Case Law: DFT v TFD – super injunctions, again – Mark Thomson

29 09 2010

On Monday 27 September 2010, Mrs Justice Sharp handed down an important judgment in a privacy case which had previously been the subject of a so-called “super injunction”.  The judgment in the case of  DFT v TFD ([2010] EWHC 2335 (QB)) concerned a blackmail case in which a woman was threatening to make public private and confidential information concerning a sexual relationship with the claimant unless she was paid very substantial sums.

On 9 September 2010, an injunction was granted restraining publication of the private information and the Judge also ordered anonymity and made an order prohibiting the reporting of the fact of the order had been made. This latter provision made the injunction a so-called “super-injunction”.  The reason for the anonymity was to prevent inevitable intrusions into the claimants private life  if no such provision was made.

The court also decided that there was cogent evidence of blackmail and therefore granted an order the prohibiting the publication of the fact of the order being made in order to stop the “tipping off” of the defendant prior to service.  On the return date, the Defendant did not oppose the continuation of the injunction.  The Claimant argued for continuation of the anonymity and of the super-injunction.  This was opposed in representations from the media made in a letter from Gill Phillips, the Director of Editorial Legal Services at the “Guardian”.

The Judge provided a short and helpful summary of the law relating to privacy injunctions ([13-19]).  She held that the claimant’s Article 8 rights were engaged and that the Article 10 rights of the defendant appeared to be extremely weak (“if they are engaged at all”) [23].  As a result, she had no doubt that the claimant was entitled to the continuation of the substantive order.

The Judge then considered a number of the “privacy provisions” sought by the claimant.  The order for anonymity was continued on the basis that if he was identified by name there was a serious risk that the information would emerge and the purpose of the order would be frustrated.  She considered that the blackmail element brought extremely serious public interest considerations into play. [35]

However, the Judge refused to continue the “super-injunction” element of the order.   She noted that such injunctions were a matter of public interest and controversy and that this gave rise to practical risks of “jigsaw identification” [36-37].   She considered the anonymity provisions and certain other provisions of the order were sufficient to protect the claimant’s privacy rights.

The discussion of the “super-injunction” part of the order is of considerable importance and deals with an issue which has not previously been considered in the case law.  The Judge accepted the claimant’s submission that there was a “substantial risk” of jigsaw indentification by the “drip drip” effects of partial revelations in different newspapers. As a result, she granted an order which

itself clearly delineates the information which should be released as to the fact of the order.  In those circumstances, the risk of jigsaw identification should be minimal” [39]

It appears that the judge was presented with compelling evidence of “jigsaw identification” in previous privacy injunction cases (see [29]).   The serious risk of this happening and, as a result, undermining the protection granted by the Court in privacy cases appears to lead to the need, at the very least,  for orders of the type made in this case – where the information that can be published is set out in the Judgment itself.  No doubt the Master of the Rolls Committee will consider this important judgment as well as the issue of jigsaw identification undermining the terms of an injunction.


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8 10 2010
Case Law: AMM v HXW – Privacy and Anonymity – Mark Thomson « Inforrm's Blog

[…] were a number of references in the Judgment (we have discussed the DFT case in a previous post here). The Judge said that although an  article in the “Daily Mail” (which was published […]

4 12 2012
Inforrm reaches 1,500 posts – the popular and the less visible « Inforrm's Blog

[…] Case Law: DFT v TFD – super injunctions, again – Mark Thomson […]

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