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Background and updates on Privacy
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The 10-point guide to issuing super-injunctions

Ten principles to be considered when individuals seek super-injunctions to avoid “open justice” have been endorsed by the Court of Appeal.
The Master of the Rolls Lord Neuberger said that in such cases the court had to balance two competing rights - the right to respect for privacy and family life under Article 8 of the European Convention on Human Rights, and the right to freedom of expression under Article 10.
There was also the "cardinal importance" of open justice. Lord Neuberger said the open justice rule was not absolute. There would be individual cases, even types of cases, where it had to be qualified.
The 10 points
Case law: JIH v News Group Newspapers

Wayne Rooney's private life and the public interest

 

BACKGROUND

How Esther helped Sienna, Lily and Amy block the paparazzi

Sienna Miller, Lily Allen and Amy Winehouse can thank a civilian police clerk for helping protect them from being hounded by photo agencies and paparazzi photographers. All three celebrities obtained injunctions under an Act which was originally formulated to protect the victims of stalkers.

It was first used against the media 10 years ago when Esther Thomas took the unprecedented step of suing The Sun under the Protection from Harassment Act 1997 after it printed a story headlined

BEYOND A JOKE
Fury after police sarges are busted after refugee jest

The story reported a complaint by Ms Thomas, described as a ‘black clerk’, against four officers over their behaviour when a Somali asylum-seeker sought help.

Her complaint led to the demotion of two sergeants and a £700 fine for a constable. The Sun quoted a “fellow cop” as saying: “It was essentially light-hearted banter in private and the Somali never heard. This is political correctness gone mad.”

The newspaper published a follow-up article and a series of letters under the headline "Don't punish cops over a joke made in private".

This was followed by a story asking readers to contribute towards the constable’s fine.Race-hate mail addressed to Miss Thomas began to arrive at her police station. In fear, and believing she was being targeted, she left her job.

The argument over whether Ms Thomas was entitled to claim damages under the Protection from Harassment Act went all the way to the Court of Appeal.

Lawyers for the Sun had said that laws introduced to control stalkers should not be used to restrict freedom of expression. If the case was allowed to go ahead it would have serious ramifications for the press as a whole.

The "draconian" extension of the Protection from Harassment Act would result in judges becoming "censors or licensors" of the press.

However, the Master of the Rolls, Lord Phillips, said it was arguable that publication of articles in the Sun would lead some readers to send hostile mail to Miss Thomas, causing her distress.

And so was established the principle used by the lawyers acting for Miller, Allen and Winehouse - repeated publications of private photographs amounts to harassment and can give rise to a claim for an injunction and damages.
 

Out of the picture: Winehouse wins court ban on paparazzi at her home |

Now, for scholarly analysis of the Thomas case read Inforrm's
Esther Thomas

  rooney  

"What takes place between Mr Rooney and Ms Thompson behind the closed doors of a hotel bedroom is, at first sight, private. It relates to an indisputable area of private life: sexual relations. Under the general law and the clause 3 of the PCC Code, its publication requires justification in terms of the public interest. Doubtless these points were given careful consideration by the editors. Their reasoning is unfortunately not fully explained in the articles."
Wayne Rooney [Updated] « Inforrm's Blog


Celebrity gagging orders see privacy cases soar

"Footballers and golfers have led the stampede of high-profile names increasingly willing to go to court to fend off unwelcome interest from newspapers."
Number of cases up 50 per cent
Principles to apply when a court considers an anonymity order
Court lifts Howard Donald superinjunction
Ntuli v Donald case law


Mosley's case for prior notification

"Very capable journalists, who no doubt dreamt at University of being a foreign correspondent in Paris, Bonn or Rome devote their working lives to destroying the private lives of those who have, or rather had, a personal, sexual secret the revelation of which will titillate the reader."- in full: Lord Pannick's address to the Court of Human Rights
How the internet can burst the injunctions dam

Privacy: the law in action

"Whether the media can publish private information about an identifiable individual, without their consent, will depend upon an ‘intense’ scrutiny of the facts. The court decides where the balance is to be struck between the competing rights, Articles 8 and 10, by considering each item of information (including any photograph) to determine whether its publication is ‘proportionate."- Heather Rogers QC.
Questions to be explored

Campbell: Mirror loses on privacy issue but wins battle over inflated legal costs

Nearly 10 years after The Mirror printed these pictures of Naomi Campbell leaving a Narcotics Anonymous meeting, the European Court of Human Rights brought a protracted legal tussle to an end. The court rejected the Mirror's claim that the decision in the House of Lords in favour of Campbell's privacy was an interference with the paper's right to freedom of expression but, in a finding of great importance for the media generally, they accepted that no-win no-fee arrangements generally did indeed have a chilling effect on the media's freedom of expression. The Mirror's costs in the Campbell case were in the region of £1,000,000. The paper will now discuss compensation with the government.

1. The Guardian story which sets the scene
2. The RPC blog on the privacy issue
3. Inforrm's case-law analysis
4. How the media reacted to the success fees victory
5. A defence of Campbell's no win no fee arrangement
6. Study aid: House of Lords - Campbell v Mirror


UPDATES AND BACKGROUND TO NEWSDESK LAW

Dacre v Eady

In Newsdesk Law we referred to the debate sparked by Daily Mail editor Paul Dacre's attack on Mr Justice Eady following his judgement in the Max Mosley case. Set out below is, first, the Mail's onslaught, then Dacre's speech in full, and then the counter-attacks from the legal establishment and a summing-up from The Guardian's Polly Toynbee.

As cold as a frozen haddock, Mr Justice Eady hands down his views shorn of moral balance... | Mail Online

Society of Editors: Paul Dacre's speech in full - Press Gazette


Lawyers' riposte to Mail editor: this act protects everybody | Media | The Guardian


Polly Toynbee: Judge Dacre dispenses little justice from his bully pulpit | Comment is free | The Guardian

Now, for the legal implications of the Mosley judgement read the blog below by Andrew Scott, media law expert and co-author of 'Carter-Ruck on Libel and Slander'

We walk a fine line on public interest, but kiss and tell is dead - Media, News - The Independent


Landmark cases

In Newsdesk Law we picked out the privacy cases launched by the Harry Potter author JK Rowling and Princess Caroline of Monaco as setting new criteria in privacy law.Here are contemporary reports on the verdicts from the Guardian's excellent Media section plus their analysis following a subsequent privacy victory for Hugh Grant and Liz Hurley.

JK Rowling wins ban on photos of her son | Media | The Guardian

Princess fires fresh shot in war over privacy | Media | The Guardian


Holiday photo ruling is new blow to paparazzi | Media | The Guardian


 


 
       
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