Despite the protestations of Jamie Theakston that he had "done nothing wrong, I have not broken the law" when he was exposed by the Sunday People visiting a brothel, he was very quick to apply for an injunction in an attempt to protect, somewhat ironically, his alleged right to privacy. Theakston had little comment after the story had broken other than to say "to someone who values their privacy it is extremely embarrassing" and proceeded to apply for an injunction against the Sunday People to try to prevent publication on the grounds of breach of confidence and privacy.
Thankfully, he received short shrift from the judge who pointed out that "it cannot be considered confidential if you have sex with a prostitute in a brothel".
Although Theakston’s brief High Court appearance did not, therefore, bring us any closer to obtaining legal certainty in this evolving area of law, it does serve perhaps to show publishers that in this current legal climate, they need to be on their toes.
Faced with the threat of an injunction by an applicant seeking to rely on the rapidly evolving law of confidence and privacy, what can a publisher do in this uncertain climate to protect its position?
The best advice that can be given – before the Appeal Court sets out some guiding principles upon hearing the appeal by the People against the injunction preventing it publishing a story about a footballer’s extra-marital affairs – is to remember Section 12 of the Human Rights Act. All publishers are no doubt aware of this provision which was enacted specifically to make prior restraint more difficult in cases where the right to freedom of expression is a factor. Case law has shown that publishers can do no better than remain aware of the following:
lEnsure that the applicant has satisfied the Section 12 requirement that it has taken all practical steps to notify the respondent of the injunction application. This requirement should render the obtaining of ex parte injunctions less common and it should be one of the first lines of defence for a publisher faced with an out-of-hours application if it can be shown no reasonable attempts were made to contact it.
lKnow your subject – it is still helpful in defending confidence/privacy actions as the law currently stands to be able to show that the applicant has openly discussed similar matters in the past. The extent to which the material has or is about to become available to the public is also obviously relevant. Although it is not sufficient to say that arming yourself with previous examples of sordid material published about the applicant will successfully fend off an injunction, the Press Complaints Commission has strongly indicated that this is one of the factors that should be considered by the courts and until there are clear guidelines to the contrary, this remains one relatively effective tool in a publisher’s armour when defending the somewhat lame pleas for privacy of brothel-visiting celebrities.
Sarah Thomas is an assistant solicitor in media and entertainment at Charles Russell