The case against privacy injunctions

About Jonathan Lea

Jonathan is a specialist corporate and commercial solicitor who has over 11 years of experience at both large international City firms and smaller practices. For the last two years he has worked on a self-employed basis with a network of other freelance lawyers focused on entrepreneur-led businesses. If you'd like a competitive quote for any legal work please send an email to the address on the home page. You can also follow him on Twitter @jonathanlea

In my view these recent privacy injunctions, super ones or just plain vanilla, awarded to public figures serve no genuine purpose, make the people who defend them appear ridiculous, are anti-democratic, authoritarian, patronising and are manifestly contrary to freedom of information and expression.  In short, they make the UK look like a joke of a country.

Judges seem to be ruling that a right to privacy trumps the right to freedom of expression which is contrary to both the form and spirit of the European Convention on Human Rights which details what are supposed to be a set of principles – nowhere does it indicate that freedom of speech can be compromised in any way. Ignoring perhaps France, other European states that have also enacted the same human rights legislation have not developed such a privacy law as a result. At the heart of these injunctions seems to be the judiciary’s keenness to decide what should be in the ‘public interest’.  

How dare the state, whether it’s the government or the courts, tell me and others what is in our interest and determine what we are entitled to read or know about! There is no definitive way to determine what is in the public interest; it’s a completely subjective concept. Indeed, the fact that so many people want to read about the negative aspects of the private lives of public figures shows that their indiscretions are objectively in the public interest, especially when we would otherwise hold these people up as positive role models. It seems even more absurd when all public figures use their private lives to build their marketability, yet the courts are unlikely to rule against a celebrity publishing their wedding photos in Hello magazine. These injunctions appear to be a mechanism whereby, with the connivance of the courts, public figures who forego privacy when it suits them and in order to build their public persona, can pay money to hide inconvenient misdemeanors which would otherwise damage their brand.

The argument used by the few supporters of these injunctions that these privacy rulings are needed to protect the celebrity’s family seems completely defunct in that regardless of the injunction, whether through rumours or just checking the offending spouse’s phone, the wife or family of the person in question is highly likely to find out about the subject matter of the injunction. Indeed they might actually quite like to know the truth themselves.  If those applying for injunctions cared so much about their families they wouldn’t be having affairs with ex big brother tarts for six months in the first place. If such injunctions weren’t possible, the only harm that would be done would be that the immediate parties involved would have to suffer the natural consequences of their actions. Instead, the rumors and guessing games that the injunctions naturally lead to have the effect of dragging many other innocent and unsuspecting people into the arena which only spreads the longer people are unable to know the actual identity of the person who took the injunction.

It seems remarkably unjust that the identity of the applicant is protected by the courts, whereas Imogen Thomas can have her reputation trashed but not allowed to do or say anything to ameliorate her situation or to defend her name (whether this would improve things for her is another matter). Although in the case of Imogen Thomas no doubt she is also glad of the new Nuts and Zoo magazine shoots she’ll get as a result of all the extra publicity.

Another problematic issue with the injunctions is that they are a form of ‘justice’ only available to the rich who can afford the enormous sums involved. I can’t quite see my local county court entertaining the idea of granting an injunction to Jim Smith to stop the village gossip mongers from divulging salacious or scandalous details of his private life. The amount of these cases that the publicly funded courts are dealing with seems to be a complete waste of both their time and taxpayers’ money. The cretinous law firm representing the particular footballer (and others) should also be named and shamed, while the footballer in question will no doubt be booed every time he touches the ball in future matches if he continues his action against twitter. The advice he’s being given by his legal advisers seems to be the equivalent of them handing him a pistol and telling him to continue to shoot himself in the foot. I look forward to some interesting chants from the terraces next season!

Furthermore, twitter has shown that these injunctions are unworkable in a digital age where everyone is now a publisher. The democratic crowd can voice their unanimous disapproval knowing that there is no practical way that the state or the premiership footballer can prosecute or sue them.  The digital crowd also feel emboldened by the perceived injustice and dangerous precedent set by a law made up by a couple of senile unelected judges which would never be enacted by any democratic process.

Finally, it is timely that the ‘rutting chimpanzee’ former head of the IMF Dominique Strauss-Kahn should also be in the news. No doubt he would have applied for an injunction if he had  ‘tried it on’ (or whatever he is alleged to have done) with a chamber maid in a west London hotel. If he is proved to be a serial pest and guilty of the criminal offence he is tried for, then given the French media’s willingness to ‘respect his privacy’ over the years this is a clear example of what happens when public figures and their private lives are not freely held to account by the media.

 

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