Reference:  EWHC 1326 (QB)
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 23 May 2011
Summary: Privacy - Misuse of private information - Article 8, European Convention on Human Rights - Interim injunction - Blackmail - Anonymity - Public domain
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C was a married footballer with a family. On 14 April 2011 D1 published in The Sun newspaper the account of D2 (model Imogen Thomas) of a sexual relationship lasting around 6 months that she claimed to have had with C (C contended that he had only met her on 5 occasions). The publication did not name C, D1 having given an undertaking not to name him that expired at 4pm the following day.
C applied for an injunction restraining publication of his identity and of any further account, or purported account, of the relationship on 14 April 2011. A temporary injunction was granted the same day and renewed at the return date on 20 April. Between the 20 April and 16 May, the identity of C (but not any detail of the sexual relationship) had been disclosed on internet sites, particularly in the social media, and in foreign jurisdictions. Media organisations served with the 21 April order remained bound by it. In these circumstances The Sun applied to vary the order to permit identification of C, on the basis that any confidentiality in the identity had evaporated. The Sun also applied to be permitted to identify C to his wife. C applied for specific disclosure of emails between Sun journalists and third parties to try and determine whether the respondent’s employees were culpable for leaking the identity of C to social media publishers. C relied upon a former editor of the newspaper’s printed admission that he discloses the identity of anonymised privacy claimants to third parties.
Whether the injunction should be varied to permit identification of C and communication with C’s wife and whether C was entitled to specific disclosure of journalists’ emails
Dismissing the applications,
(1) An order for specific disclosure was unnecessary and disproportionate.
(2) The fact that the identity of C had become widely known and there had been widespread disobedience of the order was not a sufficient reason for the Court not to apply the law as enacted by Parliament and continue relief which had been properly granted. The order prohibiting identification was not an empty gesture for the reasons that Ms Thomas, the other party in the relationship, had further information she could disclose and because restrictions on the disclosure of information engaging Article 8 were less susceptible to a bright line analysis relating to erosion of confidentiality (compared to state secrets) The ability to restrain further intrusion into private and family life also differentiated personal privacy cases, and a distinction could be drawn between the effect on a claimant of information being available to online searchers and ‘wall to wall’ coverage in traditional media. The interest in maintaining anonymity was not outweighed by any interest favouring disclosure—the only outcome would be an unjustifiable media frenzy.
(3) The newspaper’s Article 10 rights were barely engaged in communicating the information to the wife, as such a communication did not represent its legitimate business.
A trenchant endorsement of the continued utility in the internet age of anonymised privacy injunctions to protect private and family life, in spite of the matter becoming an ‘open secret’. In the absence of a public interest justification for disclosing a claimant’s identity, mass disobedience of court orders on the internet and in other jurisdictions does not render an order to anonymise a claimant futile. A residual interest exists for protecting a claimant’s family from the enhanced intrusion generated by traditional media publicity and doorsteepping frenzy. A significant element of the Judge’s reasoning appears to be that new media is not as intrusive as traditional media, like the press and broadcasting, which may reflect the new media propensity to be informal, predominantly text-based and lacking in visual images, enquiry-led and, as a general rule, confined to younger generations.