Celebrity injunction deja vu all over again

Naomi Campbell Image copyright AP
Image caption Judges involved in the case between Naomi Campbell and a tabloid newspaper helped develop the Human Rights Act

As the great movie mogul Sam Goldwyn might have said: "It's injunction deja vu, all over again."

The Supreme Court has decided that the privacy injunction obtained by a married celebrity who, it is alleged, took part in what the courts have called a "three-way sexual encounter", should remain.

That celebrity is known to us only as PJS but following the granting of his injunction in January, has been named in the US media, in Scotland and online.

It is essentially that - the cat being let out of the bag - which led the Court of Appeal to lift the injunction, although the Supreme Court has now decided it should remain in place.

And recently, newspapers have been going to town on a separate story involving a well-known, married actor who has an injunction preventing publication of details of his alleged sexual encounter with a prostitute.

They argue - as it was similarly argued by lawyers representing the Sun on Sunday in the PJS case - it is absurd that he has been named in the United States and on social media, but cannot be named in the mainstream media here.


The actor's injunction was obtained five years ago, but it would seem the print media has been emboldened by what some regard as the orchestrated leakage of identifying information in the PJS case.

It looks to be working through a back catalogue of celebrity injunctions in a campaign to destroy the UK privacy injunction.

The newspapers regard these court orders as unsustainable and unfit for purpose in the global world of the internet. And they are not alone in seeing them as a Canute-like attempt to hold back the modern tide of information.

But injunctions also happen to interfere with the tabloid business model by stopping them from writing about the sex lives of the rich and famous.

Image caption 'Allo 'Allo actor Gorden Kaye sued the Sunday Sport for photographing him in hospital while he was recovering from brain surgery

So how many celebrity injunctions are there? We don't know for sure.

They are often incorrectly referred to as "super-injunctions". A true super-injunction is so powerful that even the fact of the injunction cannot be made public. So we really wouldn't know how many exist.

However, lawyers who work in this area estimate there are possibly one or two true super-injunctions.

There are, however, more privacy injunctions in place. These are injunctions which anonymise the celebrity claimant and details of the activity they are alleged to have taken part in.

The existence of these injunctions can be made public. And so there will be some very twitchy celebrities out there clutching injunctions and wondering when it might be their turn to be subject to a press campaign to identify them.

How did we get here?

There was no right to privacy in UK law until the Human Rights Act in 2000. Before that, newspapers could publish whatever they liked about a person. As long as it wasn't defamatory, it could be as private as they liked.

In 1990, the 'Allo 'Allo actor Gorden Kaye was recovering from emergency brain surgery when a team from the Sunday Sport disguised as medical staff entered his hospital room, took photographs and purported to interview him.

He took his case for breach of privacy to the Court of Appeal, only to be told there was no right to privacy.

Image copyright Reuters
Image caption Max Mosley won his privacy case against the News of the World

The court spoke of the "desirability" of parliament legislating to create a privacy law. It never did, but, in 1998, the Labour government passed the Human Rights Act, which wrote into UK law the European Convention on Human Rights.

It established in statute for the first time two very powerful but contradictory rights: the right to private and family life under Article 8, and the right to freedom of expression under Article 10.

They drew up the battle lines between the rich and powerful who wanted to protect their privacy on the one hand, and a hungry tabloid press who wanted to write about it on the other.

Back in the spotlight

The law was developed by judges in cases involving the supermodel Naomi Campbell, photographed leaving a drug treatment centre, and the former Formula 1 boss, Max Mosley, who took part in a orgy with prostitutes.

His case established that a consensual sexual act between adults was by definition private, and the press could only publish the story if there was a genuine public interest in doing so.

At the heart of the fight was the only effective means of protecting privacy - the privacy injunction.

Image copyright PA
Image caption Ryan Giggs tried to prevent publication of an alleged extra-marital affair

Five years ago, the Manchester United footballer Ryan Giggs had his injunction - preventing details of an alleged affair being reported - melted, following publication online and in Scotland. He was then named by an MP in parliament.

Things went quiet for a while, perhaps while the tabloid media was put somewhat on the back foot by the phone-hacking scandal.

But celebrity injunctions are now back firmly in the spotlight and their future looks pretty fragile.

Some will say the damage to, and possible demise of the injunction is an inevitable consequence of the weakness of national courts to enforce these orders in a global internet age.

Others will feel it that it undermines the rule of law, destroys any meaningful privacy protection and is deeply worrying.

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