Has the internet finally dealt a death blow to the law of privacy?

In May this year a drama unfolded at the Royal Courts of Justice as sections of the national press made repeated applications to the court to discharge orders which had been made to protect the privacy of certain prominent individuals and their families.  This onslaught was fuelled by the widespread disregard of the orders on the internet, notably on Twitter and Facebook, by the naming of the individuals concerned in Parliament under the cloak of parliamentary privilege, and by publication in a Scottish newspaper which claimed it was not subject to the order made by an English court.  

In applying to have the orders discharged or varied, it was submitted on behalf of the press, primarily News Group Newspapers (the proprietors of The Sun and News of the World), that the naming of the individuals had been so widespread that continuation of the injunctions had become a charade and was pointless. As had been said by the court in 2008 in the privacy claim by former FIA boss Max Mosley, "The court should guard against slipping into playing the role of King Canute……there may come a point [when making an order] would serve no useful purpose."

However, in the latest rush of applications the court has made it clear that it will continue to carry out the duties given to it by Parliament in the Human Rights Act 1998 to apply and to attempt to enforce the law which protects an individual's right to a private and family life.  Always the right to privacy has to be balanced by the court, on a case by case basis, with the right, also given statutory force by the Act, to freedom of expression.

Whilst recognizing that some of the protection it had attempted to give the individuals concerned by the making of the orders had been lost by the widespread publication of their identities, the court pointed out that its orders were still effective to prevent further intrusion and harassment of the individuals and their families.

As Mr Justice Tugenhadt observed in the case of CTB v News Group Newspapers on 23 May 2011, commenting on the information already in the public domain, "It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose.  But in so far as its purpose is to prevent intrusion or harassment, it has not failed.  The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life.  The order has not protected the claimant and his family from taunting on the internet.  It is still effective to protect them from taunting and other intrusion in the print media."

Does the age of Twitter and the internet foretell the death of the law of privacy?  The fact that a law may be difficult in particular circumstances to enforce does not mean that it is necessarily bad law. Even if injunctions cannot be made 100% effective, breach of an individual's right to privacy gives a right in any event to compensation in damages for the distress caused by the intrusion.

The suggestion frequently made that the law of privacy is being used almost exclusively to protect the reputations of overpaid male celebrity football stars is not true.  An audit reported in The Independent on 25 May of cases where so-called super-injunctions had been awarded, revealed that of the 333 audited, 264 were made to protect 264 children and vulnerable adults.  

Further, the court has shown signs of a willingness to enforce its orders against those who seek to flout them on the internet.  The fact that the websites concerned are generally based abroad and outside the jurisdiction of the English Courts does not mean that it will be impossible to identify the authors of offending postings.  The Attorney General, Dominic Grieve, recently stated on a BBC Radio 4 Law in Action programme that he would take action against these people found to have flouted the law when it was necessary, proportionate and in the public interest to do so.  Applications are being made in cases currently before the courts for disclosure of email traffic which may lead to the identification of people responsible for postings.

So far as Parliament is concerned, it gave the courts the responsibility for applying and power to enforce the law of privacy.  For a practice to develop under which a member of Parliament feels free to make a statement which has the effect of undermining an order of the court with which the member happens not to agree is clearly arrogant and unsustainable. It is highly likely that Parliament will seek to make further rules to regulate its members' conduct.

These recent developments indicate that the law of privacy is very much alive.  Lord Neuberger's recent report recommends improvements in procedure, transparency and limits on the granting of super-injunctions.  Following its current inquiry into privacy law, the Government may well decide to introduce further legislation in an attempt to better clarify where the balance is to be struck between privacy and freedom of expression.  However, all the signs are that the right to privacy is here to stay.   

Ashfords LLP is regulated by the Solicitors Regulation Authority. The information in this note is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice or as an alternative to taking professional advice relating to specific circumstances.