Rise of the privacy injunction: Score draw between Article 8 and Article 10

By Ryan Mowat, Dispute Resolution Partner and Specialist in Media Law at Kingsley Napley LLP

For anyone closely following how privacy law has developed in England and Wales, the recent increase in applications for privacy injunctions should come as no great surprise. Since the Human Rights Act 1998, the courts have been required to conduct a delicate balancing act between two conflicting principles. Article 10 of the European Convention on Human Rights protects the right to freedom of expression; Article 8 gives the individual his or her right to a private life. The Naomi Campbell case was probably the catalyst and thereafter judges have continually been developing this area of law within the framework given to them.

The cases involving extra marital affairs have probably been the most high profile and in more recent years ‘super injunctions’ have been thrust into the spotlight. More and more we are also seeing privacy law coming into play in connection with photographs and images which are more damaging than the article or story itself.

There is a perception in the public that celebrities are getting it all their own way with privacy injunctions in this country but that is not correct. In my view, the judiciary have struck a reasonably fair balance so far. Ultimately, if the individual has a reasonable expectation that material is private and it is not in the public interest for it to be published then privacy injunctions will continue to be granted, particularly where there is personal intrusion involved.

The media expected the John Terry case to open more doors for press freedom but that has not really materialised. Only recently Mr Justice Tugendhat ruled that the names of eight people who took out gagging orders against News International last year should remain private. I would therefore say that it is more or less a score draw at the moment between the individual right of privacy and the media’s right to freedom of expression. Had Max Mosley not failed in his case before the European Court of Human Rights in Strasbourg last year, we would have seen even greater control on press freedom, specifically an obligation on the media to give prior notice before publishing a story so as to provide the individual with time to apply for an injunction.

The rise in applications for injunctions signifies that the waters of privacy law are continually being tested. Nevertheless, there are a number of factors that may keep future numbers of actions in check.

Firstly, John Terry’s case brought into focus the broad way that a court might look into the question of whether a story is in the public interest and the reason why the celebrity is seeking to have their privacy maintained. It was deemed by the court that Terry was more concerned about protecting his reputation with sponsors rather than protecting his private and family life. In my view, this represented a common sense approach by the court and may act as a deterrent to other celebrities in applying for privacy injunctions. Likewise, John Terry, Rio Ferdinand and Steve McLaren have all suffered in privacy cases because, as former England captains (Terry, Ferdinand) and manager (McLaren), they are perceived to be role models, and therefore enjoy a lower expectation of privacy than the average person on the street.

Secondly, for those injunctions which are granted, their effectiveness in the technology age is under scrutiny. The Ryan Giggs case shows that even if a privacy injunction is granted the celebrity may still be vulnerable when there are leaks, particularly with the power of the internet and twitter. Increasingly, time is spent by lawyers dealing with the internet service providers in order to seek to prevent the publication and distribution of material on the web, but with contained success.

Thirdly, what the statistics do not show is that the lawyers are often involved very early in privacy cases. Their role is to protect a client's right to privacy by liaising with PR companies and communicating with the third party threatening publication. This reputation management work is regularly carried out under the umbrella of privacy law, where the material is probably true and therefore not libellous. Where this direct approach is used, both sides can save time and money if a dispute is resolved without recourse to the courts. The recent statistics will not reflect this practical reality.