The European Convention on Human Rights (ECHR), drafted in the immediate wake of the Second World War as a bulwark against the resurgence of fascism and the spread of Stalinism, guarantees certain fundamental human rights. The European Court of Human Rights (ECtHR) which adjudicates on ECHR, offered first signatory states, then, in the mid-1970s, individual complainants, a higher appellate body for challenging judicial decisions of the highest national courts.
The promulgation of the Human Rights Act (HRA) 1998, at the dawn of the new millennium, meant ECtHR and ECHR were no longer merely the legal backdrop for supranational appeals, but rather imposed a ‘positive obligation’ on the UK to enshrine ECHR’s guarantee of rights within the domestic law.
This gave every citizen the right under Article 8 to ‘respect for his private and family life, his home and correspondence,’ and for the first time in English legal history established freedom of expression as a constitutional right under Article 10. While one may reasonably disagree with individual decisions of ECtHR, from its beginnings in the wreckage of Europe, ECHR has undoubtedly had a profoundly civilising influence, cementing these and other basic human entitlements into law.
Two recent developments in the law of privacy, about which there has been much furore in the media, of varying degrees of accuracy and partiality, have provided salutary clarification of the law, especially relating to injunctions, but have done little to alter the status quo ante of the substantive law. These are the Report of the Committee on Super-injunctions by the Master of the Rolls, and the decision of the Fourth Chamber of ECtHR in Mosley v United Kingdom .
REPORT OF THE COMMITTEE ON SUPER-INJUNCTIONS
The Report of the Committee on Super-Injunctions (the report), published on 20 May 2011, provides a useful clarification and analysis of the current state of the procedure and practice on super-injunctions (those that may not be reported), anonymised injunctions (the ‘alphabet soup’ variety) and non-disclosure orders under Article 8 generally:
- Despite press reporting (which suggests an escalating epidemic of ‘draconian gagging orders’ and ‘super-injunctions’), only two super-injunctions have in fact been granted since January 2010: one was set aside on appeal; the other lasted for seven days.
- Applicants now rarely apply for such orders and it is even rarer for them to be granted.
- A note on nomenclature clarifies what a super-injunction, as opposed to an anonymised injunction, is:
- A super-injunction is an interim injunction that restrains a person from:
- publishing information that concerns the applicant and is said to be confidential or private; and
- publicising or informing others of the existence of the order and the proceedings.
- An anonymised injunction is an interim injunction that restrains a person from publishing information that concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.
- A super-injunction is an interim injunction that restrains a person from:
- The long-recognised constitutional principle of open justice permits only of limited exceptions, either those that are created by statute, or those that involve judicial discretion, to the extent that they are strictly necessary in the interests of justice.
- Where anonymised orders are made, the court has, and should wherever practicable, provide a reasoned judgment for its decision.
The report leaves the substantive law unchanged. However, it introduces two procedural novelties. First, the report proposes a database should be set up so the public can discover how many and in what circumstances privacy orders have been issued. Secondly, the report issues guidance that will create a general requirement for applicants to notify any parties they intend to serve with the order of their intention to make an application for injunctive relief. The report also publishes a summary of recent cases detailing all the privacy injunctions (anonymised and super) granted in recent months. One hopes the report and its recommendations will go some way to alleviating public concerns and misperceptions about ‘secret justice.’
MOSLEY V UNITED KINGDOM 
In the judgment of the Fourth Chamber of ECtHR handed down on 10 May 2011, Max Mosley lost one skirmish in his ongoing Europe-wide battle with the press on privacy.
The details of the original case will be familiar.
The action was a claim for a post-publication injunction over an article, published by News of the World, which falsely alleged Mosley had been involved in a ‘Nazi-style’ orgy, and the accompanying videos, whose recording the News of the World had procured, and that were published on its website and subsequently reposted on YouTube. Eady J refused to grant the injunction on the basis of the Spycatcher principle: namely, that with several million views of the video on YouTube the cat was spectacularly, as it were, out of the bag.
Eady J’s meticulously reasoned judgment puts paid to the suggestion that there was any Nazi element to the orgy, but, as he recognised, Mosley’s life was already irremediably damaged by the publication of the allegations and videos. In recognition of this, he granted the highest award of damages in a privacy action: £60,000.
Mosley then took the case to Strasbourg. The question before the court was whether the UK had a positive obligation under Article 8 to impose a legal duty on the News of the World to pre-notify the subject of a story where it would engage Mosley’s Article 8 rights to allow him to seek an injunction.
ECtHR held that the UK’s lack of pre-notification was within its ‘margin of appreciation’ on the basis that:
- there was no European uniformity of approach regarding prior notification, so a wide margin was given.
- the House of Commons Select Committee had previously considered and rejected a pre-notification requirement, so it had not been legislatively ignored;
- any such compulsory considerations would require civil and criminal sanctions for non-compliance, which would risk having an adverse impact on press freedom beyond the tabloid trade in the private lives of celebrities.
The judgment is narrow and highlights ECtHR’s limited remit as a supervisory body: asking ECtHR to find a prior notification rule was required to protect privacy would be asking it, in effect, to legislate for the whole of Europe, which would be beyond its powers. Furthermore, in the 99 out of 100 cases where pre-notification is given, the lack of a legal mandate for this is of no practical consequence. The absence of pre-notification is only significant in cases such as Mosley’s, where, as was admitted in cross-examination, the News of the World deliberately sought to keep publication from Mosley for fear he would seek, and most likely obtain, an injunction.
The judgment contains some salient dicta regarding News of the World and the limited scope of Article 10 rights for tabloid journalism where there is, as in Mosley’s case, no public interest in publication:
‘The Court makes its disapproval of the conduct of the News of the World crystal clear and emphasises the need for a “narrow interpretation” of freedom of expression where sensational and titillating press reports are involved.’ (Section 114.)
‘Prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.’ (Section 117.)
A HISTORY OF PRIVACY LAW
‘Sexual intercourse began In nineteen sixty-three (which was rather late for me) – Between the end of the Chatterley ban And the Beatles’ first LP.’ – Annus Mirabilis by Philip Larkin.
Although sex was perhaps far from the minds of Clement Attlee and Nye Bevan when drafting ECHR, civil society has altered beyond recognition since. Just over a dozen years later came the annus mirabilis in which Philip Larkin wrote his imperishable poem, sex and pop culture had their twin birth, and in response to the new ‘permissive society’, Mary Whitehouse started her Clean Up TV campaign. Half a century later, we see the daily red top trade in the sex lives of the famous, the not-so-famous and the various gradations inbetween. While this may have been unimaginable to the drafters of ECHR, it is an aspect of today’s society with which the law has had to grapple.
When it comes to consensual sex between adults in private, the English courts and ECtHR have for decades fairly consistently ruled that it falls within the law of confidence, even where, to paraphrase Mosley, tastes extend beyond the missionary position with the curtains closed and the lights out.
The rationale for this is that sexual conduct is ‘an essentially private manifestation of the human personality’ (Dudgeon v United Kingdom (1981)). For decades sexual relationships, in a somewhat piecemeal fashion, could thus be protected by actions for breach of confidence.
In 1988 Stephens v Avery , for example, afforded protection to information concerning an adulterous lesbian relationship. At paragraph 455 of his judgment, Sir Nicolas Browne-Wilkinson V-C explained:
‘To most people the details of their sexual lives are high on their list of those matters which they regard as confidential.’
This would no doubt register little disagreement today. In Barrymore v News Group Newspapers Ltd , just a year before HRA 1998 was drafted, Jacob J said:
‘The fact is that when people kiss and later one of them tells, that second person is almost certainly breaking a confidential arrangement.’
Nor was the privacy injunction a consequence of the enactment of HRA 1998 . It is, in fact, a Victorian case, brought by Queen Victoria’s consort, Prince Albert, which stands as the originating action. In 1849 Lord Cottenham LC awarded the Prince an injunction restraining publication of a catalogue of his etchings not on the basis of copyright, nor of property rights, but on the principle of protecting privacy and providing relief against ‘a sordid spying into the privacy of domestic life’ (Prince Albert v Strange ).
Similarly, super-injunctions are not a novel concept, deriving as they do from general and long-standing principles; they do, however, carry the ‘nomenclature of novelty’ (Ntuli v Donald).
PRIVACY LAW IN THE POST-HRA 1998 ERA
The development of a freestanding cause of action in privacy, the ‘tort’ of misuse of private information, emerged only very recently through the incorporation of Article 8, following enactment by Parliament of HRA 1998, into actions for breach of confidence.
In deciding whether to grant a privacy injunction, the court deploys the test from Campbell v MGN Ltd , as applied by the Court of Appeal in McKennitt & ors v Ash & anor  and as elucidated by the House of Lords in Re S , to determine whether publication of private information is lawful:
- Does the claimant have a reasonable expectation of privacy in the information?
- If so, in the circumstances, should the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by Article 10?
Neither of these articles has precedence over the other; where they are sometimes in conflict an ‘intense focus’ on the comparative importance of the specific rights claimed in the individual case is necessary; the justifications for interfering with or restricting each right must be taken into account and the proportionality test must be applied to each. This is what Lord Steyn named the ‘ultimate balancing test’ (Re S ).
As Eady J highlighted in his recent judicial apologia in CTB v News Group Newspapers Ltd & anor , citing comments of the Lord Chancellor at the time HRA 1998 was enacted, the judicial ‘balancing test’ was recognised as the best method of securing privacy rights for individuals:
‘He (Lord Irvine) said any privacy law developed by judges following the enactment would be a better law because they would have to balance and have regard to both Article 8 and Article 10 (as indeed has been happening over the last decade).’
Furthermore, HRA 1998 was drafted with strong press involvement, ensuring that its privacy provisions mirrored the press’s own code, written by editors and ratified by the self-regulatory Press Complaints Commission (PCC).
Section 12(3) of HRA 1998, for example, inserted as a result of press lobbying, states that an injunction before trial is not granted unless the court is satisfied the applicant is likely to establish that publication should not be allowed. In making its determination, the court is obliged to have regard to the matters set out in s12(4), which includes having particular regard to freedom of expression, and, in relation to material that the respondent claims, or appears to the court, to be journalistic, literary or artistic material, to:
- the extent to which –
- the material has, or is about to, become available to the public; or
- it is, or would be, in the public interest for the material to be published; and
- any relevant privacy code.
This affords some legal effect or consideration to the press’s self-drafted and voluntary editorial code when a court is considering the availability of privacy injunctions, and creates a public interest exception for journalistic, literary or artistic material. The privacy code of the PCC reflects the broad ambit, to use the Euro-jargon, of Article 8. Further, in s3(1) it defines the public interest with admirable clarity as (without limitation):
- detecting or exposing crime or serious impropriety;
- protecting public health and safety; and
- preventing the public from being misled by an action or statement of an individual or organisation.
It is also a requirement of the law, as well as of the PCC Code, that the court should have regard to the impact of publication on a claimant’s children as a paramount principle (eg CDE & anor v MGN Ltd & anor .
Privacy injunctions thus have a rather broader purpose than merely protecting information, unlike in cases of commercial or official secrecy where once the information is ‘out’ an injunction would be futile. As Tugendhat J clarified in JIH v News Group Newspapers Ltd  and affirmed recently in TSE & anor v News Group Newspapers Ltd :
‘In many privacy cases the information sought to be protected is not secret in that sense, or, even if it is, once the secret is revealed, there is still something to be achieved by an injunction. Article 8 is about interference with a persons’ private and family life. There may be such interference by the repetition in the press of information even when that information is not secret or unknown… It may also lead to harassment.’
Or as Eady J put it in CTB v News Group Newspapers Ltd & anor :
‘The modern law of privacy is not concerned solely with information or “secrets”: it is also concerned importantly with intrusion… It is fairly obvious that wall-to-wall excoriation in national newspapers, whether tabloid or “broadsheet”, is likely to be significantly more intrusive and distressing for those concerned than the availability of information on the internet or in foreign journals to those, however many, who take the trouble to look it up… For so long as the court is in a position to prevent some of that intrusion and distress… it may be appropriate to maintain that degree of protection.’
Although these are recent decisions, the principles are clear from the wording of ECHR, HRA 1998, and the press’s own editorial code. And for as long as we remain within Strasbourg’s juridical reach, we are bound to uphold Article 8 and protect the right that such diverse figures as Hugh Grant and the late and brilliant Law Lord Tom Bingham have advocated for as a basic human entitlement.