In the increasingly heated debate about the state of English privacy law, the courts have frequently been accused of seeking to introduce a privacy law 'by the back door'. The decision in CTB v News Group Newspapers [2011] contains a robust judicial response to that criticism.

In his judgment, Mr Justice Eady – the judge who has so far borne the brunt of the media's ire – tackles head on the suggestion that the judges are overriding the democratic process by unilaterally creating a new privacy law. The judgment also touches on another important and controversial issue, namely the circumstances in which an injunction should be refused or restricted on the basis that the private material has already entered the public domain.

The facts

The facts of the case were relatively straightforward. The claimant was a married professional footballer with a family. In 2010 he had been involved in a short relationship with the second defendant, Imogen Thomas. On 14 April 2011 The Sun newspaper published Thomas's account of a sexual relationship with an unnamed professional footballer. After learning about the article, and after discovering that Thomas had engaged the services of the publicist Max Clifford, the claimant applied for an injunction restraining publication of his identity and of any further account of his relationship with Thomas. In support of this application the claimant provided a witness statement saying that Thomas had previously indicated that she was thinking of selling her story and had told the Claimant that she "needed" him to pay her £50,000 (a figure which later went up to £100,000).

On 14 April 2011 Eady granted an interim injunction in the terms sought by the claimant. At the return date on 20 April 2011 the court continued the injunction. In the judgment, Eady provides his reasons for those decisions.

The judgment

Eady began by noting that, while he could not come to a final conclusion at this stage, and while Thomas denied the allegations, the evidence "appeared strongly to suggest that the claimant was being blackmailed". In deciding whether or not to grant an injunction, the judge then proceeded to apply the two-stage test that has been developed by the courts in privacy cases. At the first stage he held that there could be "no doubt" that the claimant enjoyed a reasonable expectation of privacy in relation to his relationship with Thomas. The threatened publication concerned "conduct of an intimate and sexual nature" and there was no suggestion that the relationship had ever been conducted publicly. Both domestic law and Strasbourg jurisprudence made it clear that personal relationships of this type are protected by Article 8.

At the second stage the judge went on to consider whether there would be a legitimate public interest in the revelation of this particular information and whether it would contribute to "a debate of general interest". He concluded that it would not. In reaching this conclusion, the judge noted that the defendants' representatives had not even sought to argue that publication would serve the public interest in this case. Furthermore, in a passage that will find little favour with the tabloid media, Eady commented that:

"It will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another's right to publish what has been described in the House of Lords as "tittle-tattle about the activities of footballers' wives and girlfriends": see e.g. Jameel v Wall Street Journal Europe SPRL [2007]"

In this connection the judge also made reference to the recent decision of the European Court of Human Rights in Mosley v UK:

"It has recently been re-emphasised by the Court in Strasbourg that the reporting of 'tawdry allegations about an individual's private life' does not attract the robust protection under Article 10 afforded to more serious journalism. In such cases, 'freedom of expression requires a more narrow interpretation': Mosley v UK [2011]."

However, instead of arguing that publication was in the public interest, counsel for MGN had instead focused on the extent to which relevant material might already be in the public domain. This is also an important question, as Eady explained:

"There may well be, in any given case, room for argument as to what truly is or is not in the public domain; but the principle is clear, namely that the court will not attempt to prevent publication or discussion of material that is genuinely in the public domain since, where that is so, there will no longer be any confidentiality or privacy to protect."

In addressing this issue, Eady referred to Attorney-General v Guardian Newspapers [1990], where the House of Lords had drawn a distinction between state secrets and confidential information relating to an individual's private life. He observed that:

"It is more difficult to establish that confidentiality or a reasonable expectation of privacy has gone for all purposes, in the context of personal information, by reason of its having come to the attention of only certain categories of readers: see also R v Broadcasting Complaints Commission ex parte Granada TV [1995]."

Eady then explained that:

"It is not a black and white distinction between public and private in such circumstances, but rather a matter of looking at the particular facts and deciding whether, notwithstanding some publication, there remains a reasonable expectation of some privacy. It is regarded as a question of degree: a distinction has sometimes been drawn, for example, in respect of private information between that which has been published in the national media and that which is only available on a more limited scale… Each case has to be assessed on its own facts."

On the facts of the present case, Eady rejected the defendants' argument that there was nothing left in respect of which the claimant still had a reasonable expectation of privacy. For these reasons the claimant was therefore entitled to an injunction.

However, the judgment is of particular interest for the judge's response to media criticism about the way that the courts decide privacy cases. Eady began his analysis of the law by emphasising that the government had "always overtly acknowledged" that the European Convention on Human Rights required the courts to carry out a balancing exercise between competing Convention rights. The Human Rights Act meant that the judiciary were now "explicitly required" to take into account the Strasbourg case law when balancing the interests protected by Article 8 and Article 10. However, he complained that:

"Despite this long history, it has for several years been repeatedly claimed in media reports that courts are 'introducing a law of privacy by the back door'. Yet the principles have long been open to scrutiny. They are readily apparent from the terms of the Human Rights Act, and indeed from the content of the European Convention itself. Furthermore, they were clearly expounded seven years ago in two decisions of the House of Lords which was, of course, at that time the highest court in this jurisdiction: Campbell v MGN [2004] and Re S (A Child) [2005]."

Eady went on to point out that in the years since Campbell and Re S were decided, "the law has been loyally applied by the courts in a wide variety of circumstances and exhaustively explained in numerous appellate judgments." He cited four privacy cases – McKennitt v Ash [2008]; HRH Prince of Wales v Associated Newspapers [2008]; Lord Browne of Madingley v Associated Newspapers [2008]; and Murray v Express Newspapers [2009] – where the House of Lords had refused to grant permission to appeal against the judgment of the Court of Appeal. The fact that permission was refused in each case indicated that it was now widely recognised that the legal principles were firmly established. The appellate cases thus "establish beyond doubt the legal framework within which the courts are required to operate on applications of this kind".

Eady continued his defence of the courts by explaining that the majority of privacy cases are of the "kiss and tell" variety and often involve threats of blackmail:

"Blackmail is, of course, a crime and in that context the courts have long afforded anonymity to those targeted as a matter of public policy. That has not hitherto been questioned. In the modern context, against the background of the Human Rights Act, it is equally clear that the courts have an obligation to afford remedies to such individuals, to discourage blackmailers and to give some protection in respect of personal or private information where there is a threat of revelation."

He then concluded by emphasising that the courts had no choice but to apply the law as it currently stands:

"The courts will have to apply this methodology unless and until Parliament decides to legislate to different effect."

Comment

There are two particularly interesting aspects to the judgment in CTB. First, it provides a rare example of a direct judicial response to sustained media criticism. This is a welcome development. Whilst spirited debate is an essential part of a vibrant and healthy democracy, the privacy argument has been dominated by vituperative personal attacks and self-serving misrepresentations about the existing state of the law. In CTB Eady offers a clear and measured response to some of that misinformation.

The arguments made by Eady in his judgment are undoubtedly sound ones. Whatever one's views on the subject, there is simply no escaping the fact that the ECHR explicitly protects both the right to free expression and the right to privacy, and that the Human Rights Act requires the courts to strike a balance between those competing interests on a case-by-case basis. These basic facts discredit the notion that the judiciary are single-handedly reshaping the law of their own accord.

Secondly, there is an interesting discussion about the legal consequences of private information entering the public domain. This is a particularly topical issue, coming as it does in the week that an anonymous Twitter user purported to 'out' several celebrities who have supposedly taken out injunctions to prevent publication of information about their private lives. It has been suggested in some quarters that there is now "one law for the newspapers, another for everyone else". Of course, this is not actually true – anyone who breaks the terms of a privacy injunction commits a contempt of court, whether they are a national newspaper or an individual tweeter. However the courts do have to grapple with the porosity of the internet and the tendency for private information to find its way into the borderless world of cyberspace. Eady's judgment contains interesting food for thought about the effect of partial publication on a claimant's ability to obtain injunctive relief.

The clamour for reform of privacy law shows no sign of abating. This is an important topic worthy of serious and rational debate. Unfortunately the media's contribution to the discussion has frequently fallen short of this standard. While it is unlikely that a measured response by a single judge in a single case will transform the debate, many will hope that the judgment in CTB encourages a gradual shift towards more balanced and sensible territory.

Click here to read Eady's judgment in full.

Edward Craven is trainee barrister at Matrix Chambers. The International Forum for Responsible Media (Inforrm) was set up to debate issues of media responsibility. Click here to visit Inforrm's Blog, and click here to follow Inforrm on Twitter.