Two recent casesshow why privacy injunctions must be approached with care
The pendulum on privacy law continues to swing backwards and forwards. While the Leveson Inquiry focuses on the excesses of the tabloid press and calls for greater regulation, the failure of Ryan Giggs to reinstate his claim for damages against The Sun for breach of privacy along with the failure of Caroline Spelman MP’s son Jonathan to maintain his injunction against the Daily Star, show that this remains a complex area of law that those applying for privacy injunctions have to approach carefully.
Giggs had obtained his injunction in respect of what appeared to be a classic ’kiss and tell’ story in which there were also allegations of blackmail. However, his position was soon undermined. The anonymity order he had obtained proved to be pointless in the face of the social media campaign that quickly exposed him as ’CTB’ – the initials used in the proceedings.
It is important not to overemphasise the role that social media played in this case. Giggs’ main problem was that Imogen Thomas was not in fact going to kiss and tell, and there was evidence she was not seeking to blackmail him.
The court accepted that The Sun had published a story without identifying him and had not intended – on the basis that there was nothing further to disclose – to publish a follow-up story.
Perhaps because Giggs’ identity was by then known and because of the difficulties he was facing, he failed to comply with court orders and the claim was struck out. The judge held that because Giggs had been a party to two serious and intentional breaches of court rules and orders, he would not reinstate the claim, but because the action had been struck out and the naming of Giggs had not been as a result of anything News Group Newspapers (NGN) had done through court proceedings he stated that he did not think NGN could consider it had ’won’.
Spelman’s son lost his injunction because it was not considered to be necessary or proportionate to continue it.
Inevitably, the decision to apply for a privacy injunction has to be taken quickly, without all the available information, and for those representing claimants in such actions these two examples highlight the difficult balancing act that has to be achieved.
It is understood that Jonathan Spelman is facing disciplinary action by the Rugby Football Union so the prospects of the information remaining private were limited and there was also a public interest argument.
Whether Giggs failed to prosecute his privacy claim and comply with court rules because he had been named in social media and felt it was therefore a pointless task we do not know, but once it had been struck out – and given that the factual basis upon which he had initially obtained an injunction proved incorrect – it was going to be difficult to persuade a court to reinstate it. The judgment also included important guidelines indicating that in cases such as this the correct procedure and the time limits of the court must be followed.
The balance between the European Convention on Human Rights’ Article 8 (rights to privacy) and Article 10 (rights to free speech) remains a fine one.