Injunctions and Media Privacy: A Guide for Journalists

A recent example is English footballer John Terry’s attempt to get an injunction order (Terry v Persons Unknown [2010]) to stop information about his private sex life from going to press. Unfortunately for Terry, his injunction application failed, focussing the spotlight even more intensely on the information he was attempting to suppress, as well as raising questions in the public sphere of freedom of the press and open justice vs. the human right to privacy.

Normal vs Super
According to Jacob Dean, a barrister at 5RB, speaking at the Player Issues: Regulations and Contracts Conference in London on October 14 2010, the UK has freestanding tort of ‘misuse of private information’.

“In appropriate circumstances the court will intervene on an interim basis to prevent the threatened publication of private information, may protect the anonymity of the successful applicant for such an injunction, and, in very rare circumstances, might restrict the reporting of the fact of the injunction.”

This last kind of injunction was coined a ‘superinjunction’ by the press at the beginning of 2009, and the term is now in widespread use. The most famous recent superinjunction (now in the public domain) was the case of London-based oil trader Trafigura, who commissioned a report containing evidence that its ships had dumped toxic waste on the coast of West Africa. The Guardian newspaper received this leaked report, but Trafigura’s lawyers obtained an injunction which not only prevented the reporting of the information contained in the report, but prevented the reporting of fact of the injunction itself. In addition, the parties served with the order were not allowed to see the materials put before the judge.

An injunction order binds anyone with notice of it – this means that it can be served across the press, and anyone with notification of it is banned from touching the information without risk of contempt of court. This blanket ban only applies before the trial takes place. Once trial has concluded, (i.e. once claimant gets a final injunction), the rest of the media is free to publish news of the injunction. Some claimants don’t go to trial in order not to lose their broader protection, but the courts now specify that the injunction has to have a return date for trial, and the claim form must be served, or application will be dismissed.

According to Dean, the debates surrounding open justice in the cases of Terry and Trafigura, mean that it is less and less likely that superinjunctions will be granted to protect personal privacy. It is more likely that they will be used in instances of national security.

A Rough Guide to the Process
Section 12 of the Human Rights Act, which deals with reasonable expectation of privacy and the intense focus, states that no relief should be granted to the applicant before trial unless the court should be satisfied that applicant is likely to succeed at trial. The judge concerned will thus use a test of likelihood for the application. Sometimes, as was the case with Terry, when the application is received on a Friday and the judge has no time to really discern its likelihood, he or she will offer temporary relief until a final decision on whether to grant the application has been made.

Secondly, there is a substantive test – the judge needs to discern whether 1) there should be reasonable expectation of privacy and 2) conduct a balancing act of the Article 8 right of the claimant (to private life) and the Article 10 right of the defendant (to freedom of expression), using what in legal jargon is called an ‘intense focus on the facts’, taking each application on a case-by-case basis.

Reasonable expectations of privacy are based on case law, e.g. the case of Naomi Campbell whose photograph was taken outside her AA meeting. The modern view of courts is that trivial information, or information that is plainly false, will not hold up. Similarly, the court is of the opinion that consenting adults’ conducting sexual activities on private property are entitled to a degree of privacy, no matter if they are considered role models to the public. The balancing exercise requires weighing up whether publishing the information is really a matter of the public interest (even though it might be interesting to the public).

Therefore, as Dean states, it is challenging to advise a player who is interested in getting a court injunction. It is often at very short notice and the stakes are high: ‘If you apply and fail you massively raise interest in the story.’

The player’s legal team will need to compile a witness statement with evidence, preferably from the applicant themselves, that their personal information is about to be published. An injunction is designed to protect privacy, not business interests or a player’s reputation, and different rules apply when one is trying to seek an injuction of defamation. Therefore, the focus of the witness statement has to be on the effect of the published information of the claimant e.g. causing the player personal distress.

Then the legal team should decide whether the applicant should be named in the application, as there is often little point getting an injuction if the person obtaining the injunction is to be identified. However, according to Dean, the tendency since the collective outcry surrounding Terry and Trafigura is towards more and more openness of proceedings.

Lastly, there is the notification of the defendant, either a specific publication or ‘Persons Unknown’ in the case of an anonymous threat, about the fact of the application. Even though the hearing may take place in private, it is not necessarily a contempt of court to report on the proceedings. In a normal injunction, a separate order for a ban on press coverage is needed.

The above guide should not be considered official legal advice and Play the Game reserves the right not to accept responsibility for the content of the guidelines.