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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If the SNP truly want another referendum, the clock is ticking

At party conference in Glasgow, I heard Scotland’s governing party demand a future distinctly different from the one being sketched out in Westminster. 

Nicola Sturgeon described Glasgow as the “dear green city” in her opening address to the SNP party conference, which may surprise anyone raised on a diet of Ken Loach films. In fact, if you’re a fan of faded grandeur and nostalgic parks, there are few places to beat it. My morning walk to conference took me past chipped sandstone tenements, over a bridge across the mysterious, twisting River Kelvin, and through a long avenue of autumnal trees in Kelvingrove Park. In the evenings, the skyline bristled with Victorian Gothic university buildings and church spires, and the hipster bars turned on their lights.

In between these two walks, I heard Scotland’s governing party demand a future distinctly different from the one being sketched out in Westminster. Glasgow’s claim to being the UK’s second city expired long ago but I wonder if, post-Brexit, there might be a case for reviving it.



Scottish politics may never have looked more interesting, but at least one Glasgow taxi driver is already over it. All he hears in the back of his cab is “politics, fitba and religion”, he complained when he picked me up from the station. The message didn’t seem to have reached SNP delegates at the conference centre on the Clyde, who cheered any mention of another referendum.

The First Minister, though, seems to have sensed the nation’s weariness. Support for independence has fallen from 47 per cent in June (Survation) to 39 per cent in October (BMG Research). Sturgeon made headlines with the announcement of a draft referendum bill, but read her speeches carefully and nothing is off the table. SNP politicians made the same demands again and again – devolved control of immigration and access to the single market. None ruled out these happening while remaining in the UK.

If Sturgeon does want a soft Brexit deal, though, she must secure it fast. Most experts agree that it would be far easier for an independent Scotland to inherit Britain’s EU membership than for it to reapply. Once Article 50 is triggered, the SNP will be in a race against the clock.


The hare and the tortoise

If anyone is still in doubt about the SNP’s position, look who won the deputy leadership race. Angus Robertson, the gradualist leader of the party in the Commons, saw off a referendum-minded challenger, Tommy Sheppard, with 52.5 per cent of the vote.

Conference would be nothing without an independence rally, and on the final day supporters gathered for one outside. A stall sold “Indyref 2” T-shirts but the grass-roots members I spoke to were patient, at least for now. William Prowse, resplendent in a kilt and a waistcoat covered in pro-indy
badges, remains supportive of Sturgeon. “The reason she has not called an Indy 2 vote
is we need to have the right numbers,” he told me. “She’s playing the right game.”

Jordi McArthur, a member for 30 years, stood nearby waving a flagpole with the Scottish, Welsh and Catalan flags side by side. “We’re happy to wait until we know what is happening with Brexit,” he said. “But at the same time, we want a referendum. It won’t be Nicola’s choice. It will be the grass roots’ choice.”


No Gerrymandering

Party leaders may come and go, but SNP members can rely on one thing at conference – the stage invasions of the pensioner Gerry Fisher. A legendary dissenter, Fisher refused this year to play along with the party’s embrace of the EU. Clutching the
lectern stubbornly, he told members: “Don’t tell me that you can be independent and a member of the EU. It’s factually rubbish.” In the press room, where conference proceedings were shown unrelentingly on a big screen, hacks stopped what they were doing to cheer him on.


Back to black

No SNP conference would be complete without a glimpse of Mhairi Black, the straight-talking slayer of Douglas Alexander and Westminster’s Baby of the House. She is a celebrity among my millennial friends – a video of her maiden Commons speech has been watched more than 700,000 times – and her relative silence in recent months is making them anxious.

I was determined to track her down, so I set my alarm for an unearthly hour and joined a queue of middle-aged women at an early-morning fringe event. The SNP has taken up the cause of the Waspi (Women Against State Pension Inequality) campaign, run by a group of women born in the 1950s whose retirement age has been delayed and are demanding compensation. Black, who is 22, has become their most ­articulate spokeswoman.

The event started but her chair remained unfilled. When she did arrive, halfway through the session, it was straight from the airport. She gave a rip-roaring speech that momentarily convinced even Waspi sceptics like me, and then dashed off to her next appointment.


Family stories

Woven through the SNP conference was an argument about the benefits of immigration (currently controlled by Westminster). This culminated in an appearance by the Brain family, whose attempt to resist deportation back to Australia has made them a national cause célèbre. (Their young son has learned to speak Gaelic.) Yet for me, the most emotional moment of the conference was when another family, the Chhokars, stepped on stage. Surjit Singh Chhokar was murdered in 1998, but it took 17 years of campaigning and a change in double jeopardy laws before his killer could be brought to justice.

As Aamer Anwar, the family’s solicitor, told the story of “Scotland’s Stephen Lawrence”, Chhokar’s mother and sister stood listening silently, still stricken with grief. After he finished, the delegates gave the family a standing ovation.

Julia Rampen is the editor of The Staggers, the New Statesman’s politics blog

Julia Rampen is the editor of The Staggers, The New Statesman's online rolling politics blog. She was previously deputy editor at Mirror Money Online and has worked as a financial journalist for several trade magazines. 

This article first appeared in the 20 October 2016 issue of the New Statesman, Brothers in blood