheless, the start of 2010 saw then-England captain John Terry at the centre of the privacy law debate after obtaining a ‘superinjunction’ banning any reporting of his alleged extramarital affair with lingerie model Vanessa Perroncel as well as any reference to the fact that the injunction itself even existed. The decision in Terry’s case came amidst increasing criticism of what was described as a ‘back door privacy law,’ and the ‘superinjunction’ was overturned after Mr. Justice Tugendhat found it to be unnecessary – the information which it covered was already relatively widely known within the sport, and in his opinion, Terry applied for the injunction more to protect his commercial interests and sponsorship deals rather than his private life.

If a claimant becomes aware of impending negative press attention and has a very strong case in either defamation or privacy against the publisher for which an award of damages would never truly compensate the claimant after the fact, then an, injunction may well be the only option. They are not easy to obtain, ‘superinjunctions’ even less so, and are only granted in cases where allowing the publication to go ahead will cause more harm to the claimant than restraining it would do to the newspaper.

The idea of the “superinjunction” is nothing new, even though they have only really come to prominence over the last few years. They are granted in a very small number of cases where a pre-trial injunction has already been ordered by the Court to restrain the publication of private information before the trial of a case A normal inunctions becomes “super” here a further injunction is granted under which even the existence of the injunction itself is kept secret to avoid defeating the whole point of the claim in question, which is to keep the information in dispute private.

Even then, however, an injunction or ‘superinjunction’ may never truly kill a story. In December 2009, Tiger Woods obtained an injunction against the reporting of further details of his private life being disclosed in the British press in the wake of his very public fall from grace. However, much of the information and accusations in question were already available on a number of US websites accessible from the UK, leaving many commentators wondering what the point was.

Similar points have been made in relation to the OPQ Case – an injunction was made which is enforceable against the entire world and in perpetuity. This kind of order is at the absolute extremity of the Court’s jurisdiction and was granted on the basis that publication of the information protected by the order could have a very serious effect on the mental health of the Claimant and his family.

In the world of real-time commentary through social media, injunctions may be very easily undermined by the information to which they relate already being in the public domain in one form or another, as commodities broker Trafigura, Take That star Howard Donald, golfer Colin Montgomerie and Imogen Thomas have found out over the course of the last 18 months. It was for this reason that the BBC’s attempt to keep the identity of the Stig secret through an injunction failed – his real name was being widely referred to on the internet and in accounts filed at Companies House.

Add to this the fact damages in privacy claims have so far been fairly limited – Mosley only received £60,000 – and the press may believe that running a story is worth the commercial risk against a rise in circulation, especially when the Press Complaints Commission is seen to be ineffective and unable to provide any remedy to complainants at a level anywhere near what can be granted by a court.

However, even if that were the case, it’s important to remember that costs in privacy cases tend to be extremely high and the risk of having to pay a claimant’s costs if successful can be enough to deter publication.

Practically speaking, the most obvious advice to anyone in the public eye is to choose your friends carefully and be selective as to who you trust. Once a story becomes public or leaks online it is extremely difficult and costly to put the genie back in the bottle, and damage to both reputation and private life can be almost impossible to repair.

The sad fact is that sometimes obtaining an injunction to protect your privacy will be the only option. In the social media age memories are longer and attention is more focused. If you do need to and can take action, then you will need to do so quickly and hopefully before the information which you need to keep private becomes very interesting to an increasingly global public.

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