Max Mosley’s Strasbourg misery dampened the spirits of pro-privacy activists after his bid to curb the media’s exposure of private affairs by imposing a pre-notification obligation was rejected by the European Court of Human Rights (“ECHR”) on the grounds that this would create a “chilling effect” on political reporting and investigative journalism.
The former Formula 1 chief has been criticised for asking too much of the courts, having already received an award in damages to the tune of £60,000 plus costs of £240,000 from the News of the World back in 2008. However, it was not all doom and gloom for Mosley as the ECHR candidly recognised that the newspaper had conducted itself in a way which was “open to severe criticism” by publishing a print story together with photographs and video footage procured through covert filming.
In contrast, the fortunes of those opposed to the media’s intrusion into the private lives of celebrities improved with yet another addition to Mr Justice Eady’s collection of controversial superinjunctions. In the case of CTB v News Group Newspapers Limited and Imogen Thomas [2011] EWHC 1232 (QB). Mr Justice Eady held that the Claimant, a married premiership footballer, was still entitled to “a reasonable expectation of privacy” after an account of his affair with Ms Thomas had been published in an article in The Sun which did not reveal his identity.
The case has undoubtedly intensified the public furore about how far Mr Justice Eady should be criticised for salvaging celebrities from their kiss and tell dilemmas through the emerging privacy law. The principle that no automatic priority is accorded to freedom of speech is being firmly held in place, and the protection afforded to “victims” will continue since the notion that disclosure of their identities serves the public interest will not be tolerated in the courts: interesting to the public perhaps; but, save in exceptional cases, not in the public interest.
The balance swung further in favour of privacy advocates through a judge’s explicit inclusion of Twitter and Facebook in an order in W (by her Litigation Friend, B) v M (an adult patient, by her Litigation Friend, the Official solicitor) and others [2011] EWHC 1197 (COP). The case concerned an “M”, an adult patient who had for several years been in a “minimally conscious state” caused by brain encephalitis, whose mother sought an order that those treating M could lawfully discontinue and withhold all life sustaining treatment. Mr Justice Baker, sitting in the Court of Protection, issued an injunction which, among other things, prevented members of the media from publishing any information which could identify anyone involved in the case, including an explicit ban on the publication of information on any social network or media including Twitter or Facebook.
The decision follows the recent exposure in a series of “tweets” of the names of celebrities allegedly embroiled in number of alleged superinjunctions, and is viewed by some as an encouraging step. However, doubts over the effectiveness of the inclusion of Twitter and Facebook in the order are warranted, particularly in view of the fact that both are US companies which makes enforcement difficult. Having said that, there was no stopping Mr Justice Eady’s latest footballer protégé from taking a shot at legal action against Twitter and its users after being named and shamed by tens of thousands of them. Twitter itself has, rather ironically, remained quiet although its General Counsel, Alexander Macgillivray, has confirmed that the social network will notify its users before disclosing their identities to UK authorities seeking to pursue them over alleged breaches of privacy injunctions.
Although the effectiveness of Mr Justice Baker’s decision may be questionable, and despite the fact that order was made in the context of medical treatment rather than bedroom antics it may nonetheless be indicative of the courts’ stance towards the use of superinjunctions.
If you would like any further information about the issues raised in the newsletter please contact Paul Herbert or any other member of Goodman Derrick LLP’s Media team on 0207 404 0606.
This guide is for general information only and should not be relied upon as providing specific legal advice.
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