Death of the Privacy Superinjunction?

LNS v Persons Unknown [2010] EWHC 119 (QB)

Court refuses to grant celebrity a "superinjunction" to prevent the media publishing the fact of and details about an alleged extra-marital affair.

Lawyers Mark Dennis, Niri Shanmuganathan

Facts

The Applicant, LNS, applied for a superinjunction, primarily on the basis of breach of privacy, to prevent the media from publishing:

• the fact of an alleged personal relationship between LNS and another person;
• any details of that relationship;
• information leading to the identification of either person;
• any related photographs; and
• the fact of the injunction.

The application did not relate to a specific article or publisher, and no Respondent was identified in the draft Order.  The Applicant indicated an intention to serve the Order on "media third parties".  As such, no Respondent was present at the hearing.

On Friday 22 January, Mr Justice Tugendhat granted a limited injunction pending his decision on the application.  The Judge handed down his decision today, Friday 29 January.  He declined to make any order as sought by the Applicant.

Decision

In declining to award an injunction, the Judge gave the following reasons (amongst others).

• There was a threat to publish information about the fact of the relationship, but he was not satisfied that the Applicant was likely to establish at trial that publication of the fact of the relationship should not be allowed.
• There was insufficient evidence of a threat to publish photographs or sensitive details about the relationship.  Having said that, if there had been a threat to publish any intrusive details of the relationship or photographs relating to it, he noted that the Applicant would be likely to succeed at trial in showing that publication should not be allowed to that extent.
• Without hearing from the Respondent or the media, the Judge decided that he could not reach a view on whether publication of the material would be in the public interest.  However, he did not accept the Applicant's apparent submission that the conduct of one person in private must be unlawful before another person should be permitted to criticise it in public.  The Judge noted that "Freedom to live as one chooses is one of the most valuable freedoms.  But so is the freedom to criticise (within the limits of the law) the conduct of other members of society as being socially harmful, or wrong".  He commented how the modern concept of public opinion emerged with the growth of newspapers, which provided a medium for public debate for the first time.  In this way, newspapers play an important role in facilitating public discussion about what are and are not socially acceptable standards of behaviour, whether lawful or not.
• On the evidence before him, the Judge reached the view that the potential adverse consequences for the Applicant were not particularly grave, and it was unlikely that the Applicant found the information at issue particularly sensitive.  The Judge noted that the Applicant had given an interview in the past to a national newspaper about other relationships in which the Applicant had been involved and which potentially had some common attributes to the relationship in this case.  Overall, the Judge found it likely that, "the nub of the applicant's complaint is to protect [the applicant's] reputation, in particular with sponsors".  As such, damages would be an adequate remedy.
• In relation to the application for an order prohibiting the reporting of the fact of the injunction (the so-called "superinjunction" element), the Judge noted that the purpose of such an order is to prevent an alleged wrongdoer from being tipped off about the proceedings before the injunction could be applied for, made and served on him.  It therefore aims to prevent the alleged wrongdoer from disclosing information or destroying evidence before the order has been served.  The Judge indicated that it is unlikely that this form of order would be justified in a case such as this.
• In the circumstances, the Judge did not consider that "an interim injunction is necessary or proportionate having regard to the level of gravity of the interference with the private life of the applicant that would occur in the event that there is publication of the fact of the Relationship".

Comment

This is a significant decision that could result in a fundamental shift in the way the courts consider prior restraint in the context of celebrity privacy cases. The Judge was not satisfied that the Applicant was likely to succeed in defeating a public interest defence supporting publication of the fact of the alleged relationship.  He also indicated that orders prohibiting the reporting of the fact of an injunction are unlikely to apply in cases such as this.  If this is followed in subsequent cases, this judgment could prove the death knell for the superinjunction in these types of cases.

It appears that the Court also felt that the purpose of the application for the injunction was to seek to protect the Applicant's relationships with sponsors, and that therefore the Applicant's remedy lay in a claim for damages rather than the prior restraint of publication by an injunction.  If this reasoning is followed, and the court believes that the real motive for the application is the protection of the claimant's image rights, the courts may treat applications for an injunction based on privacy in a similar way to those based on defamation, for which it is traditionally difficult to restrain publication. 

The Judge noted the Applicant's past conduct in giving an interview to a national newspaper about potentially comparable previous relationships.  He commented that, in principle, this could provide one basis for a public interest defence, although he emphasised that he was not deciding whether that submission would succeed in this particular case.  This would appear to tally with the "zonal argument" – namely, that an individual who talks publicly about an aspect of their private life (such as a sexual relationship) loses their right to privacy in respect of it.

This application was before Mr Justice Tugendhat, not Mr Justice Eady who usually hears such cases.  It would be interesting to know whether Mr Justice Eady would have reached the same decision.

By Niri Shan and Mark Dennis - media and IP lawyers, who are part of Taylor Wessing's Trade Marks, Copyright and Media group

For more information, please contact Niri Shan or Mark Dennis.