Privacy, the public interest and "a woman called Imogen Thomas"

The significance of the <em>CTB v News Group</em> injunction.

The first sentence of yesterday's privacy ruling by Sir David Eady in CTB v News Group Newspapers made it clear which way the rest of the judgment was going to go.

While the others who were to be named in the judgment were accorded the usual judicial courtesy of being introduced as Mr This or Ms That, no such respect was accorded to Ms Imogen Thomas, the second defendant. Instead, she is introduced with the dismissive "a woman called Imogen Thomas".

But worse was to come for Ms Thomas. For, even though there had been no cross-examination of the claimant's evidence, and even though her lawyer stressed that she denied asking the claimant for any money (see paragraph 17), Mr Justice Eady said it "appeared strongly" that Ms Thomas was blackmailing the claimant (paragraph 9).

This was a remarkable observation, not least because it was a suggestion of criminal liability. Not even the claimant's lawyers had made the allegation against her.

Today, rival tabloid newspapers to the newspaper defendant have splashed on this "Blackmail" point with photographs of Ms Thomas. Her reputation appears to have been questioned by our most famous libel judge on the basis of untested -- and denied -- evidence. Even by itself, this is an extraordinary development.

So why was it done? Why did Mr Justice Eady use the absolute privilege of a judicial statement to make such an observation on a defendant in a case before him? Well, partly he did so because he could. The evidence of the claimant seems to have been detailed and compelling, and it appears to have been based in part on text messages. Although Ms Thomas appears to have made a bare denial, she did not submit evidence to controvert the claimant's evidence. On the balance of the evidence placed before him, it was entirely open to Mr Justice Eady to form the view he did for the purpose of the interim injunction until trial.

However, more importantly, such a finding by the court provided part of the public interest in maintaining the injunction. The private lives of the claimant and his family were engaged; and so any interference with this right had to be in the public interest.

It was not enough to assert a right to free expression. In cases such as this, the court has to balance the public interest in freedom of expression against the public interest in the privacy of individuals. Here, the court found that, on the basis of the (untested but not uncontroverted) evidence of Ms Thomas's conduct, and on other evidence, that there was no public interest in publication of details of the claimant's private life. Instead, the public interest was in ordering that the private information should not be published and that the claimant's name not be made public.

This whole exercise is perhaps artificial: the widely-suggested claimant in this action is merely a couple of mouse clicks away. But, as paragraphs 27 and 28 of the judgment makes clear, the fact that some information is supposedly in the public domain does not mean that the parties to whom the court order is addressed can escape. This creates the rather unhappy consequence for the newspaper defendant of carrying the legal costs of fighting the case, while not commercially benefiting from the "kiss and tell story".

This and other cases are steadily making such traditional "kiss and tell stories" more difficult and costly. This is not necessarily a bad thing; if there is no public interest with an interference with someone's private life, then it is hard to justify the press intrusion and public humiliation. Indeed, a respect for personal privacy and an avoidance of humiliation are marks of a civilised society. And, in this case, the newspaper did not even try to argue there was a public interest.

Supporters of privacy law will emphasise that, unlike libel, the "public interest" is built into the DNA of privacy law. There should never be any privacy injunction if the public interest in publication outweighs the need to respect privacy. The lack of a public interest defence that has long marred libel law should thereby not be a problem with privacy law.

That said, the future for privacy law is uncertain. The courts do not want their orders to be futile, and so widespread internet publication of personal details may mean that injunctions are not granted too readily. The tabloid press may convince politicians that there should be new privacy legislation that is not so focused on injunctions (though the "phone-hacking" scandal shows how little the tabloids care for general statutory protections).

There is currently a battle for primacy in Fleet Street over the jurisdiction of the High Court and the freedom of the press to do what it likes with private information. It is not certain who, if anyone, will win this particular battle: not all conflicts have a tidy resolution. But in the meantime, the commercial basis of the traditional "kiss and tell story" will need to be reassessed, and it is difficult to see why that is a bad thing.

 

David Allen Green is legal correspondent of the New Statesman and a media lawyer.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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PMQs review: Theresa May shows how her confidence has grown

After her Brexit speech, the PM declared of Jeremy Corbyn: "I've got a plan - he doesn't have a clue". 

The woman derided as “Theresa Maybe” believes she has neutralised that charge. Following her Brexit speech, Theresa May cut a far more confident figure at today's PMQs. Jeremy Corbyn inevitably devoted all six of his questions to Europe but failed to land a definitive blow.

He began by denouncing May for “sidelining parliament” at the very moment the UK was supposedly reclaiming sovereignty (though he yesterday praised her for guaranteeing MPs would get a vote). “It’s not so much the Iron Lady as the irony lady,” he quipped. But May, who has sometimes faltered against Corbyn, had a ready retort. The Labour leader, she noted, had denounced the government for planning to leave the single market while simultaneously seeking “access” to it. Yet “access”, she went on, was precisely what Corbyn had demanded (seemingly having confused it with full membership). "I've got a plan - he doesn't have a clue,” she declared.

When Corbyn recalled May’s economic warnings during the referendum (“Does she now disagree with herself?”), the PM was able to reply: “I said if we voted to leave the EU the sky would not fall in and look at what has happened to our economic situation since we voted to leave the EU”.

Corbyn’s subsequent question on whether May would pay for single market access was less wounding than it might have been because she has consistently refused to rule out budget contributions (though yesterday emphasised that the days of “vast” payments were over).

When the Labour leader ended by rightly hailing the contribution immigrants made to public services (“The real pressure on public services comes from a government that slashed billions”), May took full opportunity of the chance to have the last word, launching a full-frontal attack on his leadership and a defence of hers. “There is indeed a difference - when I look at the issue of Brexit or any other issues like the NHS or social care, I consider the issue, I set out my plan and I stick to it. It's called leadership, he should try it some time.”

For May, life will soon get harder. Once Article 50 is triggered, it is the EU 27, not the UK, that will take back control (the withdrawal agreement must be approved by at least 72 per cent of member states). With MPs now guaranteed a vote on the final outcome, parliament will also reassert itself. But for now, May can reflect with satisfaction on her strengthened position.

George Eaton is political editor of the New Statesman.