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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Northern Ireland's election: Will Arlene Foster pay the price for a domestic scandal?

The wind is in Sinn Féin's sails. But both parties have to work together after the poll. 

Will voters use the forthcoming elections to the Northern Ireland assembly to punish ministerial incompetence?

After all, these elections are all about the Democratic Unionists’ Arlene Foster and her disastrous mishandling of the Renewable Heat Incentive scheme, the energy subsidy she previously introduced as enterprise minister without putting cost controls in place, thus racking-up a £500m liability for the Northern Ireland Executive.

Her refusal to stand aside as First Minister and allow an independent investigation triggered a sequence of events that collapsed the power-sharing executive that runs Northern Ireland, necessitating this poll.

The electorate offers its verdict on Thursday.

So far, there has been a predictable rhythm to the campaign. Cautious and insular, the parties have all been here before and know how to harvest their vote. Elections in Northern Ireland are effectively a race to see who can shore up their core the most, (made harder by the overall reduction in seats from 108 to 90 across 18 multi-member constituencies).

Foster knows she is fighting for her political life. Her woeful handling of the RHI scandal, exposed her severe limitations as a politician. Brittle and stubborn, she further damaged her reputation at the DUP’s manifesto launch by refusing to take any questions from journalists on the basis she had "man flu".

Her pitch was a sectarian "Project Fear" warning that Sinn Fein might overtake the DUP as the largest party and push for an early referendum on Irish unity. Sinn Féin president Gerry Adams joked after the launch on Twitter: "Just for the record, I didn't give Arlene the flu." 

Foster’s campaign might be ugly, but in Northern Ireland’s hyper-tribal polity, it could prove effective. If the DUP suffers a reversal, however, her colleagues may yet think twice about re-nominating her for First Minister/deputy First Minister.

Meanwhile, as Sinn Féin’s new "leader in the North" Michelle O’Neill finds herself in exactly the same situation as Foster was 12 months ago at the last assembly elections - taking over from a male predecessor who had been a mainstay of the political process for years.

O’Neill is so far proving formidable. She benefits from the fact the wind is blowing in Sinn Féin’s sails. After all, the reasons for this election - the DUP’s incompetence - will play well among republicans and nationalists. 

Sinn Féin’s pitch is therefore about ensuring "equality, respect and integrity", with O’Neill claiming this is "the most important election since the Good Friday Agreement". The Shinners are pushing for the strongest possible mandate in what O’Neill describes as the "short, sharp negotiation" that will take place after the elections. She says she doesn’t want a new agreement, "just the implementation of previous ones".

In terms of the other parties, Mike Nesbitt, a former television journalist turned leader of the Ulster Unionists, deserves credit for trying to appeal beyond the tribe. He has offered his second preference vote to the nationalist Social Democratic and Labour party. Tactically, he has to try something to dislodge the UUP from the political sediment.

Both the UUP and SDLP are essentially fighting for relevance in these elections. They constantly claim the electorate has had enough of the SF-DUP duopoly and wants change, it’s just that the voters never vote for it. 

Following Thursday’s results comes the hard bargaining, if the parties are to get power-sharing up and running again and avoid a period of direct rule from the Northern Ireland Office. Both Foster and O’Neill need to be seen to strike a hard bargain. Foster will be desperate to claim she is still in control of events. O’Neill, the newcomer, will want to show she is no pushover.

If she is smart, Foster will  push for an early restoration of the executive and try to put this mess behind her. If, on the other hand, there is a lengthy delay, the election could become a running sore. After all, as the DUP may yet have to be reminded, power-sharing lies at the heart of the Good Friday Agreement

Kevin Meagher is associate editor of Labour Uncut and a former special adviser at the Northern Ireland office.