Comments
in the recent Court of Appeal decision in the long-running case of
Michael Douglas and Catherine Zeta Jones vs Hello! have raised concerns
that courts will in future be more likely to grant interim injunctions
to prevent publication of information about the private lives of
celebrities.
The decision, handed down on 18 May, reached the
conclusion that, in light of the law as it can now be seen, the
decision of the same court in November 2000 to lift an injunction
sought by the couple to prevent publication of unauthorised photographs
of their wedding was wrong and the injunction should in fact have been
upheld.
In making its comments the court had regard to the high
threshold necessary to achieve an interim injunction in light of
section 12(3) of the Human Rights Act 1998 (the “HRA”), which states
that in applications for injunctions against publishers, “no such
relief [affecting the European Convention right to freedom of
expression] is to be granted so as to restrain publication before trial
unless the court is satisfied that the applicant is likely to establish
that publication should not be allowed.”
The significant cases referred to were those of Campbell v MGN and von Hannover v Germany in the European Court of Human Rights.
In
Campbell, the House of Lords held by a majority of 3:2 that the paper
had gone beyond what was necessary to correct previous statements by
the model Naomi Campbell that she did not take illegal drugs. While
publication of the fact of her addiction and that she was receiving
treatment were justified as being in the public interest, publication
of the source of the therapy and details of it, together with
photographs of her leaving a therapy session, were not.
In von
Hannover, it was held that the intrusion into Princess Caroline of
Monaco’s private life by publishing photographs of her carrying out
various day-to-day activities outside of her residence would not be
justified because she did not fulfil a public function.
It was not enough to justify the invasion of her privacy that she had a public profile.
Many
commentators believe that if the comments of the Court of Appeal had
been made before the decisions set out below, injunctions in those
cases would have been granted: The story of Abbie Gibson, the former
nanny employed by David and Victoria Beckham, which contained
information about the couple – including contested allegations of David
Beckham’s infidelity and the state of the couple’s marriage – was not
injuncted by Mr Justice Langley following an application by the couple
on 23 April 2005.
The story of the former boyfriend of EastEnders
actress Jessie Wallace about her private life was not injuncted by Mr
Justice Smith.
In reaching decisions as to whether to grant or
lift an injunction against publication, the court must find the correct
balance between the freedom of expression of the publisher (and the
person whose account is intended to be published) enshrined in Article
10 of the European Convention and the right to privacy of the person
about whom the account is to be published enshrined in Article 8 of the
European Convention (both are given effect in the UK by the HRA). In
the light of the comments of the Court of Appeal it is difficult to
assess where the correct balance lies.
Niri Shanmuganathan and John Plant work for the law firm Taylor Wessing
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