Reference:  EWHC 1334 (QB)
Court: Queen's Bench Division
Judge: Tugendhat 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. On 16 May The Sun applied to vary the order to permit identification of C, on the basis that any confidentiality in the identity had disappeared amidst widespread communication of C’s name on the internet and in foreign jurisdictions.
Eady J declined to permit C to be identified. Between 16 May and 23 May, C’s identity became an open secret in England and Wales, was repeated tens of thousands of times on internet sites, and reported with fanfare in a Scottish newspaper. The Prime Minister admitted on national television that he knew C’s identity and saw the differentiation between traditional media and internet media’s ability to publish it as unfair. In the middle of the afternoon of 23 May, an MP dislosed C’s identity under the privilege of Parliament. C’s identity was instantly disclosed across dozens of news and media websites within the jurisdiction.
The Sun made a further application to vary the order of 21 April to permit disclosure of C’s identity.
Whether the order should be varied to permit identitifaction of C
Dismissing the application,
The modern law of privacy is not simply concerned with the bottling up of secrets but preventing intrusion into private and family life which includes harassment. The continutation of the order restricting identification of C was justified by the further intrusion that would be caused by representatives of ‘the print media’.
In spite of the fact that the genie was essentially out of the bottle the Court refused to vary the orders it had previously made, emphasising the intrusional rather than confidential element of the tort of misuse of private information as a judgment given by Eady J in the same case had done. The Judge may be taken to have provided an answer to the Prime Minister’s criticism that differentiating between publication on the internet and in mainstream media was unfair—taunts on websites by private individuals are less intrusive and violative of Article 8 than general media publicity.