Are Privacy Injunctions a Dead Law Walking?


3102d355-cc51-4c70-886e-9975fe9e4309Following the Court of Appeal ruling that a mystery celebrity who had an extra-marital threesome should be named, we digest the issues and arguments surrounding celebrity super-injunctions, and explain why trying to gag the press in the age of social media is a fool’s game.

Such is the power of social networking sites, there is nowhere to hide and no point in a super injunction if Twitter, Facebook and the blogosphere tear the fragile privacy law?

The man in question, who can only be referred to as PJS, is married to another celebrity, identified as YMA. The couple, who have young children, sought an injunction to stop the Sun on Sunday from publishing the story.

Lawyers for the tabloid argued that the man has been named so widely that the injunction is effectively pointless. The Sun estimates that “two billion people worldwide” have access to the identities on the internet and in various publications.

The Court of Appeal initially agreed that PJS and YMA’s right to privacy outweighed the tabloid’s right to freedom of expression. However, their names have been revealed in the US, Canada, Sweden, Scotland and on various sites across the internet. Google refused to censor search results that identify the celebrity.

Ever since Ryan Giggs in 2012 famously decided to slap a gagging order on the world’s press, preventing them from blowing the whistle on his adulterous affair this summer, the clock has been ticking on the bomb labelled super injunction.

The fact it went off so spectacularly in the face of Giggs is a lesson to every wayward celebrity or organisation to think twice before throwing their hat in the ring and slapping a gagging order on the world’s media. Many believe, including people in the legal profession, super injunctions will soon not be worth the paper they are written on thanks to social media.

Where’s the point in a super injunction if Twitter, Facebook and the blogosphere tear the fragile privacy law to tatters?

The couple involved in the threesome have also expressed frustration about the situation. One of them told The Sun: “This is getting more and more crazy. When does this injunction become pointless?… It’s humiliating that people in America, where the celeb was first named, have more freedom than us but now our neighbours in Scotland and Ireland have more rights, which is stupid.”

Such is the power of social networking sites, there is nowhere to hide now and the case of PJS and YMA shows that imposing such a news blackout can do more harm than good.

Lawyers around the country are familiar with the day-to-day tools by which a client can obtain an injunction – a court order requiring that his opponent either do something specific or very frequently not do it.

If an injunction is granted, it is usually fine for the media to report the existence of it. The difference with super-injunctions, and the reason why they have caused such a furore, is that as well as being an ordinary interim injunction to restrict an act, part of the Order is a restriction on the news media from reporting the very existence of the proceedings or the fact that an injunction has been granted.

A successful super injunction ensures a news blackout, until or unless the claimant declares it or a brave and/or anonymous soul puts themselves in contempt of court and breaches the order, by tweeting or blogging about it. Once something is in the hands of the electronic media, it is very hard to put a lid on it, whether the story being broadcast is true or false.

In 2011 Jeremy Clarkson, the former Top Gear presenter revealed that he had lifted an injunction banning the publication of details about his alleged affair with his ex-wife after the claims were outed online Clarkson said the gagging order became “pointless” when his name was linked with the allegations on websites including Twitter. “If you take an injunction out it isn’t an injunction because Twitter and Facebook mean that everybody knows anyway,” he said. “They are incredibly expensive to maintain and there’s an assumption of guilt about which you can do nothing because I’m as bound by it as everybody else.”

It can be hard to understand why a celebrity fling is so important that the public interest (and not merely tabloid curiosity) overrides an individual’s entitlement to privacy, but where that individual trades on an image promoting family values it may well be appropriate for the truth to be known and discussed. It is for this reason that there is increasing unease in the media and in Parliament about the growing trend for rich celebrities or companies to exploit the super-injunction, for fear that important scandals are being suppressed. But super-injunctions are often counterproductive.

It may be that the Trafigura affair would have gone largely unnoticed if it hadn’t been for the super injunction. In that case, social media sites spread the word that the Guardian and Parliament were unable to discuss the incident – and it soon became a word-of mouth scandal.

Privacy practices could have a serious shortage of new clients after the PJS and YMA case and the resulting widespread revealing of names and the claims in unregulated conversation across the globe.

Woefully misjudging the power of the phrase ‘common knowledge’, as well as the power of web gossip and keyboards, as in the case of Giggs, the lawyers of PJS and YMA have inadvertently turned the indiscretion into a front page story that has overshadowed a whole range of important stories. As privacy cases go, this this has to go down as something of a failure!

It could be argued that super-injunctions are not worth the paper they’re printed on, and that the High Court is dangerously out of touch with the rest of the world, particularly the huge section of it that ‘tweet’. An absurd situation has arisen where PJS and YMA had been named and shamed, repeatedly, throughout the world, first on Twitter and the internet, then in newspapers, and yet the High Court, only reluctantly allowed the lifting of the naming of the celebrity (but then two more days to allow the celebrity to mount a challenge in the supreme court!) – thus being in danger of making the law “look like an ass.”

Unfortunately, super injunctions are becoming the most effective form of promotion since the dawn of advertising. Keeping a story out of the traditional media no longer provides any kind of lasting protection for the publicity-shy public figure and rather than protecting themselves they are creating the reverse effect and providing the most effective form of promotion since the dawn of advertising.

Whilst there is, of course a place for legal action in matters of privacy but the PJS and YMA case proves the super injunction is not the answer. Twenty years ago, this might have worked but in the social networking generation there is nowhere to hide and feel sure this particular celebrity would have attracted considerably less attention, and at substantially less financial cost, if he’d announced it in a full page newspaper advertisement!

Looking back at the John Terry story a few years ago, it appeared after the revelations about his private life and after his super injunction failed, that such an approach can make things far worse for the subject in question. It is often the case that if you declare war on the press, in the end you will nearly always lose. It is much better to work with them and at least have a chance to shape the story, and to have your version of events heard. For a time afterwards, the newspapers seemed to target him, perhaps because they were gagged. It just builds up a torrent of anger, which when unleashed is much worse than letting the story come out. It’s like cutting your nose off to spite your face.

In defence of celebrities, the rich and famous there are those who are targeted by certain sections of the public in order to extract money, in which case an injunction is often the only means of protection. However, the public perception is now somewhat cynical and there is an assumption that the person has something to hide.

In such circumstances a course of action may well be to seek an injunction, but would it be the right thing to do? This is the dilemma that the person and their lawyers now face given the notoriety that injunctions cause. Over the years, David Beckham has continually had to deal with allegations and claims regarding his private life. In 2010 there were reports that he had an affair with a Beverly Hills jewellery designer, but he wasn’t fazed by the claim. As John Hendrie, Sports Consultant points out: “People make wild accusations about celebrities all the time and then stories get written that aren’t true. I think it was pretty obvious that’s what’s happened here.”

Mother-of-two Shery Shabani filed a lawsuit against her husband Kambiz, alleging that he tried to run Beckham off the road because he believed the soccer star was having an affair with his wife. She has since filed for divorce and has denied ever being romantically involved with the world-famous star.

There is of course another issue here, and that is the super injunction itself. It’s one thing protecting footballers and their families from unwanted press intrusion, but in this case would Beckham taking out an injunction have made matters worse, when he had clearly done nothing wrong?

If you are looking for advice on privacy laws, injunction or other similar issues contact the Choix Team for the best independent advice.

Choix Multimedia Team


0330 321 1460