At first glance it may seem that that the Court of Appeal’s decision to discharge the super-injunction obtained by Take That star, Howard Donald, is good news for the media and for campaigners for freedom of speech. The decision in Ntuli v Donald ( EWCA Civ 1276), handed down last Tuesday, might have the appearance of a victory for Howard Donald’s former girlfriend, Adakini N’tuli. She is now free to publish the fact of her relationship with Mr Donald and her feelings about being silenced.
The public judgment reveals that the Howard/N’tuli relationship spanned the period of two public relationships with the mothers of his children. It makes further revelations about the dispute between the former lovers. It even includes a text message sent by Ms N’tuli to Mr Donald – a tantalising if isolated detail. It is certainly a strong indicator that the judiciary is moving away from the position that has been prevalent for the last few years – the state of affairs usually illustrated by an anonymised claimant obtaining a super-injunction in a private hearing that would often be served on both anonymised defendant and the media preventing publication of information that is ‘private’.
Such private information often included extra-marital affairs and other reputation rockers that would undoubtedly risk damaging the reputation of the claimant (although the basis of the injunction would be to protect the already betrayed family who now wish to sort out these matters outside the glare of publicity). The newspapers have argued that the suppression of these stories is a breach of their right (and the defendant’s right) to freedom of speech. The claimants submit in derisory tones that stories of infidelity (and other such stuff) are deeply personal, and nobody’s business. These stories are, of course, big business – a currency of undeliverable tabloid splashes contained within the confidential schedules– the cutting room floor of news rooms populated by frustrated journalists and lawyers. Has that now all changed?
If the decision in the Donald case is to the shape of things to come, this presents the defendants with a new set of difficulties. In Ms N’tuli’s case, part of her story has been made public but she is prevented from addressing any criticism levelled at her, addressing any speculation or responding fully to press statements made that may be incorrect. Ironically her freedom of speech is more important now then it was back in March when the injunction was first served on her.
For example, the statement from the “Offical Take That Spokesperson” was, undoubtedly, spin. It told of the threat to sell “intimate” details, “exploited for financial gain” and of Howard fighting to “protect his children” from (very interestingly) “this kind of story”.
What kind of story?
The members of the general public who read that statement do not necessarily appreciate that “intimate” details are not necessarily descriptions of sex activity. Ms N’tuli undertook at a very early stage not to publish such details. Intimate details (and this is not specific to this case) may include anything from what the parties ate for breakfast and watched on t.v to what may or may not have been happenedduring the relationship. It includes the love story from the point of view of the defendant’s experience (minus the sex scenes). Mr Donald’s statement implies that this kind of story was an old school kiss’n’tell in order to protect himself from criticism for taking out the injunction in the first place. Ms N’tuli is portrayed as the villain of the piece – exploitative and greedy.
Exploitation is a harsh accusation to make. We will never know her views on this or whether she considered herself exploited within the relationship or why. To belittle her story as merely an attempt to make a fast buck by betraying her former lover is a cliché in itself. The assumptions made about her untold story are now assumptions made about her. Ms N’tuli cannot properly defend herself. She cannot say what she really intended to publish. ,
The decision in the Gray v UVW case (discussed on this blog a few weeks ago) was in many ways an elegant compromise in that it named the claimant not the defendant, and the judgement was neutral. Nobody knew the story, only that an injunction had been successfully obtained to prevent publication of private information. There was no speculation as to what the claimant might have been attempting to restrain.
However, in the Donald case the public judgment gives many details – devoid of any context. Ms N’tuli and future defendants should not be put in a position where they do not dare to resist a restrictive injunction served upon them through fear that they will simply be named, put under intense media scrutiny and then prevented from setting the record straight. A defendant should not have be a hero. Defendants should not be punished for having the audacity to attempt to publish something that is true.
So what of the future claimant? It is going to be harder to secure super – injunctions, anonymised injunctions or, it now seems, to keep an interim injunction in place unless the claimant’s case is proceedings at reasonable pace. The lifting of an injunction obtained, or the revelation of who the parties are can draw further attention to a story and pour fuel on a scandal. I would predict that until there is a clearer picture as to what on earth is going in the Queen’s Bench Division, it is not just defendants who are forced to be brave, but claimants too. If injunctions are to be de-anonymised then it is a lose/lose situation. It might be better to manage the client’s reputation and deal with a scandal through the libel courts.