David Allen Green

A critical and liberal look at law and policy

The third paragraph of Mr Justice Tugendhat

A curious judicial statement on privacy law.

By David Allen Green Published 24 May 2011 17:01

The ruling of Mr Justice Tugendhat upholding the Giggs injunction last night has just been published.

It is short - only three paragraphs - but the final paragraph is fascinating.

It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life. The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection. The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.

Taking each part in turn.

It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose. But in so far as its purpose is to prevent intrusion or harassment, it has not failed.

This would come as a surprise to those who thought that the recently developed tort of the misuse of private information was based on the old equitable doctrine of confidentiality, as supercharged by Article 8 of the Human Rights Act.

One would have thought that once information ceases to be private then the tort would not apply. But here it clearly expands to cover intrusion and harassment: a free standing privacy law, untied to private information.

The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life.

How? This does not seem to follow. But if it does, it means - perhaps paradoxically - that the greater the Streisand effect, the more need for an injunction to be retained.

The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection.

So there, parliamentary privilege.

The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media.

And, finally, the judge can see how the print media is trying to use the internet to outflank the courts. It isn't going to work, you know.

David Allen Green is legal correspondent of the New Statesman

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14 comments

Wed, 2011-05-25 11:03 — Heresiarch (not verified)

I can't conceptually get it either. The two Js really do seem to be making up the law as they go along.

In particular, I find it hard to reconcile this (and Eady's latest) with Eady's previous CTB judgement in which he said (Para 27):

"There may well be, in any given case, room for argument as to what truly is or is not in the public domain; but the principle is clear, namely that the court will not attempt to prevent publication or discussion of material that is genuinely in the public domain since, where that is so, there will no longer be any confidentiality or privacy to protect."

This was the law as most people assumed it to be; that the courts did not issue futile injunctions. It was open to Tugendhat to rule that, while the name couldn't be kept out of the media he could restrain the publication of more detailed information. Instead he has reconfirmed an order that - in its strict terms - is not being obeyed and has no prospect of being enforced. Not good.

Wed, 2011-05-25 15:08 — Matthew Taylor (not verified)

David,

I think we disagree at a more fundamental level in this area than these specific judgements!

From memory, wasn't Wainwright talking about the existence of an overarching common law tort, and not about the existence of a patchwork of common law and statutory (especially HRA based) torts per se?

(I was always of the mind that Wainwright was wrongly decided as to Article 3: it would have been far cleaner to have found the breaches of procedure - rather than the procedure itself - breached Article 3, relying on the Article 8 respect for family - not private - life as placing an obligation on the state to mitigate barriers to visitation by family members.)

Conceptually, I don't see any issue with what they seem to be doing - namely refocusing from "protecting privacy" to "preventing intrusion". I wonder, in fact, if this might not be the start of an attempt to rebadge preceding cases as "intrusion", rather than "privacy", cases. The increasing stridency of the articulation of blackmail as a factor in granting these orders fits with this.

I'd need to got back and reread Campbell et seq, but I don't know that refocusing in this way would present any problem - the distinction the HL drew between the fact of Campbell's drug addiction and the details of her treatment (let alone the photographs) supports supression of some, but not all, information. While the HL split on her appeal, I remember them being largely unanimous on that aspect.

Kremlinology, of course, but isn't it always!

Wed, 2011-05-25 15:13 — David Banks

I think what is very interesting is the distinction being drawn between publicity 'intrusion' by social media and inrusion by the tabloid press.

The argument advanced of late by the tabloids has always been 'you shouldn't stop us doing what is already being done on Twitter/Facebook/Blogs etc'

But Twitter doesn't send photographers to camp on your doorstep. So, Tugendhat says, there's a difference in the effect of the publicity and so the injunction still serves a purpose against traditional media.

An exceedingly bag judgement for the red-tops I think.

Wed, 2011-06-01 00:41 — Mrs.Josephine Hyde-Hartley (not verified)

It might be helpful to reflect upon what remains tortable , even tortuously actionable -

So hang on a minute.. I wonder if it's important here to notice the profound if not clanging difference between what is common knowledge and knowledge that may or may not be in the public interest domain.

Parliamentary privilege is a very important capacity - a time and place to helpfully broaden the context of what may become a particularly ridiculous situation - perhaps one that's obviously going to lead us all into more unnecessary and inappropriate confusion, thus reflecting badly upon all concerned, I think. But I do think it was wrong for an M.P to break the law by mentioning anyone's actual name.

This is why our M.P's, Lords or otherwise could do better with some proper training about how to make the most of Parliamentary privilege, in my view.

Wed, 2011-05-25 16:15 — James Medhurst (not verified)

This is an interesting development because it appears to me that the European Court of Human Rights takes an intrusion rather than a secrecy approach. Had someone reported that they had seen Princess Caroline and what she was doing, it is hard to see how she would have had a case. What was crucial was the intrusion by the publication of photographs.

For me, this is a welcome change of tack because it makes more sense to develop privacy law with reference to Strasbourg jurisprudence rather than trying to develop a common law principle concerned with commerical secrets. I do not blame the judges though because they did not have any common law to get hold of in order to develop the intrusion approach. Parliament should take the blame.

I believe that the secrecy approach should now be abandoned altogether. You do not enter into a commercial transaction when you have an affair, unless it is with a prostitute, and that is an unenforceable contract.

Wed, 2011-05-25 17:08 — @Michael (not verified)

@James Medhurst

I'm wholly with you - privacy should not equate to secrecy. It should be about the limits of active intrusion. Judicially supported censorship should only apply where there are explicit conditions of confidentiality involved or where minors or other vulnerable people are directly involved. Gagging orders have no part in adult social relationships freely entered into.

Those who feel there must be a direct public interest involved whenever the press publishes anything about anybody of a personal note rather seem to dismiss the rights of adults to talk freely about themselves.

The logic of the pre-emptive secrecy advocates is that wealthy individuals will seek to have injunctions immediately issued to stop their former lovers to prevent them speaking to anybody in case it leaks onto the Internet.

My belief is that any privacy legislation should be about intrusive behaviour and not gagging former lovers.

Tue, 2011-05-24 17:21 — Matthew Taylor (not verified)

It's the same argument made in Eady's judgement yesterday and it's no more convincing for Tugendhat having bothered to be express about the fact that he will gag reporting of information which is not secret, although I think he deserves credit for having the intellectual integrity to clearly articulate it.

So, why not do what the logic of their position (and yours, if I'm understanding your posts on this topic correctly) demands, and make contra mundum orders forbidding discussion of this information by *anyone*?

That could (unlike orders against the print media) actually achieve the objective which the court has so far failed to - prevent the "taunting" of the claimant.

In point of fact, the events at Saturday's football match demonstrate that far from achieving this, a significant number of people actually view the court's involvement as a free standing reason to ridicule and taunt the claimant.
Forbidding anyone from repeating this information is now the only way the court can hold the tide. But doing it would dispose of what remains of the wider public's faith in this area of law.

Impotence and irrelevance, or immolation. A difficult choice.

Tue, 2011-05-24 17:30 — foowzkaa

Matthew,

It is usually a bad signe when we disagree.

However, what intrigues me is how the tort (or right of action) is still there when the information is no longer private. What legal basis does it have once that quality is lost?

The House of Lords in wainwright said there was no freestanding privacy tort in English law - hence the development from confidentiality.

I can't conceptually get it...

Tue, 2011-05-24 17:48 — Dr Aust (not verified)

Speaking as a non-lawyer...

Are the courts conflating/wrapping up the anonymity (privacy of the names) with the privacy (derived from confidentiality) of the detailed information (what, where, when)?

I guess one could say that the details in the second bit are private, because known only to those involved and thus confidential information...even if one of the parties would want to sell the info to the NoW/whoever. Obviously having those details across a 3-page spread in a national paper would be intrusive.

I suppose the Q might then be whether, if you allowed the names to be named, the privacy/confidentiality of the rest could be maintained. I dare say the newspapers would be likely to print the lot. So would letting the name out still leave the details "injuncted", either in law or in the prevailing media climate?

Tue, 2011-05-24 17:48 — Natalie. (not verified)

No good can be served by scandalmongering. I have neither wish nor need to be made aware of the intimate goings on of sporting personalities, reality television contestants or indeed any other public figure who chooses to have extra marital relations.
What I do need is for the tabloid press to stop believing it is more important than the rule of law.
They show respect for nothing and nobody and this is going relatively unnoticed.
Why should they be allowed to harass people purely for profit? What good does it serve when they print their 'sex scandals'?
Did they honestly believe that they would be able to circumvent the law with their cheap 'freedom of the press' guise?
The thing I despaired of the most was the blindness of the masses to the manipulation.
That the pitchforks were grabbed and readied against the wronged worried me.
The release of Mr Justice Tugendhat's ruling reassures me. I know the insidious gutter press and their actions have not gone unnoticed and that instead of weakening the case for superinjunctions they have simply demonstrated their necessity.
Spare a thought for the families saved from the harassment and bullying and smile that justice has indeed been served.

Tue, 2011-05-24 19:29 — @Morus1516 (not verified)

DAG - is there a chance that this is less a breach of confidence/privacy injunction, and in fact an injunction against Intentional Psychiatric Harm (as per Wilkinson v Downton)?

A lack of explicit tort of privacy (per Wainwright) doesn't exclude other non-physical torts under trespass against the person.

Wed, 2011-05-25 17:27 — Lloyd Jenkins (not verified)

@DAG

I think that Matthew Taylor has made a solid point here. The judgment in Campbell (post-Wainwright, I think) can't be just about confidentiality- if so the publication of her picture would have been fine. The tort is evolving.