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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Xenophobic graffiti at a London Polish centre is a dark sign of post-Brexit Britain

The centre's chairwoman says an incident of this kind has never happened before, and police are treating it as a hate crime. 

Early on Sunday morning, staff arriving at the Polish Social and Cultural (POSK) centre in west London's leafy Ravenscourt Park were met with a nasty shock: a xenophobic obscenity smeared across the front of the building in bright yellow paint. 

“It was a standard, unpleasant way of saying ‘go away’ – I'll leave that to your interpretation,” Joanna Mludzinska, chairwoman of the centre, says the next morning as news crews buzz around the centre’s foyer. The message was cleaned off as soon as the staff took photo evidence – “we didn’t want people to walk down and be confronted by it” – but the sting of an unprecedented attack on the centre hasn’t abated.

“Nothing like this has ever happened before,” Mludzinska tells me, shaking her head. “Never.”

The news comes as part of a wash of social media posts and police reports of xenophobic and racist attacks since Friday’s referendum result. It’s of course difficult to pin down the motivation for specific acts, but many of these reports feature Brits telling others to “leave” or “get out” – which strongly implies that they are linked to the public's decision on Friday to leave the European Union. 

Hammersmith and Fulham, the voting area where the centre is based, voted by a 40-point margin to remain in the UK, which meant the attack was particularly unexpected. “The police are treating this as a one-off, which we hope it is,” Mludzinska tells me. They are currently investigating the incident as a hate crime. 

“But we have anecdotal evidence of more personal things happening outside London. They’ve received messages calling them vermin, scum [in Huntingdon, Cambridgeshire]. It’s very frightening.” As one local Polish woman told the Mirror, there are fears that the referendum has “let an evil genie out of a bottle”. 

For those unsure whether they will even be able to stay in Britain post-referendum, the attacks are particularly distressing, as they imply that the decision to leave was, in part, motivated by hatred of non-British citizens. 

Ironically, it is looking more and more likely that we might preserve free movement within the EU even if we leave it; Brexit campaigners including Boris Johnson are now claiming immigration and anti-European feeling were not a central part of the campaign. For those perpetrating the attacks, though, it's obvious that they were: “Clearly, these kind of people think all the foreigners should go tomorrow, end of,” Mludzinska says.

She believes politicians must make clear quickly that Europeans and other groups are welcome in the UK: “We need reassurance to the EU communities that they’re not going to be thrown out and they are welcome. That’s certainly my message to the Polish community – don’t feel that all English people are against you, it’s not the case.” 

When I note that the attack must have been very depressing, Mludzinska corrects me, gesturing at the vases of flowers dotted around the foyer: “It’s depressing, but also heartening. We’ve received lots and lots of messages and flowers from English people who are not afraid to say I’m sorry, I apologise that people are saying things like that. It’s a very British, very wonderful thing.”

Beyond Hammersmith

Labour MP Jess Phillips has submitted a parliamentary question on how many racist and xenophobic attacks took place this weekend, compared to the weekends preceding the result. Until this is answered, though, we only have anecdotal evidence of the rise of hate crime over the past few days. From social media and police reports, it seems clear that the abuse has been directed at Europeans and other minorities alike. 

Twitter users are sending out reports of incidents like those listed below under the hashtag #PostBrexitRacism:

Facebook users have also collated reports in an album titled Worrying Signs:

Police are currently investigating mutiple hate crime reports. If you see or experience anything like this yourself, you should report it to police (including the British Transport Police, who have a direct text number to report abuse, 61016) or the charity Stop Hate UK.

HOPE not hate, an advocacy group that campaigns against racism in elections, has released a statement on the upsurge of hatred” post-referendum, calling on the government to give reassurance to these communities and on police to bring the full force of the law” to bear against perpetrators.

The group notes that the referendum, cannot be a green light for racism and xenophobic attacks. Such an outpouring of hate is both despicable and wrong.

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.