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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Leader: Boris Johnson, a liar and a charlatan

The Foreign Secretary demeans a great office of state with his carelessness and posturing. 

Boris Johnson is a liar, a charlatan and a narcissist. In 1988, when he was a reporter at the Times, he fabricated a quotation from his godfather, an eminent historian, which duly appeared in a news story on the front page. He was sacked. (We might pause here to acknowledge the advantage to a young journalist of having a godfather whose opinions were deemed worthy of appearing in a national newspaper.) Three decades later, his character has not improved.

On 17 September, Mr Johnson wrote a lengthy, hyperbolic article for the Daily Telegraph laying out his “vision” for Brexit – in terms calculated to provoke and undermine the Prime Minister (who was scheduled to give a speech on Brexit in Florence, Italy, as we went to press). Extracts of his “article”, which reads more like a speech, appeared while a terror suspect was on the loose and the country’s threat level was at “critical”, leading the Scottish Conservative leader, Ruth Davidson, to remark: “On the day of a terror attack where Britons were maimed, just hours after the threat level is raised, our only thoughts should be on service.”

Three other facets of this story are noteworthy. First, the article was published alongside other pieces echoing and praising its conclusions, indicating that the Telegraph is now operating as a subsidiary of the Johnson for PM campaign. Second, Theresa May did not respond by immediately sacking her disloyal Foreign Secretary – a measure of how much the botched election campaign has weakened her authority. Finally, it is remarkable that Mr Johnson’s article repeated the most egregious – and most effective – lie of the EU referendum campaign. “Once we have settled our accounts, we will take back control of roughly £350m per week,” the Foreign Secretary claimed. “It would be a fine thing, as many of us have pointed out, if a lot of that money went on the NHS.”

This was the promise of Brexit laid out by the official Vote Leave team: we send £350m to Brussels, and after leaving the EU, that money can be spent on public services. Yet the £350m figure includes the rebate secured by Margaret Thatcher – so just under a third of the sum never leaves the country. Also, any plausible deal will involve paying significant amounts to the EU budget in return for continued participation in science and security agreements. To continue to invoke this figure is shameless. That is not a partisan sentiment: the head of the UK Statistics Authority, Sir David Norgrove, denounced Mr Johnson’s “clear misuse of official statistics”.

In the days that followed, the chief strategist of Vote Leave, Dominic Cummings – who, as Simon Heffer writes in this week's New Statesman, is widely suspected of involvement in Mr Johnson’s article – added his voice. Brexit was a “shambles” so far, he claimed, because of the ineptitude of the civil service and the government’s decision to invoke Article 50 before outlining its own detailed demands.

There is a fine Yiddish word to describe this – chutzpah. Mr Johnson, like all the other senior members of Vote Leave in parliament, voted to trigger Article 50 in March. If he and his allies had concerns about this process, the time to speak up was then.

It has been clear for some time that Mr Johnson has no ideological attachment to Brexit. (During the referendum campaign, he wrote articles arguing both the Leave and Remain case, before deciding which one to publish – in the Telegraph, naturally.) However, every day brings fresh evidence that he and his allies are not interested in the tough, detailed negotiations required for such an epic undertaking. They will brush aside any concerns about our readiness for such a huge challenge by insisting that Brexit would be a success if only they were in charge of it.

This is unlikely. Constant reports emerge of how lightly Mr Johnson treats his current role. At a summit aiming to tackle the grotesque humanitarian crisis in Yemen, he is said to have astounded diplomats by joking: “With friends like these, who needs Yemenis?” The Foreign Secretary demeans a great office of state with his carelessness and posturing. By extension, he demeans our politics. 

This article first appeared in the 21 September 2017 issue of the New Statesman, The revenge of the left