The Court of Appeal yesterday discharged a super-injunction which had preventing reference to a privacy injunction obtained by Howard Donald of “Take That”. The decision, Ntuli v Donald ([2010] EWCA Civ 1276) has received widespread coverage in the media – with over 200 items picked up by “Google News”. Much of this coverage focused on the “super-injunction” and anonymity aspects of the case – although this occupied only 14 of the 59 paragraphs of the judgment.  Most of the judgment was devoted to consideration – and rejection – of the argument that the injunction should not have been granted at all.

Perhaps unsurprisingly, Mr Donald’s representatives emphasised his success in resisting the attempt to set the injunction aside.  An “Official Take That spokesperson” was quoted as saying

“Howard Donald successfully obtained an injunction earlier this year against a former girlfriend who threatened to sell a story about the intimate details of their relationship to the press. He did this to protect his children from this kind of story and because he believes that what took place in private should remain private and not be exploited for financial gain. His former girlfriend appealed this decision. Howard is pleased therefore that this morning the Court of Appeal has upheld the injunction he won .”

The “Sun” headlined the fact that the injunction was still in force: “Take That gags ex-lover” – but made it clear that Mr Donald had “lost his bid to stop reporting of the gagging order”.

But most of the media concentrated on the discharge of the superinjunction and of the anonymity order.  The “Guardian” – which had been granted permission to intervene in the case to make submissions on issues of general importance to the media – had the headline “Court lifts Howard Donald superinjunction“.  It noted that the “Take That star had been granted ban on reporting existence of injunction in case involving former girlfriend” and mentioned its own role in the case only in the last paragraph.

The “Daily Mail'” has a long piece on the case.  Its story also concentrated on the removal of the superinjunction, with the headline “Take That star Howard Donald’s legal fight to silence ex revealed as super-injunction lifted“.  The suggestion was that

“Donald’s attempts to gag the press are part of a growing trend, with scores of high-profile celebrities seeking super-injunctions to prevent details about their private lives being made public“.

The article went on to look at the wider implications of the decision.  After the obligatory reference to the John Terry case (and picture of Vanessa Perroncel), it quoted media lawyer Ambi Sitham as raising the point that:

“These cases mark a precedent and if we see judges refusing to grant anonymity orders with super-injunctions it raises the question as to how effective these injunctions are in maintaining the individual’s ‘privacy’, making them something of a toothless guard dog“.

Other privacy lawyers have raised the question of the effectiveness of Article 8 protections in cases where the identity of the claimant is disclosed in the media and his (or her) relationships are then subject to intense media interest.   We will look at this and other wider legal implications of the decision in a subsequent post.