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24 May 2011

The third paragraph of Mr Justice Tugendhat

A curious judicial statement on privacy law.

By David Allen Green

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.

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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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