Fleet Street reporters and lawyers recoiled this week at the unpleasant smell of the privacy injunction, released from years in mothballs. At the same time claimants and their lawyers were inhaling the sweet smell of springtime success in the guise of PJS v News Group Newspapers Ltd.
Does the judicial weather herald warmer climes for those wishing to protect privacy, and a harsher climate for invasive journalism?
The privacy injunction is without doubt a Marmite issue. Me? I love Marmite. But injunctions have been noticeably absent since the high-water mark of 2011 when, if you believed the media moaning, the injunction was the must-have celebrity accessory.
It is true that so-called super injunctions were unpopular; the very concept of a triple-binding ban that prevented reporting of the private information, the identity of the parties, and even the ban itself, was too much for many to stomach. So this relatively harmless but controversial creature was clubbed to death by the media like a hapless baby seal. But its slightly less controversial cousin, the privacy injunction – still pretty super for the claimant who obtains it – has been given mouth-to-mouth resuscitation by the Court of Appeal this week.
The fact of the PJS injunction is public knowledge, as is that the claimant and his spouse are well-known in the entertainment business and that the private information is the claimant’s extramarital sexual activities – in particular that, some years ago, he had a “three-way” with parties who later kissed and told The Sun on Sunday newspaper.
In injunction applications the courts must consider whether the claimant has a reasonable expectation of privacy. Some of us like to swing naked from the chandeliers; some enjoy the dangers of a swingers’ party; others swing both ways. But however we do it, and with whom, our sexual antics fall firmly into the protective arms of Article 8 of the European Convention on Human Rights, guaranteeing the right to respect for family and private life.
Should the Article 10 right to free speech shoulder in, as it sought to do here, the court must conduct a balancing exercise. The Court of Appeal dismissed the paper’s attempt to correct the “false image” of a committed, loving relationship portrayed by the claimant. That the claimant “is allowed to have occasional sexual encounters with others” did not mean that image was not “an accurate one” the court held.
Because the balance tipped firmly in favour of article 8, the impact of an anticipated media storm and potential short-term playground harassment of the claimant’s young children secured the injunction.
Non-disclosure orders of this nature are not a get-out-of-jail-free card for the wealthy and morally suspect. They are a necessary protective measure in an age where our private lives are constantly under attack from all sides. You may like or loathe the Marmite privacy injunction – but if it were you in the frame, you’d be sure to agree that it is good for you.
Amber Melville-Brown is a partner and head of the media and reputation department at Withers, an international law firm based in London
This article was first published in The Brief, the daily legal affairs bulletin from The Times‘ – which can be obtained via the following link – Register for free‘.
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