User:WTF v LOL/Privacy injunctions

Privacy injunctions, also known colloquially as gagging orders and judicially as interim non-disclosure orders, are court orders in England and Wales to prevent misuse of private information or breach of confidence. They aim to provide personal information secrecy by prohibiting misuse of information which is confidential or in which there is a reasonable expectation of privacy not outweighed by the public interest.

Beneficiaries of such orders have included Gary Flitcroft (affair), Lady Archer (diary), Ian Brady (psychiatrist report, David Beckham (home interior and state of marriage), Cherie Blair (domestic), Maxine Carr (anonymity), Sara Cox (topless shot), Andrew Deayton (sex life), Dawn French (daughter's parentage), Jemima Khan (Hotmail hack), Elizabeth Jagger (nightclub sex), Heather Mills (address), Fake Sheikh (photo), and Amy Whitehouse (cordon sanitaire). More controversially there were attempts to stop constituents talking to MPs (outed by John Hemming MP: ship water tanks in March 2011 and baby snatching by Doncaster in April 2011) and journalists reporting parliamentary proceedings (Trafigura toxic dumping in September 2009), before exploding onto the public stage in May 2011 with civil disobedience by parliamentarians, bloggers and tweeters against "gagging orders" obtained by celebrity adulterers such as Ryan Giggs.

This article excludes commercial secrets and other privacy rights created by the Human Rights Act, Data Protection Act, defamation or copyright (which do not provide much in the way of useful remedies), nor does it cover privacy rights against intrusion such as trespass, nuisance, harassment, emotional harm, insulting behaviour, voyeurism, and tapping. It only covers the remedy of injunction, which, due to low damages awards and the uselessness of money after secrecy is blown, is usually the claimant's only concern. Although some privacy-related injunctions are actually family injunctions and restricted reporting orders, this article does not cover family or court of protection law.

After explaining privacy law, it details who is entitled to get or remove an injunction and what happens if it is breached. It includes a list of controversial injunctions, with speculation as to parties, due to the public concern over and debate on interim non disclosure orders. It attempts to do all this in a manner reflective of current events, eg the 2011 super-injunction frenzy, responding to the public interest in correcting misunderstandings of the law, eg "judges are creating a privacy law" and "bloggers will go to prison".

Castlist

The sections on privacy law are relevant summaries from Tugendhat & Christie's The Law of Privacy and the Media, and the section on contempt is a relevant summary of Halsburys Laws of England.

Judges

In a survey of 2010-11 key privacy injunction hearings, Tugendhat J was involved in 11 cases, Sharp J in 9 and Eady J in 6.

Justice Sharp silenced the Goodwin affair until Justice Tugendhat was forced by an MP to vary the order to allow disclosure of his name and that he had an affair. She was also responsible for keeping a footballer's affair under wraps before Giles Coren was accused of leaking it, super-injuncted a celebrity affair, buried an AV campaigner's indiscretion, and clamped down on talk of Kimberley West's latest footballer conquest with a secret judgment. Some of her other judgments are also not published, such as RJA and YYG. She also has her fair share of adulterous footballers begging for protection from divorce lawyers and sponsors.

Justice Tugendhat is joint editor of The Law of Privacy and the Media and the High Court Queens Bench Division List Judge who allocates, inter alia, media cases mainly between himself, Justice Sharp and Justice Eady (both from 1 Brick Court Chambers, specialist media barristers). He has refused to block a BBC care home documentary, and discharged the out of date Goldsmith Hotmail injunction, but is better known for refusing to hush up footballer John Terry's affair, and to a lesser extent, locking down a libellous trust fund squabble. His most intriguing known case involved a senior civil servant who sent something and then few more somethings to somebody not in his family who may have been a man or woman and young or old. But his most widely speculated on case as at June 2011 continues to be AMM - reputedly a TV star with ex-wife trouble. In 2010 he resisted a litigious footballer attempts to gag yet another affair but was overruled by the Court of Appeal. In 2011 he continues his fair share of photo blackmail cases. He was Theakston's barrister when he tried to cover up a brothel visit, and was Naomi Campbell's lead counsel in the case which invented modern personal privacy law.

Justice Eady sat on the Calcutt Committee and co-authored The Law of Contempt. He has refused a drugs cover up in A v B, but helped Gordon Ramsey's father in law hide a second family until the Court of Appeal outed him, saved the embarrassment of an S&M comedian, saved the career of a TV couple with a cybersex problem, gagged an accidentally sent email, super-injuncted a has-been pop star's secret, and most famously found himself accused of played King Canute by renewing an injunction for Ryan Giggs after his affair with was public knowledge.

Lawyers

Like privacy claimants, most privacy judges and solicitors are men, and all leading privacy barristers are men. Media lawyers specialising in privacy are normally rated as reputation managers including defamation but below is a list of privacy specialists.

Solicitors

Claimant

• Schillings are the most notorious for privacy claimants, including MJN (Kim West's footballer), Campbell, John Terry, Browne, Ambrosiadou, Northern Rock and TSE (the footballer named by Giles Coren), Murray (JK Rowlings's child), Madonna in Ciccone v Associated Newspapers, most famously Ryan Giggs in CTB, and lesser known cases such as for TUV, A in A v B, C & D, WER, DFT, RST and X&Y.
• Carter-Ruck are better known for libel but acted for OPQ (S&M comedian), McKennitt, Goldsmith, Elton John and notoriously for Trafigura (the toxic waste traders).
• Olswang are often used by private clients, such as Fred Goodwin (and mistress VBN) and AMM.
• Harbottle & Lewis acted for Prince of Wales and KJH
• Swan Turton acted for Danielle Lloyds claim against Carphone Warehouse for selling her mobile photos
• Collyer Bristow acted for Mosley against New Group in UK and ECtHR

Defendant

• Farrer acted for News Group in CTB, XJA, TSE and MNB, for NGN and MGN in X&Y and against Ashley Cole, but also for the claimant in ZAM.
• Reynolds Porter Chamberlain acted for C & D in A v B, C & D and the Mail in Re Roddy, Prince of Wales, X&Y, Goodwin and Browne.
• Davenport Lyons act for Private Eye and saw off injunction applications by shamed Law Society president Michael Napier and toxic waste outsourcers Trafigura* Wiggin defended Grazia against Victoria Beckham

No preference

• David Price acted for (and represented) Imogen Thomas in CTB, Frisbee against Campbell and in CDE & FGH.
• Charles Russell acted for the defendant Hello!, and claimants XJA and REW, and work for Channels Four and Five.
• Hughes Fowler Carruthers acted in the divorce disclosure cases of Imerman and L v L.
• Mischon de Reya often end up acting in privacy cases for their private clients, such as B in A v B, C & D, also acted for Cowles against the Mail for an article on Stephen Gateley's death
• JMW acted for HXW, the ex-wife of a TV star accused of blackmailing him, and acts for Max Clifford against News Group for phone hacking
• Hogan Lovells acted for Coward against Ambrosiadou
• Henri Brandman acted for CC in CC v AB
• Berwin Leighton Paisner acted for JIH
• Zaiwaller and Withers acted in Imerman.
• Addleshaw Goddard acted for Douglas.
• Gillian Phillips of The Guardian often makes representations on principle but does not need to personally defend WAG stories.

Barristers

Claimant

• James Price QC of the dearest media set at 5RB is an editor of Law of Privacy and Media. His Mosley claim raised the bar for newspapers and his OPQ win opened the floodgates to worldwide injunctions. Since he failed to stop a law of privacy being created in Hello! his cases have all been claimants. Wins included temporary anonymity for the Sunday Mirror in CDE, damages for an orgy video in Mosley, a HoL appeal confirming CFAs are available to the rich in Campbell , continued anonymity in XJA, contra mundum anonymity for the comedian in OPQ, protection marital difficulties in X&Y and of a porn video in Jagger. Losses include Hello!'s defence, an attempt at prior restraint against Private Eye in PQR and failed coverup of BP chairman's gay affair and business asset misuse in Browne. On that basis his success rate would be 70%.
• David Sherborne of 5RB is a celebrity claimant's counsel, 88% of whose cases are for claimants and none for newspapers but one private client defendant. The cases of JIH, Mosley, McKennitt and Douglas which he juniored on are are still cited as precedents and he has helped stop McKennitt and Douglas being overturned. Wins include anonymity on appeal in JIH, seeing off a strikeout of aggravated damages (which claim failed) in Mosley, helping the claimant win in McKennitt and prevent it being overturned on appeal, and helping win the first instance confidence claim and see off an appeal against a privacy award in Douglas. He also represented B, a celebrity's wife, in A v B, C & D, who was falsely accused of plotting to disclose her husband's drug binges. Losses include failing to get a King Canute order against NOTW for the orgy video and to create a law of prior restraint at ECtHR in Mosley, leading Howard Donald's failed attempt to stop super-injunction and anonymity being lifted in Ntuli, helping fail to stop a husband recover stolen files from his divorcing wife inImmerman, and losing appeals on a £1M confidence award, economic torts and licence fee inHello!. On that basis his success rate would be 50%, although that may be partly explained by being hired to push the law too hard, as in Hello! and Mosley.
• Hugh Tomlinson QC from Matrix Chambers is the leading claimant counsel. He does not work for newspapers and 83% of his cases are for claimants. He is a human rights specialist, privacy author and author of Inform blog. His Ntuli, Prince of Wales and JIH cases are often cited as precedents. Wins include initial anonymity for MNB, anonymity for DFT, anonymity for MJN, privacy for Prince Charles' diaries, private hearing and anonymity for KJH, initial anonymity for MNB, specific disclosure against Beckham's nanny, anonymity for JIH on appeal, maintaining press anonymity against intrusion for CTB, lifting anonymity, super-injunction and concealment of fact of affair in Ntuli and most importantly anonymity for TV married stars blatantly having an affair in front of colleagues in ETK. Losses include eventual lost anonymity for Goodwin and the fact of his affair and a failed contempt application against the Mail, revelation of the identity of a police whistleblower in Author of a blog and trying to lift anonymity for HXW. Also acted for Ashley Cole against NGN & MGN and Lily Allen in privacy claims. On that basis his success rate would be 75%.

Defendant

• Mark Warby QC of 5RB is an editor of Law of Privacy and Media, 70% of whose cases are for defendants, mainly newspapers such as the Mail. Wins include allowing a 12 year old to tell her story of abortion in Re Roddy, allowing the Mail to publish a photo of Elton John's baldness (who took them for £100K for libel 3 years earlier), restraining HXW for AMM, blocking a costs order against the successful defendant in Ambrosiadou and covering up an affair against a cuckolded husband's wishes in CC v AB. Losses include Murray which he won at first instance but lost on appeal, defending the Mirror in Campbell, defending NOTW in Mosley, defending the Mail in Prince of Wales and failing to extend Spycatcher to final injunctions in Buffham. On that basis his success rate would be 50%, although that could be partly explained by acting for newspapers after draconian precedents like his own CC v AB.

Either way

• Andrew Caldecott QC is head of 1 Brick Court - the second biggest reputation management set - and a libel author, 57% of whose cases are for claimants and the rest mainly for newspapers and the Attorney General. Wins include avoiding a strikeout for contempt and losing anonymity instead in Goldsmith, continued anonymity for TSE, Campbell photo intrusion first instance and HoL (where he persuaded the Lords to invent a law of privacy), distinguishing A&B and Theakston in RST v UVW and seeing off an application for injunction against a magazine by a publicity- (and drug) crazed celebrity. Losses include running a corporate governance argument for the Mail in Goodwin and trying to allow publication of the addresses of childrens homes in Green Corns. He also represented the Mail on a Spycatcher point in X&Y, and the Attorney General on public interest in Mary Bell and in prosecuting Manchester Evening News in Venables. On that basis his success rate would be 71%, although some of his work is an amicus curae and so not adversorial.
• Desmond Browne QC of 5RB has been a Recorder and is an editor of Law of Privacy and Media, 64% of whose cases are for defendants. Wins include seeing off an attempt by Doncaster to block a BBC documentary, McKennitt's claim and preventing an appeal, coverup of a TV star's sexting abuse of a mentally disabled woman in CDE and Douglas' privacy claim. Losses include Imerman, defending Manchester Evening News against contempt in Venables, defending the Mirror against disclosure of sources in Ashworth, defending the Mirror in Campbell, preventing an appeal in Ambrosiadou, failing to prevent anonymity for murderers in Venables & Thompson and failing to cover up Elton John's baldness in John. His most famous case was Trafigura, which his chambers mysteriously omit from his list of cases but admit involvement in an apology, a case in which an MP called for Carter Ruck to be prosecuted for contempt of parliament. On that basis his success rate would be 36%, although that may partly be explained by taking on difficult public interest cases that few others would be trusted with.
• Richard Spearman QC of 4-5 Grays Inn Sq is a Recorder 55% of whose cases are for claimants and the rest for newspapers, mainly News Group. Wins include injunction on appeal in Ambrosiadou, anonymity of childrens homes addresses in Green Corns, Murray on appeal for JK Rowling's child (where he persuaded the Court of Appeal to create a law of privacy in a public place), anonymity for ZAM, defending the Mirror's right to run a brothel story in Theakston (where he persuaded the court to create a law denying privacy to fleeting encounters), allowing publication of the mistress' job description in Goodwin, seeing off an injunction on Heather Mill's address and anonymity for WER. Losses include trying to bring business relations within Art 8 in Abrosiadou, defending the Mirror in Campbell, trying to protect a drug-addled celebrity's life story in A v B, C & D, trying to hush up a CEO's gay prostitute boyfriend and corporate assistance in setting him up in business in Browne, arguing for publication of anonymised affair details in JIH, arguing waiver of privacy in X & Y, trying to prevent anonymity for XJA, arguing for prior notification of applications in TUV, trying to justify potential jigsaw identification in MNB, but most importantly losing an injunction on appeal in A v B & C, and most famously John Terry's doomed application in LNS. He also represented News Group in MJN, TSE, CTB where he failed to remove anonymity despite Giggs being named in parliament, and MNB where he succeeded in watering down the injunction to name Goodwin and the fact of an affair. Represented MGN and NGN against Ashley Cole. On that basis his success rate would be 36%, although that is partly because he acts for newspapers trying to hold back a tide of privacy law and for celebrities whose outrageous behaviour has put them beyond the pale.
• David Price QC is a solicitor-advocate who sometimes calls in external counsel and is one of the Telegraph's libel lawyers. He defended Imogen Thomas in CTB.
• Heather Rogers QC of Doughty Street moved from Matrix where she defended Private Eye against Michael Napier. Her junior Anthony Hudson represented Max Clifford in a privacy claim against News group.

Newspapers

News Group for its Sun and News of the World is the most frequent targets for celebrity privacy injunctions, followed by Trinity Group for the Mirror and Associated Newspapers' for the Mail. The Sun responded to the May 2011 super-injunction fiasco on 27/05/11 by launching a confessional hotline to "Superinjunction Man". News Group includes the Times, which, with the Guardian are more feared for weightier disclosures such as Spycatcher and Trafigura (although intervened on appeal in Ntuli v Donald), whilst Newspaper Publishing's Independent and Telegraph Media are presumably seen as less threatening as they tend to be served but not joined, although the Telegraph did turn up in JIH and the Independent took a £75,000 hit for Spycatcher.

Other causes of action

Confidence, privacy & intrusion

Privacy is wider than confidence in that it can cover information that is not confidential or which is in the public domain, and extends to self-esteem, dignity, and integrity and autonomy, the right to relate and identity. However, misuse of private information does not cover such interference and is limited to disclosure. In other words, it regulates access to information about us but not access to us, although there are signs the courts might invent such a tort. We do not have a one-stop-shop US-style seclusion tort. There is no tort of invasion of privacy. The boundaries of confidence and privacy can move. Although the Court of Appeal has recommended an incremental move from confidence to privacy, it has also warned against emergency injunction applications citing quantities of authorities consisting of case law on breach of confidence.

Data protection

Data protection has been bolted on to privacy claims but damages have been fairly nominal. Journalists have some protection against the Data Protection Act.

Freedom on information

Journalists, especially BBC and C4, are protected from the Freedom of Information Act 2000 by Sch 1 Pt VI in respect of purely journalistic purposes.

Government leaks

Leaks from government sometimes breach statutory non-disclosure provisions, eg abortion, tax, telecoms, official secrets.

Foot-in-the-door journalism

Journalists may fall foul of intrusion laws around phone taps, doorstepping.

Copyright vs privacy

An extra weapon against newspapers publishing pictures is to buy the copyright before they do. This tactic was deployed in Jagger v Darling to re-inforce a privacy claim against a nightclub boss by buying the copyright in the CCTV which caught children of celebrities in the act.

An exclusive copyright holder will be more likely to see off an application for injunction and pay damages instead.

Sometimes the only to publish a photo will be to buy a licence.

Trespass

Trespass does not automatically block publication. It does not create confidence but may be relevant to the publisher's belief of the nature of the information, and will be even more relevant to a reasonable expectation of privacy.

Privacy law

Breach of confidence

Confidence

Origins

Law of confidence dates back to the theft of Prince Albert's etchings in the mid 19th century, where, although the publisher had no confidentiality agreement, they were deemed to be aware of what in modern terminology would be a reasonable expectation of privacy. By the 1980s even that was forgotten, leaving Gordon Kaye virtually without remedy against reporters dressing up as doctors to sneak into his ward while he recovered from brain surgery to interview and photograph him. By 2003 the Court of Appeal had acknowledged that the ECHR had been added to confidence to make privacy. By 2004 the House of Lords had explained that privacy is confidence minus duty of confidence (the first test - the other two are confidential nature and misuse). By 2005 the House of Lords acknowledged that privacy comes straight from the HRA. By 2007 the House of Lords admitted that there was now a separate claim for misuse of private information. If there is a confidential relationship then then there is less focus on proving confidential nature and the court can jump straight into the Coco test for breach of confidence. Confidential relationship can have a privacy claim as evidence of a reasonable expectation of privacy.

It is not a tort but is probably an equitable claim for unjust enrichment.

Requirements

Breach of confidence needs misuse of confidential information subject to an obligation of confidence. Some authorities say there should also be detriment, but that would be loss of autonomy and easily satisfied in a privacy case.

Quality of confidence

The information must be inaccessible and not in the public domain. For personal information will usually be obvious, eg health, relationships and finances. However, whereas a walk in the park or an address is not confidential, it may be private.

The claimant needs to show a confidentiality agreement or necessary quality of confidence. This can be shown by intimacy, belief, stipulation, circumstances, assumption, operation of law, qualities (unique, valuable & detailed) and damage.

For confidentiality

• Intimacy: This may affect or even be decisive as to confidential nature. Sex life, love letters and conversations and activities in relationships are obviously confidential. Claimants could cite Data Protection Act s2 and Local Government Act 1972 as examples of sensitive information. Even in Argyll v Argyll, the photos were confidential regardless of their contents (marital confidences in a divorce now famous for the "headless man" photo of a duchess fellating cabinet minister Duncan Sandys), although morality was different in those with porn and orgies described by the judge as 'debased' and 'disgusting'.
• Stipulation: This is persuasive but not conclusive.
• Security: Anything behinda computer password is presumed confidential. Seclusion such as curtains and doors are also clues.
• Circumstances: Doctors, lawyers and financial advisers are assumed to accept confidentiality. It matters how many people originally knew and where they were.
  • Reasonable confidant: The reasonable confidant may have had reasonable grounds for assuming confidentiality or the recipient's conscience may have been affected.
  • Deemed confidentiality: The court may catch the mischief the policy seeks to stop. Whereas allegations of rape are not confidential, they may be private.
• Medium: The confidence would arrive orally, in writing, in pictures or electronically. A letter or diary tends to look confidential. Due to the reality of a snapshot, a photo could be confidential where an account of the event is not. A tape recording has the same effect compared to an account of the conversation.
• Quality:
  • Trivia: Wholesale revelation of sexual conduct is not trivial tittle tattle. Triviality was a factor in refusing an injunction protecting an address. Attendance details of Narcotics Anonymous are not trivial. A celebrity's PA is likely to be know more than trivia.
  • Value: If a newspaper buys a story or makes money selling it then that suggests the information was valuable, which is a pointer to confidential nature.
  • Specificity: The claimant must be able to define what is confidential, eg is it the fact of something or the detail of it, such as being in a brothel versus what you did there or having a gay affair versus the details or even who with? If, for example, a laptop full of data is stolen then there is no need to specify every file - it is assumed it is confidential overall, except what is in the public domain which can be excluded easily by a public domain proviso in the injunction. The claimant must be able to tell the defendant what not to do - sometimes it is too difficult.
  • Damage: Severity of damage is a key factor. The claimant must reasonable believe disclosure would injure them. Damage might include loss of control and invasion. Injury to feelings was what swung the House of Lords in favour of Naomi Campbell - a case where most judges in the three courts hearing the case decided against her.

Against confidentiality

• Falsity: There is no confidence in falsehood. Minor inaccuracies do not count. An attempt to dress up a libel claim as a confidence claim would be an abuse of process. However, falsity does not prevent Art 8 engaging and is irrelevant. An injunction was granted to a footballer blocking false allegations of what a servant would have known the truth of.
• Public domain: This is a bar to confidence, but not to privacy.
• Public record: Normally public domain means the public know it rather than could find it out. Sometimes public registers have been deemed to put data into the public domain, even if only required to be included.
  • Court proceedins are deemed public domain.
  • Convictions are public domain.
  • Statement read at public hearing is public domain even if nobody heard.
  • Material referred to in open court is public domain, even if the case has settled, except perhaps as queried by Eady J in a High Court case.

Obligation of confidence

The recipient should have known it was confidential from his relationship with the owner or the circumstances of receipt, eg a diary page floats out a window on to the pavement, or is deemed to know to protect a human right, eg right to life of a murderer with a contract out on him. This limb of the test is being watered down. It is possible to cautiously grant an injunction protecting non-parties.

State agencies have a separate duty for compulsorily acquired data unless it reasonably believes it is proportionate to disclose in the overriding public interest. Any government data is subject a separate duty not to disclose, even if the data is in the public domain, unless there is a pressing need.

A duty can arise through contract, equity on parties, equity on third parties or injunction:

• Contract: A confidentiality agreement is governed by contract law. Often a celebrity will rely on a duty placed on a respondent by a contract with their management company, who has no standing to sue. The court will need to see a deed or consideration, such as getting work out of an agreement. The contract can be drafted to extend the duty beyond termmination (and might even survive repudiation) and cover non-confidential matters. A defendant may argue obscurity, illegality or public policy. It may be in the public interest to disclose and this may undermine consideration. Reasonableness can be considered both at the time of agreement and disclosure. Art 10(2) may trump employees' confidentiality agreements and a confidentiality agreement is not (automatically) a better defence against freedom of expression than other methods of imposing the duty, although it depends on the public interest in upholding contracts.
• Equitable duty of confidant: The duty is imposed by receipt 'importing an obligation of confidence', which depend on the circumstances of acquisition. This test is not needed for privacy claims if the information is obviously private or the claimant had a reasonable expectation of privacy.
  • Circumstances: The test is whether the reasonable recipient would have realised it was confidential, ie was he on notice of a reasonable expectation of confidentiality.
  • Relationship
    • Professions: A duty can be implied as necessarily in the contemplation of the parties, such as doctors, accountants and solicitors. The public interest can trump this.
    • Transactions: To a contractual duty may be added an equitable duty not to disclose for unauthorised purposes, but maybe not for prostitution.
    • Fiduciaries: Employees might not be restricted in purpose.
    • Non-contractual: Friends may be bound, especially if secretly recording. The longer the relationship the higher the duty. Third parties have less entitlement to disclose than the parties (and often lose it altogether by blackmail).
  • Stipulation: This does not have to be contractual.
  • Notice: Strangers are bound if they knew or ought to have known of confidentiality.
    • Unauthorised photography: This can create the duty without warning notices, especially if the 'pap' had to sneak or use a telephoto lens, bearing in mind that photography can be particularly intrusive, but protests by the claimant at the time are not enough.
    • Trespass: This might not be actionable by the claimant, eg because they were not the owner, but it can suggest confidentiality, eg how were a celebrities' breasts not confidential if it needed a trespass or move onto private property to snap them?
    • Eavesdropping: Using a public medium, such as the telephone in respect of police bugging, can reduce the duty, as can loose talk in a bar, but unjustified bugging or phone tapping may be a breach, especially if also a crime.
    • Surreptition: The duty can arise if information should not be disclosed which was obtained surreptitiously, but the modern view is that it does not create the duty but helps justify discretionary remedies.
    • Innocence: Strangers may stumble across information in an unintended and unauthorised way and thus be fixed with a duty. This duty now appears to cover colleagues having knowledge of an affair foisted on them where they gained the knowledge in an authorised manner, maybe even intended by the shameless participants.
• Equitable duty on recipients: A recipient inherits an equitable duty of confidence if he knows the information arrived in breach, but is only bound if his conscience is affected. The information could come from the confider, confidant or elsewhere.
  • Confider: The confider might make the recipient a confidant by putting them on notice of confidentiality beforehand, or can do so afterwards, subject perhaps to the recipient not having changed their position in reliance on the disclosure.
  • Confidant: A publisher is in breach if he is objectively dishonest in using information from the confidant, but all the claimant has to do is show the publisher was 'clothed in conscience with a duty of confidentiality', ie no need to prove dishonesty, and went beyond honest journalistic lattitude.
  • Elsewhere: The court has purported to grant a worldwide order on everyone regardless of where they got information from, who they are or where they are (although in this case the applicant, a peodophile under threat of death and torture for kidnapping and sexually abusing and chopping in half a toddler, blew his secret identity by posing for a photo in a local newspaper at work, forcing taxpayers to fund yet another identity). In other words the court can impose a duty on strangers. it is acceptable to impose a duty of the media.
• Awareness of injunction: The applicant can serve an injunction on non-parties to put them on notice of the order and confidentiality. This imposes a duty of confidence on the recipient and makes them subject to Spycatcher contempt. The risks to the applicant are that the recipient now know what he did not want them to know and becomes an interested party entitled to apply to vary or discharge the order, perhaps using public interest arguments not made by the respondent. Recipients may still have defences such as that they have not published enough or did not destroy confidentiality. A recipient may try to hurry along proceedings to trial so that the interim order is made final, thus removing Spycatcher contempt jurisdiction and allowing all non-parties to ignore it, unless the applicant convinces the judge to make the final order against persons unknown covering their description or contra mundum (against the world).

Who can sue

A government diary will be confidential to the government and author.

Misuse

The recipient's conscience must be affected or use must be unreasonable.

The claimant must show an actual or threatened breach with reference to nature, scope and duration of the duty.

• Scope: This may be determined by a confidentiality agreement, or fiduciary duty (which brings special considerations), or an equitable duty. If an equitable duty then factors include collateral purpose, unconscionable behaviour, disproportionate disclosure and publication responsibility.
  • Collateral purpose: The law may imply a limited purpose, eg not to use a justified recording for an unjustified purpose, but such use is not automatically a breach. Circumstances may imprint on a recipient an equitable duty not to breach his own conscience, although it has been suggested it is not decisive, as it can depend on the public interest, which might narrow the scope or justify disclosure despite it.
  • Publication responsibility: A photographer and others involved in getting the story out can be jointly liable.
• Duration: The duration depends on the status of the information. A confidentiality agreement might survive termination of the surrounding contract. Confidence ends when personal information reaches the public domain, but not privacy. It ceases on death.The claim passes to the PRs but they would struggle to get an injunction.

Detriment

Some authorities say there is a fourth requirement of detriment. It probably only applies in hybrid cases where there is commercial and personal information. For personal information disclosure is detriment, even, it is suggested, if it would paint the confider in a good light, but that could unlawfully restrain freedom of expression.

Offensiveness is still a valid consideration, but is more relevant to proportionality (whether to disclose) than detriment, and not part of the confidence test and probably should not used at all for privacy, but could inform a reasonable expectation of secrecy or privacy.

Third parties

A newspaper who comes across a friend of a girlfriend of a footballer may have trouble arguing that it is not deemed to have known the information originated from a confidential source, in which case, it cannot become Equity's Darling by paying for the story without realising. Being served with an interim injunction would create the 'obligation of confidence'.

ECHR

Persons can petition the European Court of Human Rights under Article 34 of the Convention for the Ptotection of Human Rights and Fundamental Freedoms 1950.

Human Rights Act - Misuse of private information

Claim

Origins

The claim was originally for breach of confidence, which the courts were bound to expand to satisfy the Human Rights Act 1998 s6 using the ECHR Article 8. But such a shoehorning was criticised in 2006 and 2008 (when it was held the 'tort' is Art 8 privacy subject to Article 10 freedom of expression). Even this was after privacy (protecting autonomy and dignity) had in practice been separated from confidence on 06/05/04 in Campbell. It was finally acknowledged as a cause of action in 2008. It was given impetus by the ECtHR ruling in 2004 that the government must protect individuals' privacy against each other, in addition to the duty of the courts to interpret English law compatibly with the ECHR and not to breach the ECHR. Articles 8 and 10 apply to individuals. The courts must take into account ECtHR jurisprudence, eg that Art 8 protects integrity and relationships, but this cannot overrule English law.

In Theakston in 2002, although of only persuasive authority, the High Court held that an applicant needs to prove they will probably win to get an injunction, intimacy is not always confidential, depending on the relationship, effect on others could affect confidentiality, a one night stand is as far as the court will protect - not brothels, previously putting sex life into public domain is relevant, but photos would be an invasion of privacy unless similarly previously put into the public domain.

In A v B & C in 2002 the Court of Appeal held that interference with freedom of expression needs justifying regardless of public interest, duty of confidence depends on the parties' relationship, courts are not arbiters of taste, transient relationships deserve less protection, other parties should have their right to tell their story considered, privacy is not necessarily in the interests of an adulterer's family and publication could be in the public interest if a celebrity held a position of responsibility which attracted media attention.

In Campbell in 2004 the House of Lords held that publication of treatment with covert photos is an invasion of privacy as the newspaper should have known there was a reasonable expectation of privacy, and publishing photos exceeds what is necessary to set the record straight, but newspapers should otherwise be allowed journalistic lattitude.

In Green Corns in 2005, although only of persuasive authority, the High Court held that an institution can be a claimant on behalf of its charges and homes for troubled children deserve anonymity of address.

In CC v AB in 2006, although of only persuasive authority, the High Court held that adultery could be protected but that the fact of a relationship is unlikely to be confidential.

In McKennitt in 2006 the Court of Appeal held that limited disclosure by a claimant does not open up their whole life and the right to tell one's story does not extend to trampling privacy to tell another's story.

In Prince of Wales in 2006 the Court of Appeal held that the public interest test is not whether there should be publication but whether a duty of confidence should be breached, and nature of relationship is relevant to proportionality.

In Browne in 2007 the Court of Appeal held that reasonable expectation of privacy depends on nature and circumstances, not everything in a confidential relationship is private and interim judgments should omit private information pending trial although the injunction will not necessarily prohibit the media from repeating it.

In Murray' in 2008 the Court of Appeal held that the first question is reasonable expectation of privacy and the second question is how to balance privacy and publication, when offensiveness to an objective reasonable person would be relevant, and that there is no bright line between private and public activities and children should not be targeted where parents would object.

In Mosley in 2008, although of only persuasive authority, the High Court held that sex between consenting adults on private property carries a reasonable expectation of privacy, clandestine recording is hard to justify and exemplary damages are not available for privacy.

In Ntuli in 2010 the Court of Appeal held that a reasonable expectation of privacy as to details of a relationship does not extent to the fact of it being sexual, and anonymity is normally only available if the applicant proves they will probably win at trial.

In JIH in 2011 the Court of Appeal held that privacy is best provided by anonymity and publication of more details rather than naming and publication of less details, especially where previous coverage would enable jigsaw identification, and judgment should be public.

In ETK in 2011 the Court of Appeal held that knowledge of an affair by colleagues does not put it in the public domain, effect on family should be considered, especially children, and the deciding factor is whether disclosure would contribute to a debate of general interest.

In OPQ in 2011, although of only persuasive authority, the High Court held that a contra mundum injunction can be made to circumvent the rule in Buffham (that Spycatcher contempt jurisdiction ends on final judgment).

Margin of appreciation

The ECtHR gives member states some discretion as to where to set the boundaries.

• • A forced apology was proportionate for publishing photo of assassination against family's wishesH
  • A damages award was proportionate for speculating on politians' marriages.

No specific privacy law

Art 8 does not protect against all intrusion. Although at the ECtHr it also covers integrity, pollution, identity and lifestyle, in English courts it is only implemented by an extension of the equitable tort of breach of confidence called misuse of private information, so it protects privacy, not secrecy. Announcing that a judge is a Freemason was not secret or harmful enough.

A person may complain to the ECtHR that Art 8 leaves them without a remedy. Such cases tell us where the boundary is for Art 8.

Elements

The claimant must pass the two-stage 'misuse test' to show that:

1. the information engages Article 8 by coming within his private or family life, home or correspondence (by having a reasonable expectation of privacy, regardless of offensiveness of disclosure), then, if the publisher knows or ought to know that it ought to be kept private,
2. his Article 8 privacy should override Article 10 freedom of expression. He must show a disproportionate interference with private life information.

There is no need for a relationship between confider and publisher, nor does the information have to be true. Article 12(4) of the balancing act does not prefer Article 10 freedom of expression (which is what parliament could amend to quell the public furore over adultery super-injunctions).

Decision making

The misuse test is decided in five stages:

1. Is Article 8 engaged? (otherwise there is no case)
2. Is Article 10 engaged?
3. Intensively focus on the facts to weigh privacy against freedom of expression (the balancing test)
4. Other rights may need balancing alongside freedom of expression
5. There should be no generalisations

Injunctions

If the claimant wins the misuse test he can only have an injunction once he further shows that

• a publisher has threatened to publish and can be told exactly what not to publish, and
• he is likely (normally >50%, but at least more than a real prospect in an emergency or where damage would be severe) to succeed at trial (meaning the court has to look at the merits at the interim stage).

Reasonable expectation of privacy

Establishing a reasonable expectation of privacy is stage one of the two-stage test above.

Approach

Objective circumstances

The particular information must be private to the particular claimant. Sometimes it is obvious, but care should be taken of generalisations.

In case of doubt the court must use the reasonable expectation test, including consideration of the claimant's attributes, nature of activity, purpose of intrusion, consent, effect on claimant and circumstances and purposes of receipt.

Guiding considerations

• Art 8 scope: This covers not just personal information but family, home, correspondence, dignity and autonomy. The classic debate is of adultery as to whether disclosure protects the institution of marriage as a cautionary tale or non-disclosure allow a marriage to be saved. Often, though, the claimant is a footballer who ignores marriage vows and merely wants an injunction to stop his wife and sponsors finding out.
• Art 8 limits: Art 8 entitles a person to 'respect for privacy', not 'privacy', so triviality and interactive democratic society can make 'respect' something less than a guarantee. It is still open to argue that, contrary to the Court of Appeal's musings, according to the House of Lords Art 8 does not have 'full direct horizontal effect', so individuals should have less privacy from each other than from the state. Equally, the state has a duty to protect freedom of expression by not disproportionately enforcing privacy between individuals.

Key factors

The most persuasive factors are a confidential relationship, nature, form and effect, ie what was the claimant doing, how was the information kept and how will disclosure affect him?

Nature of information or activity

Intro

Nature is key as, for example, purloined information suggests the recipient's perception of confidential nature, and, as with form, can be decisive as to reasonable expectation of privacy. Anonymised information is not private. Unlike in confidence, the information does not have to be true. The defendant could try to pressurise the claimant into admitting the information is completely false (and thus that the claim is an abuse of process to obtain prior restraint) by arguing the public interest in disclosing the truth.

The more intimate the information the more it should be protected. Health is an example of a sensitive matter, but in the words of Lady Hale in Campbell, a 'broken leg' is of lesser sensitivity.

ECtHr cases

• A rape suspect was entitled not to be stalked by a photographer.
• A kidnap suspect on remand was entitled not to have his photo published.
• Publishers
  • A large damages award robs a publisher of freedom of expression.
  • A photo is allowed if the article is in the public interest.
  • A photo is allowed to publicise a public figure in the public interest even if he is not well recognised
  • A photo is allowed to illustrate a criminal trial
  • A fine was a disproprtionate restriction on freedom of expression when mentioning that a criminal's wife is an MP
  • A conviction and threat of prison was disproportionate for revealing relationships between public figures
  • A fine and damages were disproportionate for publishing a domestic incident between a public figure and suspect
  • A damages award and apology was disproportionate for publishing a political discussion

Health

Treatment has long been confidential. Even doctors' with AIDS, a psychotic murderer's medical report and Ian Brady's hunger strike records have been protected. Health, medical records and treatment are easy to identify as private. But of course, minor disclosures may be so trivial that they do not deserve the 'respect' required in Art 8.

Sex

Marital sex and adultery is confidential, as are gay affairs.

The more intimate the information, the greater the justification needed for disclosure. Gender assignment, orientation and sex life are covered by Art 8. Sex similarly comes under DPA 1998 s2. Sex lives are private. Whereas there used to be a wide continuum of relationships deserving more or less protection, now it appears they are all protected unless criminal or grossly immoral or grossly offensive, especially clandestine recording. Even a cuckolded husband is expected not to sell his story. However, the fact of a relationship or orientation is not private. It is not private to be convicted of S&M even though all parties consented. Habitual use of prostitutes is private, but not conversations between customers in the waiting room (where Newcastle FC directors slagged off fans to undercover NOTW reporters in a Marbella bordello). Consent to disclosure from participants did not stop Mosley's involvement being private.

Private acts

Love letters are private.

Appearance

Appearance has been confidential since 1849. Even innocuous photos can be invasive because they allow the reader to become a spectator. Secret filming can be intrusion in itself, although misuse of private information does not happen until it is published. Police taking photos of protestors is not a breach. Pre-career family photos and porn shots are private, as are topless shots snuck from a hotel, photos in a brothel, CCTV of sex in a nightclub, an unauthorised photo of a conjoined twin, photo leaving Narcotics Anonymous, photos of an S&M party, photos of the 15 year old mother of a baby by a 12 year old boy and a child in a puschair. Location can affect reasonable expectation of privacy. There is a difference between being accidentally caught on camera and being targetted. It would seem a paparazzi on the prowl starts on the back foot when defending a shot. Although in Canada, sitting on library steps is private, in England 'popping to the shops for milk' or appearing outside your home without your trademark wig is not. Murray's 'it depends on the circumstances' approach has not entirely resolved the conflict between a Hannover 'walk, ride, shop, cycle, ski' and a Campbell 'pint of milk'. One assumes the different judgments are explained by the difference between a publicity-seeking model and child who had the accident of being born to a famous author.

ID

Anonymity is confidential if losing it links someone to private information, even if creditable. For example, a police informant's identity may be confidential. For privacy, claimants are expected to prove a real and immediate risk. Protection may even be purported to be granted worldwide to child killers (Mary Bell) and an accessory to murder of children. Troubled youths are entitled to privacy as to their address in a care home. Of particular relevance to the Giggs injunction fever in May 2011, in England a blogger is not entitled to hide his identity, whereas in the USA, where most social network sites are hosted, the First Amendment preserved an author's rights to choose whether to be identified. Address is rarely private without impending harm.

Home

Photos of a home interior are private, especially where it compromises security details, as is even trivial description.

Politics

Politics are sensitive data under DPA 1988 s2 but are only private while the confider keeps them private. A public figure's true beliefs might be relevant to the balancing test.

Crime

Knowledge of crime is confidential until aired in open court and must not be extracted by actual or threatened compulsion. Statements to police, and unused prosecution material are confidential, but not used material. Crime is another sensitive data class in DPA 1998 s2. Convictions are not confidential, so police can tip off neighbours, but not old unproven allegations. Although the High Court can give anonymity, announcement in court puts convictions in the public domain and removes expectation of privacy, as it does for defendants and acquittals. Courts are increasingly protecting new convictions, especially where disclosure of mothers' identity would harm children, but this is deprecated as it undermines open justice and would give carte blanche to every criminal with a child. Spent convictions could be an example of something to be protected against blackmail and maybe even dredging up despite earlier publication in newspaper.

Finance

Marital business matters are confidential. So are one's business financial arrangements and tax affairs, but a leak can be in the public interest.

Family finances are private, until raised in open court (the court can order a private hearing). Self-employed contracts can be private, especially if discussed at home. Public figures' salaries are probably not private, especially if publicly funded. Courts are alert to the need to disclose wrongdoing.

Children

Carers have a duty to protect a child's privacy. The family's Art 8 rights are engaged by a Child Protection Case Conference. A child has a right to respect for privacy or to speak out, so must not be unwillingly dragged into a parent's campaigning. It could even infringe a child's privacy to photograph them without them complaining. A 15 year old mother of a abby by a 12 year old had a right to privacy (or the newspaper conded that anyway. A childrens' home can enforce privacy for its address on behalf of residents.

Third parties

Claimants can wheel in absent third parties to borrow their rights in aid, eg a cheating footballer who intentionally and persistently forgets his wife and children during hotel romps with models will suddenly remember them when arguing that disclosure will embarrass the kids in the playground and the mum at the school gates.

Collections

Innoccuous information like address becomes sensitive when combined with sensitive information such as crime, or even with innocuous information each item of which gathered from the public domain.

Past events

There is increasingly a move towards the French droit d'oubli. Public domain is no bar to privacy of old information dredged up, a principle famously used by a pop star banning porn shots of her younger days.

Form

The container may be more relevant than its contents. A laptop's contents are presumed confidential, and so probably also private.

Correspondence

This has been confidential since 1774 and the writer retains confidence in it, to the extent that they are not part of the recipient's estate. Correspondence is listed in Art 8 as protected and even private emails at work are covered.

Telephone

Telephones were considered public in 1979 but by 1984 they were were seen as confidential. Tapping was by 1997 considered an invasion of privacy of what is treated as correspondence. Secret recording may invade privacy unless in public and depending on purpose, eg selling story vs whistleblowing or litigation. That mobiles use encryption and PIN codes ought to suggest a reasonable expectation of privacy.

Diaries

The 'dropped' is the textbook example of a stranger inheriting a duty of confidence. Long lens photography is seen as equivalent. Confidence and privacy is easily shown if the claimant marked them private and confidential, restricted circulation and used confidentiality agreements. Consideration is given to content, form and relationship and a relationship of confidence is not needed.

Limits

• Third parties: Lady Archers diaries were held private, although they were subject to a confidentiality agreement and being hawked for sale by a disgruntled ex-employee. Information purely about third parties was thought not private in 2003, but the Court of Appeal thought it was in 2008 and the PCC already thought a photo of a third party in the claimant's house was private in 1998.
• Trivia: Trivia is still trivia even if in a diary.
• Impropriety: Unsolicited love letters to a married woman are not private.

Effect of disclosure

Harm

Campbell is the main authority on harm. Whereas an article may be acceptable, a photo, especially when combined with an article, causes harm by making the claimant feel stalked or betrayed. Popping to the shops for milk or having a broken leg is not private. But violation of private space can be harm itself as it undermines dignity and autonomy and there is a danger of courts interpreting Campbell narrowly to comply with a ECtHR ruling that even banal information about a public figure is private. The Court of Appeal continues to follow the House of Lords (as it must) and avoid this by holding that Art 8 'respect' requires information worthy of it and so banal information does not engage it let alone stand a chance against public interest. There was no right not to be photographed in the street unless aggravating circumstances, where Laws LJ warned against 'unreal and unreasonable' claims.

He suggested three safeguards:

1. seriousness of threat
2. reasonable expectation of privacy (taking a photo is less serious than publishing it)
3. Art 8(2) justification

Circumstances

Who

• Public figures: These have slightly less expectation of privacy. The ECtHR does not accept a blanket rule that public figures are public property, is suspicious of the press confusing public interest with public curiosity, and says there is no 'right to know' except in exceptional circumstances with politicians. However, the Court of Appeal pointed out that, for example, footballers are role models whether they like it or not and should expect media interest, but clarified that this excludes disclosures that would offend a fair minded person and the House of Lords went on to confirm that being a publicity-seeking celebrity does not rob them of privacy. The problem is that 70% of the public see privacy injunctions as being given out like sweets to the rich and famous and 65% do not see why stars who make their money from their image should be allowed to sell the good bits but put people in prison for revealing the bad bits.
• Children: In short, children get greater protection due to their immaturity, but their reasonable expectation of privacy depends on how much their parents have given them. Some famous people shun the limelight and some who do not still keep their children out of it.

Where

• Private: The PCC Code prohibits photos in private places.
• Public: Sadly, the only reason the ECtHR ruled as they did in Hannover was they could rely on Peck, an English case where a celebrity had no remedy in the UK for publication of CCTV of him trying to commit suicide. ECtHR also say it is beyond the pale for the state to take secret photos for tax enforcement and then leak them. Campbell's shots were in a public place yet were held to be offensive.
• Court: A claimant may argue that sensitive information should not be deemed public domain just because it is blurted out in court (or even if it does it is still private as public domain is not an automatic defence in privacy, unlike in confidence). Criminal trials are deemed public domain, and although ECtHR is happy for privacy to be balanced with open justice, the latter concept entitles free reporting of convictions and acquittals since trials are part of public life. Civil proceedings are the same, eg whether a coroner's inquest, Law Society discipline or court judgment. Discovery in proceedings can destroy confidentiality. A criminal defendant is restricted in using unused material but anything read out in open court is public domain, although potentially subject to confidence and privacy. Confidence is kept for other purposes in civil litigation but is lost once referred to in open court. A document is referred to even if read silently by the judge, but a party compelled to disclose can request an order restricting publication. If disclosure was voluntary then normal confidence and privacy applies and the courts are astute to attempts to slip secrets into the public domain by crafty insertion in court bundles.

How

The reasonable expectation of privacy depends on the nature of the information, and intrusion and use. It was unacceptable for police to stalk an activist, snap him and store the photo, and the same can apply to a media scrum. Clandestine recording is likely to run into similar difficulty. Zooming in on a subject and refusing are aggravating factors increasing the likelihood of misuse.

Why

Publication is more damaging than photography. Intrusive access might be forgiven but it is publication that does most harm. Even if the publisher did not access information directly, why did it come into their hands? Footballer blackmail cases often involve payments to girlfriends which suggest public curiosity rather than public interest - few affair stories arrive at the NOTW / Mirror / Mail in an anonymous jiffy bag as a 'freebie' to whistleblow adultery. Indeed, the going rate is said to be £50,000 (as long as they are premiership and married, and ideally with a sponsor), which has to come from the footballer or the newspaper. With many earning more than that a week, it is a wonder so many don't settle.

Consent

Lack of consent puts the defendant on the back foot because privacy is about autonomy of ownership of identity facts. The more the defendant had to sneak to get the story, the less likely there was consent. On the other hand, some celebrities imply consent, eg most bikini splash & dash shots with hunky boyfriends are staged, as are many 'holidays', especially, it seems, in Marbella.

How info came to publisher

Privacy does not depend on a relationship and it matters not only what the information is but how the defendant got it. So, bizarrely, it is possible to intrude on privacy by sneaking out information that was already public, eg taking a photo instead of merely describing a public scene. The relevance of a relationship, apart from the contractual implications of any confidentiality agreement, is that it may make it hard for the defendant to argue there was no reasonable expectation of privacy. Leaking confidences between friends has been frowned on. Although confidentiality agreements are usually more relevant to confidence and are not required for a privacy claim, any public interest defence may be insufficient as there is a public interest in enforcing contracts which can be of considerable importance. However, not everything disclosed in a relationship of confidence is private and the relationship can affect the boundary of triviality.

Misuse

Stage one of the misuse test was to show that Art 8 is engaged by a reasonable expectation of privacy. But the claimant still has to show that there is a disproportionate interference with it in that privacy outweighs public interest. So stage two of the misuse test breaks down into proving interference and disproportionality.

Disclosure

Publication

Disclosure to one person is enough to breach confidence, but privacy uses a different test of how much was it in the public interest to say to whom.

Publicity

American case law suggests there ought to be a difference between tipping off an insurer and blazoning an allegation across a shop window.

Identifiability

The reader has to be able to identify the claimant, so although Art is about personal information autonomy (and in New Zealand violation of personal zone by publishing unrecognisable photos is enough and there has been a suggestion in the High Court that violation of personal space is enough), disclosure is not enough as it is not personal until it is identifiable. This is so in confidence and privacy (two cases were claimants were insufficiently disguised. This was more recently and famously alleged in May 2011 against the Daily Mail by the RBS executive in the Goodwin affair. Her counsel noted points of truth in a bio with unpixellated photo but did not seem to realise the innuendo created by the newspaper running an unpixelated photo two months earlier, and was outmaneouvred by the newspaper relying on his admission that some points were false and a judge presumably not wishing to enter the political sphere of refusal to legislate privacy by referring to an Attorney General whose boss had already made his thoughts on super-injunction affair cover-ups known. The ECtHR view is that masking prevents Art 8 being engaged so the claimant does not even get past the first stage of the misuse test, and a genuine stab at masking can provide a defence of proportionality. There is no danger in revealing, for example, that an unnamed football manager got a player's wife pregnant or is a prostitution addict. Theoretically though footballers could be identified as a group, so that innocent players could sue for libel if branded with the same brush as their adulterous colleague by being referred to as a Bloggsville United midfielder, as that narrows the list of suspects. In reality, publishers would have a defence against many players that they have cheated before and so have no reputation left to damage. In Australia it is enough to invite readers to visit websites to unmask the claimant.

Meaning

This is only relevant to carving up a claim between privacy and defamation, and justification of disclosure in terms of being precise about what was disclosed. Probably, given defamation law, the meaning only has to apply to some readers.

Damage

Offensiveness is relevant to, but only one factor in, proportionality. Interference needs to be more than trivial to demand Art 8 'respect'. A defendant may draw on defamation law that publication is not to be presumed from mere appearance online. There could theoretically come a point when celebrities' reputations have become so public and poor that the 'tittle tattle' exemption for trivial facts could cover affairs as it would no longer be any more revealing that a premiership footballer has 'popped out for sex' than 'popped out for milk'.

Rights

Parties

• Living people: Children's privacy now comes from Children Act 1989 s1 or HRA. Since the 1995 case of Re S, the previous case law (including the following) is merely guidance on scope for the HRA balancing test which applies regardless of whether the jurisdiction is family (which might be exercisable despite not being under court protection) or privacy law. They are not guaranteed confidentiality or privacy and must use the same rights as adults with their own right of privacy, with infancy only relevant to the balancing test. It is not invasion to disclose something inimicable to their welfare but not directed at them or their carers. Children may be given more leeway to pick and choose what to disclose when. The PCC are behind Hannover and Murray in considering public places open season for photos showing nothing private, embarrassing or inconvenient. Snapping a day old baby in a private maternity ward is an intrusion on the baby's privacy. The other side of the Art 8 autonomy coin is that a mature teenager has the right to tell her story. Adults lacking capacity can also be entitled to have their say. The right to privacy continues through unconsciousness.
• Dead people: PRs can sue in the name a dead person to enforce their statutory right to privacy after death, eg photos of a dead body. But that does not apply to confidence, which is common law, or to the PCC Code (although relatives may plead intrusion into grief or shock). It is arguable that medical confidentiality survives death. Although the ECtHR has upheld privacy in medical records, it has denied standing to relatives of a dead victims but relatives may have their claim if the victim's reputation affects their own. A privacy claim survives death.
• Bankrupts: A privacy claim survives bankruptcy.

Assignment

Confidentiality (and presumably even more so privacy) cannot be assigned at it is personal.

Non-parties

The court must consider the interests of affected parties such as relatives, staff, charges (children and adults), readers and story tellers. What applicants such as Terry sometimes forget is that the court is forced to consider whose rights will be trampled by virtue of exercising his rights, so it will need to hear from interested parties such as the press for a view on the public interest. The court is dubious of absentees who are relied on but mysteriously have not attended. Girlfriends of wandering footballers are expected to turn up in court or at least furnish a witness statement before they can complain about being outed. Currently applicants get away with relying on relatives' embarrassment (such as children being bullied at school) without bring them with them to court. Interested media must be served so they can make representations.

Publication responsibility

Responsibility follows defamation law, ie participation, procurement or authorisation. Arguably this includes web links. It includes statements made where the maker knows or should have known increased damage would be caused by repetition, or where a confidee leaks to one newspaper and it finds it way to another newspaper. It is a defence to play a purely passive role. Innocent ISPs are exempt from damages can be ordered to remove information. This has included search engines. There is no reasonable care defence.

Limitation

There is non-binding authority that a public authority defendant may argue that the claimant is timebarred by the short limitation period.

Privacy Codes

Introduction

The media have self regulatory codes of conduct, notably the Ofcom Broadcasting Code (Section 8 Privacy) and Press Complaints Commission Editors Code of Practice, to which the courts must have regard in privacy claims. So although complaints to their regulators are a subject in itself, they are relevant to the grant of an injunction against journalistic material as the claimant may be able to argue a reporter has crossed the line and therefore lost the s10(2) freedom of expression argument, as happened in Mosley. In particular the PCC Code bans photos in private places, bugging and pursuit. Or they could come to the rescue of a newspaper arguing it is merely putting the record straight. Such codes probably do not apply to third parties such as sources. Regulators' judgments are instructive but not persuasive. Claimants rarely want to complain to a regulator as, although they are free and quick, they stay the case pending litigation and cannot block publication.

Typical material thought beyond the pale are health, home and contact details. Justification can be crime, health & safety, misleading claims (especially hypocrisy from MPs) and public domain (such as previous publicity seeking, selling stories or revealing similar details).

BSC

Ofcom's BSC requires no unwarranted infringement of privacy. So, depending on the public interest, it is normally unacceptable to reveal addresses, doorstep, secretly record, film on private land or without permission, use information for a different purpose or question vulnerable people on private matters without someone responsible for their care present. Prank calls to innocent members of the public can be expensive mistakes, as the BBC found out in the 'Manuelgate' scandal of 2008 which nearly cost its monopoly after it emerged it had taken money from taxpayers under threat of imprisonment so as to pay Jonathan Ross to ring a former Faulty Towers actor and tell him Russell Brand had 'fucked his granddaughter'.

PCC

The PCC's Editor's Code requires justification of unauthorised intrusions into privacy, such as the subject's own disclosures, and bans photography in places with a reasonable expectation of privacy. It bans hacking, tapping and bugging, but allows subterfuge in the public interest. Justification can come from the public interest, which it says includes freedom of expression and setting the record straight. An example of boundaries is that it was acceptable for the Daily Mail to photograph Anna Ford in a bikini on a Majorcan beach overlooked by apartments, but not for the Sunday Sport to photograph Cilla Black topless in her un-overlooked Spanish villa. Snaps of people in pavement cafes, yachts and churches have been found unacceptable.

Art 12 Balancing test

Art 8 privacy can be waived lawfully (statute or common law) and necessarily (because of a pressing social need to which the response was proportionate) for a legitimate aim of national security, public safety, national economy, crime prevention, health, morals or rights and freedoms of others. The latter freedoms are what are usually pleaded by defendants, normally Art 10 freedom of expression. Since the Human Rights Act 1988 the starting point is this balancing act, rather than the old public interest test. The government is bound to protect privacy between individuals and has a margin of discretion to balance interests. The Human Rights Act gives horizontal effect to the ECHR through s2 which requires English courts to have regard to ECtHR jurisprudence and s6 which requires them to act compatibly with HRA.

Proportionality

The first question is whether the defendant should know there is a reasonable expectation of privacy. This is highly fact dependent. The publisher's conscience should be governed by what is a proportionate interference with human rights. The court must have particular regard to freedom of expression, regardless of public interest, and where the respondent alleges journalism, must have particular regard to the public interest and privacy codes (which can bind the press). The PCC Code says the public interest includes freedom of expression, impropriety, health & safety and putting the record straight. The press have reasonable lattitude, so a reasonable believe in proportionality may trump privacy.

Art 10 weight

ECtHR case law is incorporated into English law, and should be followed, unless conflicting or wrongly decided. The key rulings are that:

• the press must be free to act as public watchdog on matters of public concern (as opposed to in the public interest)
• the starting point is freedom of expression, restrictions on which need justifying by convincing establishment as strictly necessary)
• where privacy is the justification, the question is whether disclosure could contribute to a debate in a democratic society or contribute to a debate of general interest, and being a public figure in a public place does not justify disclosure to satisfy curiosity.

The right to impart

Wrongdoing

Post-HRA it is easier to justify disclosure other than to an authority. The press is not a police force and so is entitled to let the public reach its own conclusion. Widespread corruption, for example, may justify publication of extracts from a secret report. Bribes, siphoning off of assets for boyfriends from the UK's biggest company or antisocial behaviour may justify revelation to the public, but (in some cases) not crimes nobody wants to prosecute.

Right of reply

The PCC Code can allow one party a right of reply if the other goes public on a relationship. One party to a relationship may be entitled to speak out, whether a prostitute or girlfriend. This does not extend to confidantes or unnecessary details.

Right to know

Art 10 gives the public a qualified right to know. The courts particularly recognise the importance of freedom to discuss share politics, education (including cautionary tales) and art, but not political views of royals. At the other end of the scale are WAG tittle tattle and celebrity gossip. A genuine public interest in what is more than tittle tattle may suffice and contribution to political and social life of the community will suffice. Of course, the claimant may have lost their right to privacy by their behaviour or a right to criticise.

Sources

A journalistic source may have to lose their privacy to protect the privacy of a patient whose medical records they leaked.

Putting record straight

The press are entitled to give the minimum necessary details to set the record straight if a public figure is misleading the public about their private life, eg that they are not a drug addict yet are in rehab or happily engaged yet are cheating, or selling a fake image. The judge in the Mosley case said he would have lost had the allegations been true.

Public figures

The English Court of Appeal's ruling that public figures may have less privacy and 'of public interest' may overlap with 'in the public interest' should override the ECtHR's ruling that public figures do not have less right to privacy unless to an extent for politicians, although the Court of Appeal has clarified that it depends what privacy the celebrity has waived. Role models can only lose privacy rights to the extent they asked for the status.

Public criticism

The public should be free to criticise conduct as wrong, eg cheating footballers (although that does not justify naming the girlfriend or giving details), because it could contribute to public discussion and thus develop public opinion.

Freedom of expression

Freedom of expression is in the public interest, so can justify disclosure not itself in the public interest, eg innocuous medical conditions.

Profit motive

Profit motive can increase the reasonable expectation of privacy , eg, blackmail where freedom of expression is extinguished, or prehaps reduce it if it is the claimant trying mainly to protect their brand,) and reduce the weight to be given to freedom of expression. Thus it may be permissible to tell friends and advisers but not chequebook journalists.

Art 8 autonomy

Just as a party may have a right to privacy, another party (perhaps a footballer's girlfriend) may have a right to disclose, especially to correct an accusation of blackmail. It may extremely difficult to convict such a person of contempt if at trial they prove, for example, that alleged texts demanding money never existed, as the court is bound by Art 6 to balance the contemnor's reputation against respect for court orders.

Other Convention rights

Reporting restrictions in court should be exceptional.

Non Convention rights

These cover the same ground as the old public interest cases on public safety, crime prevention, public health (OK to name employer of doctor with AIDS but not name the doctor), morality (people should be allowed to criticise adultery. 'Indisputable imperatives' (pressing social needs) are also covered.

Degree of disclosure justified

Editors are entitled to a reasonable range of decisions given what they ought to have known, considering what is a necessary and proportionate restriction on freedom of expression versus privacy. The fact of an event is easier to justify than the sordid details. The court may ask whether there was already enough information in the public domain for public discussion, eg it may be OK to reveal someone is in therapy but not to splash details and photos. The more intimate the aspect of private life the less can be be disclosed before it becomes intrusive. Greater disclosure may be justified if there was some kind of consent, or the claimant has disclosed similar information or similar information is in the public domain, eg a known gay affair can be reported but not the details.

Burden & degree of proof

It is for the claimant to show he will win his right to privacy, and usually therefore that the defendant will lose on freedom of expression. Technically the HRA requires an inquistorial approach by the judge so parties do not have to prove anything.

Defamation vs privacy

Although the traditional definition of defamation is to lower the claimant in estimation or exposes him to hatred, ridicule or contempt, Art 10 should now be used to protect freedom of expression with a new definition of substantially adversely affecting attitudes.

Occasionally aggravated damages can be awarded in defamation for invasion of privacy running to hundreds of thousands of pounds, compared to an averageb of more like £3,000 in privacy claims. But claimants have less need to claim defamation now that misuse of private information has removed the need for a pre-existing relationship, as is required under the law of confidence. And they may have less wish to use defamation now that defendant are entitled to adduce evidence of relevant misconduct.

Truth

Truth absolute defence policy

The big problem a claimant has is that truth a complete defence, no matter how intimate or historic (although a defendant cannot pretend the present means the past).

Art 8

A claimant is entitled to his reputation under Art 8 and a defendant is entitled to his freedom of expression under Art 10.

Disclosure

The first thing a defendant will want is disclosure of all incriminating documents, but the claimant may be able to resist, relying on breach of privacy under, third party sources or health, unless the defendant's Art 8(2) argument wins the day.

When truth not absolute defence

The claimant has the protection of the Data Protection Act 1998 and Rehabilitation of Offenders Act 1974 (if malicious or outside admissible evidence in court proceedings). Disclosure of a spent conviction does not however engage Art 8 or breach confidentiality. Using confidence to prevent proof of truth emerging goes back to the nymphomaniac Duchess of Argyll in 1967.

Prior restraint

Freedom of expression

Claimants will classically try to avoid defamation where the allegation is true or they want prior restraint (which is not available if the defendant pleads justification, eg fair comment, privilege or non-defamatory meaning), ie an injunction. Prior restraint is impossible for two other reasons: Fox's Libel Act 1792 (which entitle the jury to consider defences) and Art 10 freedom of expression. Even without a jury the same rule applies in malicious falsehood. This 'rule in Bonnard v Perryman is what would have stopped John Terry's injunction even if he had any evidence. The rule pressurises claimants to admit the truth of allegations so as to stand any chance of getting an injunction, where damages for libel would not compensate loss of sponsorships, etc even if the allegations were mainly false. Leeway used to be given in confidence claims around the rule where a defendant threatens marital confidence or has bugged the claimant, but now the HRA would apply. The claimant can choose if he is entitled to several claims, unless blocked by the overriding objective. The test is whether the claim is to protect reputation and if the claimant fails the defendant wins a plea of abuse of process.

Non-defamation claims

Whereas the pre-HRA test for getting an injunction is 'real prospect' now claimant have to clear the higher threshold of the s12(3) balancing test, which usually means 'likely to succeed'. Even if defamation is not claimed, if the claim is really about reputation then applies, as it famously did in Terry.

Priority of freedom of expression

ECtHR jurisprudence allows for prior restraint, so it is possible that one day we will see defamation injunctions. Criticism affects identity and integrity and so affects private life in some cases. Serious impact on reputation and relations can enagge Art 8.

Falsehoods

Privacy protects truth, falsehood and even complete fabrications. Truth is only relevant to freedom of expression, ie falsehoods remove the public interest justification for breaching a reasonable expectation of privacy. A claimant does not have to say which bits of a story are true. If a disclosure is true, private and defamatory then whereas under pre-HRA defamation law the court would have refused an injunction under Bonnard v Perryman, now it will check if there is an abuse of process and if not then will proceed to the s12(3) balancing test.

Journalistic privilege

It is in the public interest to protect sources, perhaps even regardless of source and publication, because although some sources are worthier of protection than others (eg, bad faith or falsification), trivial sources must be protected today to encourage serious sources to come forward tomorrow and sources' conduct is never decisive, but is subject to the balancing test as it is also in the public interest to protect privacy. Of course, a journalist will not want his source as a witness to explain his good intentions.

Common law

Newspapers

Newspapers are not exempt from Norwich Pharmacal (sources disclosure) orders. In retaliation for being overruled in British Steel, Lord Salmon brought forward what is now Contempt of Court Act 1981 s10.

Witnesses

Journalists are not immune to questioning as a witness.

Norwich Pharmacal

An applicant can apply for an order for disclosure of sources from anyone mixed up in wrongdoing, but not against witnesses (although the law could change).

Statute

General

Contempt of Court Act 1981 s10 absolutely publishers from disclosing sources unless probably necessary (a compelling case to waive the public interest in freedom of expression to satisfy a pressing social need, really needed, more than useful but not necessarily indispensible and proportionate (there is no other solution), the applicant has exhausted his own searches for the source before running to court and it would affect the fairness of the trial) for justice (protection against serious legal wrongs, although having no case without it is not justification), crime prevention (eg discouraging crime generally, such as blackmail, unless the true purpose is something else, such as protecting sponsorships) or national security. Even then, disclosure is at the court's discretion, which although sometimes merged into the public interest balancing test, will rarely be granted in interim proceedings as the full facts at trial are needed unless perhaps the trail will go cold otherwise, and would anyway be subject to passing a high test as a mandatory injunction.

Application

It applies to publishers, and perhaps editors and collaberating sources, but not unmoderrated ISPs (like Blogspot or Twitter, who are free to name users). It covers anything received for the purpose of publication, including photos. An applicant may try to get a journalist on the witness stand so if he refuses to answer questions he can be held in contempt with no right of appeal. The applicant need only prove a chance of discovering the source, which is thought to mean a reasonable one. Once the applicant has the protection of an injunction he cannot expect to secure an order for disclosure to unmask leaks and leakers on the periphery. Such an order was refused by Eady J on 15/05/11 in CTB v NGN when Ryan Giggs dug himself deeper by accusing Kelvin McKenzie of masterminding leaks to Tweeters and requested a raid on his emails.

Defences

Consent

Consent is a defence, but must be more acquiescence or attitude, must cover the extent(eg publicity porn shots by consent, disclosure of medical records to a public enquiry, or knowledge of an affair by a circle of 25 friends is different to a newspaper) and substantial subject matter of publication, and typically needs written evidence, with implied consent viewed suspiciously, although the defendant need not know of the consent. If no consideration is given then consent could be withdrawn unless the defendant relied on it. Past consent on related subject matter can prevent injunction by removing reasonable expectation of privacy. Secret filming is a particular problem where broadcast nationally as it means a fake reason has been given.

Waiver

This has to be voluntary, informed & unequivocal. Putting similar information into the public domain could be enough but has to be considered case by case as it does not trigger loss of all protection but affects reasonable expectation of privacy, public interest and balancing privacy with freedom of expression. ECHR proportionality trumps such waivers.

Estoppel

Theoretically the claimant could give permission and the defendant relies on it to their detriment so that it is inequitable for the claimant to complain. For example, a footballer might prove extreme harm and ability to reimburse a newspaper for changing the front page.

Change of position

The defendant could say they spent a lot of money buying the rights in good faith without realising the confidentiality and were not served with notice of the hearing, but expenditure on rights does not count for much.

Innocent publication

The question is what ought the defendant to have known about the claimant's reasonable expectation of privacy. Information society service providers have a mere conduit defence. Cachers and ISPs need merely remove data when warned.

Public domain

Repeat publication can invade privacy. Public domain means a substantial number or more than some people knowing it. Knowledge by 25 or even 90 friends has not removed confidentiality. The information must be known, not just accessible or on specialist websites. All the facts must be public. The particular and not similar information must be public. One could argue it is possible to accidentally sell the rights to a marriage's secrets by persistent publicity of intimate details but the modern view is that each fact is assessed separately. The court will not play King Canute. Splashing an "exclusive" is evidence of previous absence from the public domain. Publication abroad might not destroy confidentiality here. Even circulation in newspapers might not be public domain, and circulation in newspapers might not justify repetition on TV. Certain readers or categories of readers might not be enough despite being mentioned in The Times. An injunction might cover the UK despite the information being available on the internet or abroad or having been widely available available historically. In family cases protecting children from being identified from jigsaw the combination of disparate data could create new data. Addresses of criminals can cross the boundary. Passage of time could remove information from the public domain, especially photos unless the exact ones are in the public domain. Right to privacy is not lost with secrecy. Raking up old events or 'before they were famous' photos may be an invasion.

Immunity & privilege

There is no defence of the privilege available in defamation. Parliamentary privilege has been defended from attack in relation to libel by the ECtHR. Fair and accurate reports of it should get the same privilege as for defamation. Legal proceedings privilege works by court disclosures removing reasonable expectation of privacy. Litigation privilege exists between client and solicitor. Public records are privileged.

Public interest

Before the Human Rights Act 1988, the starting point was to compare the public interest in upholding confidence with the public interest in disclosure. This case law is still potentially persuasive but not binding. It has been suggested that outcomes will be much the same, although defences should be widened to match the wider scope of Art 8 privacy compared to confidence, as has happended with the extension of public interest. In other words, where the public interest argument would have prevailed over confidence, now it will be seen as freedoms of others override the right to privacy.

The public interest may narrow the scope of confidence, stop it existing in the first place or justify refusal of an injunction, leaving damages only. There is a difference between what is of public interest (or in a newspaper's interest) and what is in the public interest.

It is always a defence to have just cause or excuse.

There is no confidence in iniquity, which covers, crimes, frauds, misdeeds (breach of statutory duty and civil wrongs) and destruction of public welfare disclosure of which is in the public interest. Suspicion might not be enough. Misbehaving pop starts on a plane has been deemed iniquity. Adulterous lesbianism or gambling and debts are not iniquity. Immoral conduct must be gross immoral conduct to be iniquitous. Something less might still however prevent confidence arising.

Confidence is waived in the vital public interest. This includes:

• public health and safety such as circulating psychiatric reports between authorities to prevent violent attacks, but not doctors with AIDS and less so once the danger is over,
• public welfare, such as releasing suspect mugshots, tipping off whereabouts of paeodophiles, Solicitors Accounts Rules and bank fraud tipoffs
• administration of justice
• scrutiny of authority, such as hypocrisy of ministers, but not machinations of ministers or mismanagement of nationalised industry
• setting the record straight
• cautionary tales, such as revealing pop start in drug rehab.

But the disclosure should be to whoever it is in the public interest to know, which might only be the authorities, such as the police or a regulator or HMCR.

The burden of proof on the defendant is either a prima facie case based on a credible allegation from a reliable source or balance of probabilities.

Responsible journalism

There is an emerging extension of the post-HRA Reynolds libel defence of responsible journalism to privacy, encouraged by the merger of some media law principles required by the fact that Art 8 covers reputation as well as privacy. This could effectively extend 'in the public interest' to 'a topic of real public interest or concern'. This is evidenced by acknowledgement of a journalistic lattitude 'honest belief' defence, although it has been resisted and taken to be only a factor, for example in a case where lawful conduct was held to be nobody else's business. Conduct does not have to be criminal to contribute to a debate in a democratic society. Journalistic lattitude covers how much to disclose and arguably whether to disclose.

Privacy injunctions

Introduction

The court will not ban republication of what is in the public domain, eg widely accessible on foreign websites, unless perhaps an undertaking against fresh intrusion by photos is refused. Injunction is more likely against photos as damages is less likely to be an effective remedy.

Interim

Competing factors

The court balances effective remedy against prior restraint.

Jurisprudence

The presumption is that prior restraint robs news of newsworthiness and so applicants should sue for libel or invasion, unless there are pressing groundsafterwards. Prior restraint must be justified even if not in the public interest to publish. The test is now Art 8 privacy versus Art 10 freedom of expression and the scales start level. Freedom of expression is determined on a continuum from democratic debate to WAGs. Applicants may try to circumvent the rule against prior restraint of libels (which might be defended) by alleging breach of confidence.

Preliminary considerations

Cause of action

Misuse of private information

Might be possible even if information is false.

Breach of confidence

Dissemination of private information is subject to a test of whether it is in the public interest to publish versus uphold a confidentiality agreement.

Sufficient threat

There must be a real and immediate risk. The injunction must specify what must not be disclosed. The defendant does not have to reveal what he plans to publsh and may head off an injunction by an undertaking not to publish without warning. The applicant must prove intent or threat.

Preliminary procedure

Precision

The defendant must be clear what he would be imprisoned for publishing.

Persons unknown

As in the 'John Doe order' in the Harry Potter leak, the applicant must describe the defendants who must know who they are after advertising or alternative service. Courts dislike attempts at blanket bans with no chance for parties to speak against it, and may refuse an injunction if an obvious interested party is not notified.

Contra mundum

The order can be against the world. It should only be used to protect life and limb, but has been used to prevent embarrassment.

Notifiying third parties

By serving third parties, eg newspapers, after obtaining the order, the applicant avoids tipping them off of a juicy story whilst putting them on notice to invoke Spycatcher contempt jurisdiction. This tactic can backfire, as in Terry, if the courts is unable to decide whether the applicant is likely to succeed at trial without hearing the counter-argument from the press.

Falsity

An order might be refused if the applicant, fearing disclosure of witness statements and confirming rumours, refuses to admit truth or public domain and the defendant opposes. False speculations are covered but open the applicant to allegations of abuse of process, and truth affects the public interest. Concerns about witness statements can be resolved by confidentiality agreement.

Public hearing

The hearing should normally be public.

Sealing the file

The public are normally entitled to statements of case and public orders and can ask for the file. Files should rarely be sealed - the solution is anonymity and transferring secrets to a confidential schedule of the order.

Hearing papers

Can be locked down by Contempt of Court Act 1981 s11.

Superinjunctions

Long history includes the Liberal MP in the Paddy 'Pantsdown' affair - discharged after cover blown by a Scottish Newspaper, Giggs-style, and Morgan-Grampian. The correct use includes prevention of tipping off to stop destruction of evidence or rushed publication to pre-date contempt jurisdiction, before service or return date.

Jurisdiction & principles

Jurisdiction

The power is in Supreme Court Act s37(1) and CPR r25,1(1)(a), capped by Human Rights Act 1988 s12(3) freedom of expression.

Defamation

Reputation is part of privacy. The courts are alert to abuse by labelling circumstances as one cause of action when really they are another. But the real test is whether damags are an adequate remedy.

Threshold test

Publication must not be restrained unless the applicant is likely to win at trial. However, the bar is set lower than 50% for an emergency injunction pending the return date or appeal, or where damage would be severe. This 'proportionality test' is first, whether the applicant has a reasonable expectation of privacy, and second, the degree of intrusion and public concern.

Balance of convenience

Even if the applicant wins the threshold test, he must still pass the usual test for interim injunctions, that it would inconvenience him more to suffer disclosure than the defendant to be restrained, but this is easy if injunction is the only effective remedy, as damages cannot unpublish a secret. Whereas photos of children (such as the Harry Potter author's child) might be intrusion, photos of adults out and about (such as a bald Elton John) are unlikely to justify an injunction.

Confidentiality agreement

A confidentiality agreement (as as between a model and her PA) could carry more weight than a statutory duty as it can be in the public interest not to break a contract.

Injunction only effective remedy

Privacy protects dignity, autonomy, respect and dissemination. Damages are often useless, as they are too low and can never be enough, the damage is not only done, as confidence is like an cube which melts if not refridgerated, but worsened by the publicity of a trial, and an injunction is now seen as the only remedy.

Journalistic material

For journalistic material the court must consider the extent of public domain, public interest and privacy codes. Being in the public domain does not mean privacy cannot be harmed, especially by photos, unless past the point of no return. Privacy codes include a newspaper's internal code and Press Complaints Commission Editors Code.

Equitable defences

The defendant can argue that the applicant does not deserve the equitable remedy of an injunction because he delayed, acquiesced or does not have clean hands (previous dirty tricks might not be enough).

Full & frank disclosure

Courts are astute to defendants making dubious allegations that applicants have hidden relevant circumstances.

Cross undertaking in damages

The applicant has to show he will reimburse the defendant if the injunction is lost at trial. This could include stopping the press, and, humiliatingly, lost revenue from advertising and syndication of an 'exclusive'

Written reasons

Interim judgments should be detailed enough for an appeal and to help interested parties decide whether to apply to vary or discharge.

Exemplary damages

Not available, thus the wish by applicants for prior restraint against newspapers who can make millions from publishing compared to a few thousand in damages. But by not asking the applicant for prior comment, the newspaper may imply it knows the information is confidential, leading to the risk of exemplary damages if a court decides to invent such a right, as requested by government.

Final

Remedy

A perpetual injunction is virtually inevitable at trial if the applicant wins.

Public domain

Even if information is in the public domain, repetition might be sufficiently intrusive, especially if photos, to justify refusing a public domain proviso.

Procedure

Who

Joinder

If there is an impractical number of claimants they can form a company and assign their right to sue to it.

Identifying defendants

The claimant may apply (and must pay for) for pre-action disclosure by a third party, eg ISP to name a user as long as he can prove the third party is mixed up in wrongdoing. It is not so easy to get disclosure from the media as they may rely on journalistic source privelege. As in the Harry Potter case, the court can make a John Doe order against 'persons unknown' as long as it can describe them so that they know who they are and nobody else is caught, and it can be brought to their attention and not left sitting on file. Courts are increasingly treating contra munde orders (against the world) as a standard solution to Buffham (contempt of court ceases to apply to non-parties once the injunction is made final).

Non-parties

Due to the court's duty to balance human rights it cannot make an order without interested parties having a chance to speak. Non-parties who could also sue ought to either on their own or by joining, or give evidence, even if it is by undertaking after the hearing.

The court should consider the media's freedom of expression, the public interest and interested parties' rights, eg their right to tell their story whilst respecting the claimant's privacy. A claimant who plans to ambush the press by Spycatcher (criminal contempt jurisdiction) service after the hearing to avoid tipping them off runs the risk of walking away empty handed, as the court may want to hear from the press, especially those who have shown an interest in publishing. Defendants may have to threaten to have a private chat with potential witnesses and wives, etc unless the people the claimant relies on join or give evidence rather than hiding behind hearsay.

How

The first step for the claimant is to negotiate with the publisher's staff lawyer and ultimately consider asking them to spike the story (to avoid becoming a defendant) or the ISP to remove the information (to avoid losing its Ecommerce Directive innocent publisher exemption). If he can also get undertakings then those publishers can be forgotten about if they no longer intend to publish, otherwise they will still need to be served with notice of any the hearing. Anyone who refuses an undertaking or gives one but still wants to publish will also need to be served with notice of any hearing. If he is still worried about disclosures from anyone not promising not to publish then he still needs an injunction with the relevant publishers made a party or served with the order. Trying to negotiate with the whole of Fleet Street on Friday night may be too little too late or may simply tip off media who did not know what they were not supposed to know. They could then publish without being in contempt and merely with a risk of a few thousand damages (the going rate is £3,500 for a drug rehab shot and £60,000 for a BDSM orgy video) plus costs (about £40,000 per full day) only about equal to what they would have had to pay for the story anyway. However, anecdotally, kiss n tell stories don't sell, so are rarely worth fighting for. Defendants will be queueing up to argue that due to their own, a competitor's or anonymous leaker's story the cat is out the bag and the game is up and so the court cannot be asked to play King Canute. So the answer is often to run to court sooner rather than later.

Where

As County Courts do not have equity jurisdiction or media judges the safe bet is to go to the High Court Queens Bench Division Jury List. The worst that can happen is the defendant will argue that the claimant was never going to win more damages than the County Court limit and so costs should be on the County Court scale. The duty is probably to go wherever is quickest and cheapest. There is also the advantage at the RCJ of being able to run upstairs for permission to appeal.

How

Preliminaries

Claim

The starting point is that claim forms, statements of case (claim and defence) and orders are public. The claimant may tuck secrets in a witness statement instead, but without directions to the contrary before defence or acknowledgement of service, the defendant can blow the gaffe by replying to everything in its defence.

Sealing

So claimants will often ask the court to seal the file, so that anyone wanting a look will have to apply for permission. The Claimant will without notice give a Master (judge) disclosure of arguments for and against such order. Redaction is preferred to disappearance. Normally all that is possible is sealing a confidential schedule containing the names and secret.

Anonymising

As well as sealing the most sensitive documents or redacting the rest, and an order that nothing may be disclosed beyond the contents of the order, the parties can be anonmyised. Anonymity can be needed because even if sensitive information is moved to a sealed schedule, that leaves the names on the claim form and statements of case, gist (or room for speculation) and addresses of the claimant or his solicitor (whose town might narrow down guesses) and that of the defendant (whose being a publisher or model, etc may send tongues wagging). Then there is the risk from public judgment. Clues in references to previous litigation or newspaper names and dates can help give the game away, even if the court allows representations on it before publication.

Claimants: The court has plenty of power to anonmyise documents. Or it can even allow a false name. Defendants: Anonymity will often be needed for the defendant to avoid jigsaw identification. Non-parties: The court can use inherent jurisdiction or HRA to anonymise non-parties such as wives of blackmailed footballers.

Time is of the essence, as although it is possible it is difficult to get anonymity after a public hearing, so application for anonymity should ideally come before application for injunction. The defendant is entitled to notice of the application, a note of the hearing and notice inviting him to apply to set aside or vary.

Interim injunction

Timing

The defendant must be served 3 days before the hearing unless urgent or necessary for justice. The court will expect a draft order and copy on disk and ideally at least drafts of an application notice, claim form, witness statement and skeleton argument. The application notice will usually be an N244 or RCJ version which is PF244, and goes to the Listing Office in Room WG5. The application can in extreme urgency be by phone. Outside hours the claimant's lawyer rings the Security Office on 0207 9476260 and clerk to the duty judge will call back to get names, phone numbers, nature of claim and explanation of urgency. If an order is made by phone then the court will expect the application and evidence and two copies of the order the same or next working day for sealing by Queens Bench Associates. The judge will usually expect a faxed (or he asks, emailed) draft order unless he decides to hear it in court. A without notice injunction will usually last for a week before it expires and the applicant must return to justify extension. The procedure is in the Queens Bench Guide.

Undertakings

The applicant will become contractually obliged to issue proceedings, compensate the respondent and anyone intended to be served or notified (or anyone court specifies) for loss caused (expensive if a newspaper has gone to press), verify facts, serve the claim form (taking reasonable steps to serve or notify persons unknown for a John Doe order), application and order and provide a note of hearing (to anyone affected or on request to anyone served who does not oppose).

Affected persons (who the applicant intends to serve or notify, eg for Spycatcher reasons) must be served with everything the judge read. The court can order that such disclosure is subject to the non-parties giving a confidentiality undertaking, otherwise the applicant is still protected by an implied duty not use for a collateral purpose.

Order

Title: The interim order is to be headed 'the Claimant and Defendant in an Intended Action' (or 'In the Matter of' if contra munde). Names may need replacing with initials for anonymity or description for John Doe orders. The applicant will probably want a private hearing and so will label it 'Before Justice [Sharp / Eady / Jugendhat, etc] Sitting in Private'. Restraint: The order must tell the defendant exactly what not to do and must specify what is confidential. The court will expect a public domain proviso, for what is either already public domain or becomes so, to avoid King Canute accusations. If a party was not notified then it needs a return date so they can make representations, unless they are aware of it and do not oppose it. The applicant must tell the court of any defects in notice. Reporting restriction: Without a restricted reporting order anyone is free to disclose from a private hearing. Ancillary orders: The applicant may also want an order banning collateral use of the application bundle. If leaks are to be traced then a disclosure order may be needed and perhaps a super-injunction to prevent tipping off in the meantime. Particularly if a party is on notice, the court may be willing to order disclosure of sources in the interests of justice despite journalistic privilege or to order a party to pass the order to whoever its sources. A preservation order may be useful to discourage the evidence trail from disappearing, eg if a newspaper if suspected of leaking to Tweeters. An order for delivery up might help tighten the net, eg for negatives. Search orders are a possibility, but were famously refused in TSE v NGN in May 2011 when Schillings suspected Kelvin MacKenzie of leaking from The Sun to Tweeters. Penal notice: Any defect in this kill any chance of a contempt prosecution.

Notice

• Court: Urgent or without notice applications still ought to be made 2 hours before the hearing.
• Respondents: Normally three clear days notice must be given. Short notice might be justifies but without notice applications are only for good reasons such as exceptional urgency or overriding objective (or even exceptional circumstances only). HRA s12(2) prohibits without notice injunctions against absent respondents unless all reasonable steps taken to notify of application or compelling reasons (eg rushed publication or leaks) against notification. If the compelling reason is not secrecy short notice is required. If the respondent is 'persons unknown' then the court will expect to hear on public interest from the press, even the respondent is abroad and the applicant simply wants to muzzle the English press (who will pick it up online anyway) by Spycatcher notice, and from whoever it is intended to serve (unless perhaps there is a compelling reason, it is impractical to notify or the interested party does not care). The applicant's argument against notification of application is that the press can apply to vary or discharge minutes later once served with the order. A claimant arguing that nobody needed to be served with notice of the application because nobody has shown interest in the story risks his case being thrown for lack of threat. The applicant's problem is doubles by the fact that publishers do not have to disclose whether they plan to publish.

Evidence

The applicant's witness statement will have to explain why if notice not given, why ancillary orders such as anonymity are justified and must explain a threat. The court can by order accept evidence orally instead.

Disclosure

Regardless of notice the applicant must give full disclosure, ie including facts against granting the order. Publishers are advised not to dredge up every last instance of a celebrity's self-publicity, but rather to give relevant examples of similar or selling information. This can be dealt with in the skeleton argument. The applicant must disclose all material facts he does or should know and that includes drawing to the court's attention evidence, law and procedure counting against him. Failure is a ground to refuse the order or discharge it, although discharge will not happen if the damage to the applicant outweighs the procedural defect and courts are alert to respondents making weak allegations of non-disclosure. If there is nobody to speak for the press then the applicant will need to walk the judge through a cuttings and internet search of publicity. Because truth affects public interest the applicant should disclose which bits of the story are true.

Hearing

Application for a private hearing will need evidence of proportionality and interests of justice, plus harm to a child, confidentiality or the object of the case.

Service

If the respondent is elusive the applicant must make best endeavours to serve, failing which asking a publisher to pass on to its source may be an option. The applicant has to the gamble of either not serving parties who are then free to publish if they know, or serving them which means they are entitled to the evidence (which they might not have had even if they did know) and to apply to set aside or vary. Realistically, service only keeps the honest honest and facilitates leaks from organisations tired or being bullied by a particular celebrities lawyer or dictated to by their PR.

Summary judgment/strike out

It is next to impossible to deliver a pre-emptive death blow to an application or defence due to the need for an intense focus on the competing interests and the court's attitude that most arguments are arguable. Exceptions have tended to rely on copyright or heirs to the throne or blatent spoilers.

Case management

The applicant may want an order that the prohibition on collateral use continues after being referred to in open court (or detailed in a public judgment) and that certain documents should not be read or referred to aloud. A publisher respondent does not have to disclose documents which themselves identity their source, but does have to disclose (list) documents even if they contain the source, and can claim privilege from inspection, perhaps by redaction, leaving the applicant with the option of applying for an order for inspection overriding publisher's privilege. The discloser or owner can apply for an order prohibiting collateral use. A third party worried about being named in someone else's document has no standing under CPR, but can instead apply under HRA to protect his privacy. The court can always use its inherent jurisdiction to protect interested parties. Witnesses must give names and addresses in witness statements and their name when they testify, but can apply for an anonymity order (as famously used for the Mosley women). Witness statements are protected from collateral use until used in a public hearing, during which anyone can come in and read it unless the court redacts or seals it. A respondent may pressurise the applicant into watering down the order by applying for speedy trial to potentially minimise the length of Spycatcher protection - most applicants hope there never will be a trial.

Open justice

Intro

ECHR Art 6 requires public judgment, and a public hearing unless strictly necessary for private life or justice. The court must have regard to Art 6 and the rights of the press and public. The presumption is that a hearing must be public unless, inter alia, it would defeat the object, breach confidentiality or derogation is necessary in the interests of justice.

=Overriding principle

Justice must be administered in public - embarrassment or unsavoury evidence is no excuse. A public hearing is required unless it would deny justice. Public hearings are needed to discourage witnesses from lying. A hearing in chambers is no use to an applicant in itself as the respondent can publicise it. As far as ECtHR is concerned, because pre-trial hearing are not determinative an applicant could agree with the respondent to opt out of a public hearing (perhaps for payment), but English courts are stricter on open justice and may ignore that on the grounds that parties cannot waive the public's rights, especially as with applications for privacy injunctions the pre-trial hearing usually is determinative and nobody wants a trial. However, until the HRA and Woolf reforms pre-trial hearings like interim injunctions were held in chambers, but now they are usually in public. Rather than private hearings, the court can more easily grant anonymity. The applicant may want to protect the courtroom, documents, proceedings and material disclosed.

Courtroom

The presumption is that the public are allowed in until there is no more space. The public are entitled to a copy of a judgment after a public hearing. The public are entitled to know what happened in a private hearing, so reporting restrictions are the applicant's main conern.

Hearing types

A hearing can be public or private. If private, it will either be in chambers (private, reportable unless secret under Administration of Justice Act 1960 s12(1) and to which the public can apply to attend) or in camera (secret). The court does not have to make special arrangements to fit the public in.

Documents

CPR

The public are entitled to see public orders and judgment, and unredacted and unsealed statements of case (claim, defence, etc) (which can be request by a party or anyone identified in the statement of case (such as a mistress), but not applicaitons or evidence, once there is an acknowledgement, defence hearing listed or judgment. The respondent may argue that the public need to see a private judgment to correct misconceptions, for example, a respondent might argue, over whether or why people can use courts to hide the truth from their own family. A third party can always apply for a copy of any document and the court might ask affected parties for representations. Courts are unlikely to restrict access to the documents referred to in open court or read by the judge, and in any event restriction must be necessary and proportionate and subject to the Re S balancing test. The court can seal the file or redact disclosures so that non-parties would have to apply on notice to who requested restriction. Rather than seal the file the court is more amenable to anonymisation and confidential schedules containing names and allegations. Availability continues after the case, although age may justify withholding. Access will usually be granted if a document was referred to in open court or read by the judge. The rule that a party may not make collateral use of a document lapses once referred to in a public hearing, but a party can apply for restriction on it. Witness statements are open to inspection during trial unless the court seals or redacts them or on grounds of inter alia, confidentiality or interests of justice (including interests of third parties). Defamation might be a ground to restrict a witness statement.

If the court did not disallow the usual tape recording then anyone is entitled to buy a transcript.

Art 6

Art 6 requires public judgment, although this does not have to be read out - it can be put in a registry. In England, privacy judgment other than superinjunctions end up on Bailli within a few days.

Waiver & dissemination

Although the public have no right to inspect other documents, a party may publish them, unless to do so would put him in contempt of a restriction on the file.

Private hearing reporting

AoJA1960 s12

This restricts publishing of information about private proceedings, such as evidence or the court file, even extracts or summaries. The court can order a private hearing to protect administration of justice but should first consider whether a public hearing would suffice if material is not referred to in open court. The court can allow the press or members of the public with a direct concern to remain. Although the hearing is private it is presumed reportable. Reporting a private hearing is only contempt if in defiance of a reporting restriction (fair and accurate reporting is no defence), or exceptionally if designed to unlawfully sabotage the case. Even then, it only protects document and information created for the proceedings, not what already existed or was created for another reason, and disclosure may be justified by court permission, passage of time or changing circumstances. The court's main power to restrict reporting, in the absence of a clear common law power, comes from Contempt of Court Act 1981 s11 when it sits in private and thus 'withholds a matter from the public'. The court can prohibit disclosure of what was withheld from the public in court. Common law defences are available. The court can waive restrictions after weighing privacy against disclosure.

Publication is as for defamation, ie to another, and covers even disclosures to MPs.

Proceedings in chambers

The two risks to a reported publishing a hearing in chambers are first, that he might accidentally commit contempt by sabotaging the case (which could apply to any case or hearing) and second, and more dangerous in privacy cases - which can include falsity, that he has no defence of qualified privilege against defamation.

Proceedings in private

The court can clear the courtroom to protect confidence and justice or prevent the object of the hearing being defeated or even on wider grounds. It is obviously easy for an applicant to show all three grounds, and so that his application should be private to prevent the very harm being done (eg threatened by blackmailer) that he seeks to avoid. This CPR goes wider than Contempt of Court Act s12 or Scott v Scott and appears to breach Art 6, although applicants will point out that it is now the law of the land until the Court of Appeal says otherwise.

Reporting restrictions

• AoJA 1960 s12: Private hearings whether deemed or in camera or in chambers have their file and proceedings protected if s12 ordered, although publication of orders need a specific prohibition. It is acceptable to report the fact of the hearing, names, addresses and photos of parties (and witnesses), nature of dispute, the order, and publicly discuss the issues not using the evidence. It is allowed to publish information or documents not prepared for the proceedings as long as they are not referred to as being in the proceedings. Summarising issues is allowed whereas summarising evidence is not. Even speculation might be contempt if not acknowleged as such. Breach can be a civil contempt by flouting an order or a criminal contemot by interfering with justice.
• In camera hearings outside s12: No restriction other than contempt by sabotage.
• CPR private hearings: s12 might apply. In any event, sabotaging the case or knowingly breaching express reporting restriction is contempt. Collateral use of documents and witness statements is always prohibited and could be misuse of private information.

Public hearings

Anything said is reportable. Anything published is public domain. The court cannot ask the press to pretend they did not hear something, but having one's name on the court list, being named throughout a trial or even judgment being given 12 days earlier have not stopped anonymity being granted. The court can delay reporting or provide anonymity on the same grounds available to justify a private hearing. But with no common law power and Art 10 to contend with, statutory power must be used sparingly. Interests must be balanced as per the balancing test of intense focus, justification and proportionality in Re S (A child) which is based on Campbell's public interest test. Serious evidence will be needed to justify restriction and sensitive evidence can be redacted into an affadavit. Names are important to informed debate regardless of press hostility. Sex life can easily justify restriction whereas sexual harassment is probably not so embarassing but can be. Anonymity in judgments after naming in open court might exceptionally be possible.

Reporting restrictions

The court may withhold a matter from the public, eg by clearing the courtroom or passing written notes silently. Even if a matter is disclosed, the court can restrict use of a disclosed document, which is preferable to clearing the courtroom. The court can seal or redact a witness statement during a trial. Publication could be contempt. The court can delay reporting to avoid prejudicing proceedings.

HRA adult privacy

At common law there is no right to privacy in court to avoid embarrassment. Art 6(1) protects not just parties but witnesses, eg by redaction. Anyone wishing to interfere with freedom of expression needs evidence to justify it not just assertion.

CPR adult anonymity

The court can anonymise parties and witnesses in their interest. This might include the respondent to prevent jigsaw identification. The court also has inherent jurisdiction to anonymise witnesses. An applicant for anonymity will need to clear the dual hurdles of necessity and Re S balancing test. Anonymity should be rare and not just to save embarrassment.

Disclosed material restrictions

At common law, recipients inherit an implied undertaking to the court not to use documents obtained through discovery under (perhaps threat of) compulsion for a collateral purpose until deployed in open court, and to do may be misuse of private information. Under the CPR, a recipient of discovery must not use it for a collateral purpose unless agreed, given court consent or read or referred to in a public hearing. The press may argue that contemporaneous reporting is not a colateral use.

List of injunctions

Granted

Some entries have been anonymised because they are super-injunctions not yet in the public domain or family cases involving innocent children. Some are not privacy injunctions, but reporting restriction orders. The only "blackmail" allegation that a claimant dared to put to the police scrutiny was KJH.

! = most people know or can find out - the game is up
% = widely named, some confusion - only a matter of time

• A v B plc - 27/01/01 - renewed 27/04/01, set aside 20/06/01, renewed 05/07/01, set aside refused 10/09/01, discharged 11/03/02
  • Gary Flitcroft hushed up two affairs before Court of Appeal heard he had told his wife so could no longer hurt his children and lifted it for press freedom
  • not in public interest to hide cheating from wife
  • not in public interest to stop girlfriends speaking out
  • transient relationships do not deserve as much protection
  • role model status relevant
  • no right to privacy subject to public interest - they are equal competitors
• A v B, C & D - pop star used privacy to override copyright in porn shots in her lap dancer days
• AA - footballer
• Ambrosiadou v Coward - 12/04/11 - without-notice injunction removed at with notice hearing
  • replaced on appeal with de-anonmyised injunction to cover redacted text
  • husband leaked application notice to press in family proceedings
• % AMM v HXW - 21/09/10 - blackmail - anonymous injunction, renewed 04/10/11
  • ex-wife alleged TV star rekindled relationship five years after he re-married - talk of photos and book
  • ex-wife ordered to reveal which journalists she had spoken to, leading to Daily Mail being served
  • Daily Mail gave gist on 30/09/10, thus forcing court to continue anonymity order
  • various newspapers may have given hints by covering non-injuncted related matters about applicant and describing claimant as outspoken
  • Daily Mail included commonly cited name in related link on story mentioning the injunction on 19/05/11 and went even further on 16/05/11, combining reference to a TV star, both his wives and superinjunctions
  • Private Eye named employer as The Sun
  • wrong woman may have been named due to mixup between injunctions
• Archer v Williams - 03/07/03 - confidentiality agreement upheld
  • PA leaked to Mirror that Lady Archer had plastic surgery and sold story to Daily Mail; diaries protected
• ASG v GSA - 21/08/09 - confidence
  • married celebrity with kids slept with girl from nightclub
  • privacy right engaged because relationship was private, adultery irrelevant
  • mistress would eventually probably be allowed to tell his wife but not the media
  • no need to notify blackmailers of emergency hearing
• Ashworth v MGN - Ian Brady's medical records
• ! Barclays v Guardian - confidence - 15/03/09 - emergency injunction, renewed 17/03/09
  • £10bn tax avoidance scheme leaked by employee to Vince Cable MP in March 2009
  • published, but as court led to believe Twitter, docstoc, gabbr and Wikileaks and are obscure, not so widely that newspapers should publish even wider
  • The Times ran the story after receiving an order on 15/05/19, and the Guardian ran web article for a few hours on 16/03/09 before receiving an order at 2.31am, leading to 'internet chatter' by 17/03/09
  • leaked by Lord Oakeshott in parliament on 26/03/09
• Barrymore v NGN - married TV star's gay affair
• BCD v EFG (Ntuli v Donald) - 25/03/10 - super-injunction extended 26/04/10 - downgraded on appeal to de-anonymised injunction 16/11/10
  • Take That band member's girlfriend allowed to say she was his girlfriend but no more
• Beckham v MGN - photos of home interior
• Blair v Associated Newspapers - confidence - 13/07/00 - Cherie Blair's nanny & cleaner sold story to Mail on Sunday
• C&D v E (Beckham v Gibson) - 23/04/05 - domestic help gagged by celebrity couple on state of marriage
• Carr v NGN - 14/05/04 - upheld on appeal 24/02/05 despite excluding press from hearing
  • lifelong worldwide anonymity granted for Maxine Carr, who as girlfriend of serial child killer Ian Huntley, provided false alibi
• CBL v Persons unknown - 29/03/11 - married high profile AV campaigner's sex life
• % CC v AB - 04/12/06 - confidence
  • cuckolded husband gagged from revealing singer wife's affair with Premier League manager in England, US and Europe
  • ruling that permanent injunction would probably allow victim to tell friends but not media
  • leaked online at the time, but became hard to find since lawyers removed pictures of mistress with the manager
  • name speculated by Sue Mae
• CDE & FGH v MGN & LMN - 16/12/10 - anonymised injunction to prevent jigsaw identification
  • long serving Eastenders star's cybersex by text, email & Twitter plus two meetups with celeb stalker single mum
  • judgment describes CDE as TV star with teenage children whose wife lost a stone and temporarily left him in April 2009
  • named on 01/07/10 by tweeters following alleged leak of retention of Max Clifford to manage the story after tweeters noticed his sudden absence from twitter
  • name repeated by arch injunction tweeter Sue Mae on 23/06/11
  • may be confused with Vernon Kay, another sexter, who confessed in Feb 2010
  • allegedly named abroad online
• Cox v MGN - 06/06/03 - Sara Cox honeymoon nude pics settled by consent after publication in Sunday People on 14/10/01
• ! CTB v NGN - 14/04/11 - blackmail - anonymised injunction, renewed 23/05/11
  • Sun article named Imogen Thomas and gave gist on 14/04/11
  • Michael Wheeler's blog speculated on the man's nationality on 14/04/11
  • bloggers were speculating by 10pm that nighthttp://3.bp.blogspot.com/-0NrY-GIVvkQ/Td9n8IFd1NI/AAAAAAAAAOc/tuYxOHQd59s/s1600/28.jpg, some naming fellow Welshman Giggs,
  • more definitive accusations surfaced with Louise Bagshaw MP naming Giggs (blanked out) on HIGNFY on 22/04/11, followed by Jailhouselawyersblog on 27/04/11
  • confirmation seemed to come from an apparently well informed Tweeter giving details of various injunctions on 08/05/11 and international media
  • Giggs helped confirm the speculation was true by accusing an ITN reporter of tipping off ManU press office, applying unsuccessfully for a disclosure order against Kelvin MacKenzie on 15/05/11 (who admitted other leaks on 30/04/11) and obtaining one against Twitter in CTB v Twitter on 18/05/11
  • as Forbes.com ridiculed the injunction and contempt applications citing the 'Streisand effect', and ran a screenshot of the offending twitter, Piers Morgan, Boy George, Toby Young & Dom Joly led Tweets around 20/05/11 before a photo appeared in Scottish Herald on 22/05/11
  • in light of the photo and the Prime Minister going on ITV Sunrise to denounce it as 'unsustainable' The Sun applied on 23/05/11 at 2.30pm to set aside, refused
  • an hour later John Hemming MP used parliamentary privilege to put the defunct injunction out of its misery
  • despite The Sun's second objection that day at 5pm in light of privilege, the injunction was continued at 6.30pm to minimise intrusion
  • Tweeters will be pleased to know counsel of choice to cheating footballers, Hugh Tomlinson QC, conceded on 23/05/11 that online speculation made no difference, thus destroying any chance of contempt convictions
  • media, including ITV, ignored injunction
  • having riled the press, NOTW splashed "Giggs 8 year affair with bro's wife" on 05/06/11
• Deayton v Associated Newspapers - 2002 - medical records - gagged Mail on Sunday over further revelations after "coke & hookers" stories
• DFT v TFD - 27/09/11 - blackmail - without-notice anonymised super-injunction, downgraded to with-notice injunction - celebrity's mistress
• Doncaster v Haigh - family - hyper-injunction - horse trainer banned from talking to MP
  • Guardian reported on 29/04/11 Doncaster's unsuccessful contempt prosecution of 13/04/11 against Haigh for speaking in the Palace of Westminster (inside which the High Court did not even have jurisdiction)
  • Telegraph reported baby snatching angle on 30/04/11
• E, F & G - famous family
• EEE v GGG - footballer affair
• ! ETK v NGN - 10/03/11 - injunction refused - anonymised injunction granted on appeal 19/04/11
  • married Shameless co-stars David Threlfall and Pauline McLynn had affair, forcing production company to sack McLynn in November 2010 under cover story of "commuting"
  • widely named on internet, including their wikipedia histories, and public aware as noticed woman suddenly written out of show, outed by Irish Sunday World on 06/06/11
  • Court of Appeal made new law that colleagues obliged to cover up any affairs they notice, presumably even if shamelessly foisted on them
• ? v ? - International footballer had affair with foreign hockey player
• French v Bowyer - 24/01/00 - Dawn French stopped biographer leaking identity of adopted daughter Billie's parents in biography
• Goldsmith & Khan v BCD - 15/12/08 - confidence - anonymised super-injunction
  • downgraded to injunction on 22/03/11 on application by News Group due to claimant's delay
  • mentally ill stalker hacked their Hotmail and sent to newspaper, who returned them to Mrs Goldsmith
• H v Associated Newspapers - HIV positive health worker
• Hamilton-Appiah v Commissioner of the Police of the Metropolis - 28/05/11 - reporting restriction order on PIDA claim in Employment Tribunal
  • too late as case already on public record at ET and reported by Private Eye and Daily Mail, naming HR Director and member of Strategy & Improvement Department
  • clues in Daily Mail on 29/05/11 revealing married man in 50s with OBE living in Hertfordshire on £180,000 before taking early retirement in April 2011 from organisation with 26 other claims against it
  • woman, man and Met named on Twitter from new injunction buster
• !? v ? - hyper-injunction - confidence - 2006 Case no 773
  • man gagged from whistleblowing to MP over leaching of solvents caused by defective application of paint lining to four cruise ships' drinking water tanks (since replaced with solvent-free version) after he lost a claim after collapsing from the chemicals
  • given 2 week suspended sentence for telling a lawyer
  • gist revealed by John Hemming MP on ??/03/11, & citation on 25/05/11
  • order, details and original case name variously leaked online in Australia by March 2011
• Hirschfeld v McGrath - 04/02/11 - marriage confidence - anonymised injunction, anonymity removed at return date 14/02/11
• Holden v Express - topless photos in hotel garden
• Jagger v Darling - 09/03/05 - Elizabeth Jagger blocked Prophecy nightclub boss from further publication of CCTV after stills of her giving oral sex to Callum Best in doorway at 4am on 17/02/05 run by NOTW
• ! JIH v NGN - 13/08/10 - confidence - anonymised injunction, extended 20/08/10, anonymity extension refused 05/11/11, refused 18/11/10, added on appeal 31/01/11
  • sportsman slept with a second woman other than his wife
  • widely leaked online as repeat offender who had an affair in 2010, second girlfriend referred to by The Sun
  • Telegraph and Daily Star nearly blew the gaffe online on 06/11/10 (judge was not supposed to mention the Star)
  • Telegraph repeatedly mentioned John Terry in article on JIH on 24/11/10 and referred to the injunction as the "new" one on 31/01/11
  • Daily Mail mentioned John Terry in article on JIH on 01/02/11 and referred to Terry as having a second injunction on 12/01/11
  • narrow field of suspects as judge revealed applicant to be non-anonymous regular to the Royal Courts of Justice
  • might be (or confused with) the Tottenham Hotpur player referred to by the Daily Mail on 16/05/11 who had affairs weeks before and after his wedding
• KGM v NGN, MGN & Associated Newspapers? - Jan 2009 - confidence - super-injunction - reporting retsriction removed 18/11/10, de-anonymised 23/05/11
  • revealed as Hutcheson v Ramsay, celebrity chef's father-in-law hid secret family
• KJH v HGF - 24/11/10 - blackmail - anonymised injunction - thief tried to blackmail female pop star over compromising photos on laptop for £54,000 (claimant using Victoria Beckham's solicitor)
• Marr v Associated Newspapers - Jan 2008 - anonymised injunction - affair in 2002-3
  • Private Eye threatened to apply to set aside, forcing applicant to admit affair in Daily Mail on 26/04/11
  • came after years of Westminster sniggers and teasing by interviewees & Private Eye
  • girlfriend widely named online
• Matthews v News Group - 27/05/11 - Karen Matthews, who staged a £50,000 fake kidnap of daughter Shannon, gagged The Sun over true story
• McGregor v Fraser - 11/11/03 - Ewan McGregor blocked pap shots of kids in Mauritius
• Mills v NGN - 24/05/01 - Heather Mills' address, lost bid to renew on 04/06/01
• % MJN v NGN - 05/05/11 - anonymised injunction, renewed 11/05/11
  • shy Sunderland striker's three-month affair with Kimberley West
  • The Sun snapped them at his marital mansion before running stories on 6th & 7thl May 2011 naming Kim West but not the footballer
• ! MNB v NGN (Fred Goodwin & Susan Bor) - 01/03/11 - confidence - renewed 04/03/11, MNB de-anonymised 19/05/11, application to de-anonymise VBN 26/05/11, application to de-anonymise VBN 01/06/11 refused 09/06/11, varied to name VNB's job description 23/06/11 (appealed)
  • emergency anonymised injunction by phone after Sun threatened to run story
  • The Sun ran story about banker gagging them over an affair on 03/03/11l
  • court agreed to order deletion of article 04/03/11
  • renewed 09/03/11
  • John Hemming MP used privilege to name him on 10/03/11, but did not give details
  • RBS CEO busy having affair with colleague while stumbling into disastrous ABN-AMRO deal
  • Daily Mail soon copied the story on 14/03/11, helpfully clarifying that the bank was one which received a bailout
  • Daily Mail inexplicably ran news in brief on 17/03/11 with unpixelated photo: "Why's the Royal Bank of Scotland’s perky [redacted] such a focus of curiosity online? A YouTube video of her discussing mundane business matters attracted heavy traffic before it was removed this week. It’s not as if [redacted] is a really famous RBS executive!?!", thus revealing she is a senior executive, headhunted in the 1990s, on a six figure salary, with hundreds in her department, in her 40s, holds a masters degree, married with children and lives in a Scottish villa (the bit about her sectors was wrong - it should have been geography, and she was not promoted during Goodwin's reign)
  • woman named online as 'passionate' global department manager at Bishopsgate with 400 staff, even before affair (but not her name) revealed in Parliament by Lord Stoneham on 19/05/11, in response to which anonymity lifted at 18:15
  • Daily Mail summarised a remarkably similar Linked In profile on 19/05/11 with a remarkably similar pixelated photo (deleted after application to judge asking him to refer to Attorney General for contempt on 27/05/11 refused)
  • woman's role narrowed down on 02/06/11 in Sun's court report to one involving "employee's concerns and grumbles"
  • order varied on 09/06/11 on application by Sun to de-anonymise mistress's job description (Director of Group Resourcing) stayed pending appeal until 23/06/11
  • mistress cited benefit of social networking sites to get a message out on 11/01/11
  • with everyone with an internet connection knowing her name the mistress resigned in June 2011
  • Sunday Times claimed on 19/06/11 that an MP is due to name the mistress in parliament
• ! Montgomerie - Aug 2010 - super-injunction - Colin Montgomerie named by newspaper not served
  • applicant blew the gaffe at Ryder Cup in USA, both parties named in The Sun on 13/08/10.
• ! NEJ v BDZ - 13/04/11 - confidence - prostitute Helen Woods' anonymity removed 19/04/11
  • actor widely Twittered and teased in newspapers, including blatantly in Private Eye and Daily Mail, but has not stopped him doing interviews in the Independent and Telegraph
• ! Mahmood v Galloway - 04/04/06 - NOTW's 'Fake Skeihk' secured removal of his likeness from Respect Party's website
  • discharged on 06/04/06 due to intervention of George Galloway
• Northern Rock v FT - 14/11/07 - confidence - share subscription memo leaked
  • injunction protected the Project Wing memorandum but FT were allowed to keep their article
  • executive summary all over internet at Wikileaks, Linas, Scribd and Docstoc.
• ! OPQ v BJM & CJM - blackmail - 29/01/11 - contra mundum anonymised injunction, extended 02/02/11, perpetual 20/04/11
  • prostitute & partner threatening to release comedian's BDSM texts, emails & photos
  • reputed to have been teased in press, eg Telegraph
  • widely named by bloggers
  • Mail narrowed to "household name TV star" on 21/04/11
  • 58% of Guardian readers (who are slightly more in favour of regulation) would have granted it
• POI v 'Lina' - 12/01/11 - renewed 26/01/11 - blackmail - claimant anonymised in injunction
  • Swede filmed single 27 year old religious teetotaller top ten international premiership footballer in 2009 on Blackberry wearing only condom in orgy in Las Vegas hotel
  • name speculated by tweeter Sue Mae
• PQR v UVW (Bernard Gray) - 15/10/10 - confidence - perpetual injunction
  • created by staying interim proceedings to defeat Buffham (the rule that Spycatcher third party contempt jurisdiction ceases once final judgment given)
  • innocent recipient UVW anonymised to prevent it being obvious what defence journalist (now head of MOD procurement, sent them in 2009, followed by message exchange in October 2010
  • whatever it was, it would embarrass Gray's family and the recipient and was not business related
• Q - confidence - teacher
  • (a teacher referred to as Q obtained a restricted reporting order in the Employment Tribunal on 07/07/06 to hire his sex change)
• Re B (A child)(Disclosure) - 2004 - reporting restriction on name of paediatrician to encourage future expert witnesses
• Re W - 14/07/05 - reporting restriction order on conviction of woman for deliberately infecting boyfriend with AIDS, to protect children* RJA v AJR - 04/03/11 - judgment given but not published
• RJA v AJR - 04/03/11 - renewed 18/03/11 & 23/03/11
• RST v UVW - aka T v W - 11/09/09 - blackmail - celebrity hired prostitute under confidentiality agreement around 1999
  • Duke of Westminster named by tweeter Sue Mae, already outed as prostitute regular in 2007
• ! RJW & SJW v Guardian (Trafigura) - 11/09/09 - super-injunction
  • tried to gag parliament over Minton Reportf leaked by Wikileaks on toxic dumping in Ivory Coast
  • name leaked by Paul Farrelly MP on 19/10/09, BBC defence on Scribd, Trafigura reply on Wordpress.
  • Trafigura extracted compensation from taxpayers via the BBC for alleging toxic dumping, despite it resulting in claimant's executives being imprisoned by Cote d'Ivoir in 2006, an injunction to prevent witness nobbling, a £150M settlement to victims in 2007, a 20 year sentence for the boss of the waste diposal firm in 2008, 5 years for their shipping agent, an admission in 2009 that it caused illness and subsequently the claimant being fined in 2010 by the Netherlands for the illegal waste shipment and forgery.
• R v Wang Yam - public interest immunity* TPW - Nicola Horlick against PA - withdrawn under settlement
  • identity theft murder trial held in chambers where Chinese and Israeli spies involved
• SCG v MKL - 14/04/11 - ?
• Stedman & Patten - 18/02/09 - family
  • injunction hid fact (revealed in Mirror on 26/03/09) that 12 year old Alfie Patten was not father of baby in famous case of underage sex
  • varied on 07/05/09 to avoid playing King Canute after foreign newsfeeds pumped the DNA test results into brandname sites in UK
• ! TSE & ELP v NGN - confidence - 19/05/11 - anonymised injunction - shy midfielder 'scared of boos'
  • Sun tipped off club on 12/05/11 following two month investigation, approached girl to offer to buy her story, revealed girlfriend is 23 year old model on 14/05/11
  • Giles Coren speculated on Twitter at 3.05pm on 14/05/11 in jokes about Giggs and a teammate
    • applicant asked judge to report Coren to Attorney General for contempt on 19/05/11, refused
    • Coran named by Order-Order on 22/05/11 and John Hemming MP on 23/05/11
    • the Telegraph confirmed on 23/05/11 the player was the 'other one', as did the Guardian on 28/05/11.
• TUV - 30/03/10 - global female pop star's laptop stolen by burglar in London in November 2009
  • blackmailed for £20,000 over photos - blackmailer sentenced to 7 years
  • whoever it was used Annie Lennox's lawyers
• VAM v KDS - celebrity
• % Venables - Jon Venables lifelong anonymity granted on 08/01/01
  • extended after child pornography conviction on 30/07/10 to prevent revenge for murdering toddler Jamie Bulger
  • judge allowed disclosure that he was living in Cheshire
  • public knowledge in 2001 that imprisoned in north England, a newspaper soon narrowed it down
  • Manchester Evening News found in contempt on 04/12/01 for mentioning on 22/06/01 imprisonment and parole hearings
  • arrested for child porn when police took him into protective custody after cover blown on 22/02/10
  • alleged name, location employer and photos of him on 21/06/09 / received 1,000,000 hits from 2010-2011
  • photo aged 26 at party on 12/02/09 celebrating on anniversary of murder doing rounds
  • Exeter warehouseman and anti-paedophile database vigilante Chris Wittwer warned on 06/05/11 by Attorney General not to do same with Robert Thompson
  • Thompson named on 14/05/06 as girlfriend batterer Sean Walsh in Ireland with photo aged 25
• ? v ?, re ? - family - bitter custody battle
• W v M, S, an NHS PCT & Times - 12/05/11 - court of protection
  • permission for mother to switch off life support machine of 43 year old daughter in care homehttp://www.telegraph.co.uk/news/uknews/law-and-order/8510360/First-injunction-specifically-bans-Facebook-and-Twitter.html
• % WER v REW - celebrity's affair publicised by cuckolded husband in e-blast
  • claimant only obliged to serve people showing interest in publishing
• Winehouse v BPL - 02/05/09 - 100 metre exclusion zone outside house to keep out paps
• ! Woods v ? - 10/12/09 - naked pics of Tiger Woods
• X v BBC & Lion Television - 22/06/05 - Miss X withdrew consent to featuring in documentary about Glasgow sheriff court
• X v SO - 21/05/03 - Mary Bell, a serial child killer, granted lifelong anonymity to protect daughter
• X&Y v Persons unknown - 08/11/06 - confidence
  • allegations being fed to press by friends about model's marriage breakdown
  • she had not made private life sufficiently public, despite selling wedding snaps to the press and withholding disclosure of publicity previously sought
  • injunction granted to protect reasons for marital strains
• XJA v NGN - 03/12/10 - anonymised injunction - footballer affair
• YYG v PJK - 11/03/11 - ?
• YYZ v YVR - 27/01/11 - anonymised injunction - renewed 28/01/11 & 04/02/11- man accidentally sent email to another man
• ! ZAM v CFW & TFW - 25/02/11 - libel & blackmail - anonymised injunction, extended 03/03/11 - trust fund conspiracy theory
  • widely leaked online, respondent reported for contempt
• ZXC v BNM - 19/08/10 - renewed 26/08/10 - footballer affair - secret judgment
• ? v ? - $100M+ LA penthouse Hollywood star's $1M sex tape offer during intentional herpes transmission lawsuit herpes
  • girlfriend left him when his identity went viral in June 2011, refusing to give a reason

Telegraph 13/05/11

• super-injunction - senior civil servant - may be confused with Bernard Gray's injunction
• super-injunction - MP
  • may be confused with Nigel Griffiths's Commons companion of Nov 2008, who has an anonymised injunction
  • may be an outdated reference to Zac Goldsmith who has a completely innocent injunction over hacked emails with his sister Jemima

Telegraph are suspected of accidentally outing 12 injunctions, including ZAM, CFW, TFW, NEJ, AMM, HXW, TSE, JIH, Goodwin's mistress, MJN, OPQ, ETK, VVH, PDT(by only denying and mentioning one in a list) for a few hours on 31/05/11 before pulling the story

Daily Star 15/05/11

• multi-millionnaire footballer affair with foreign sportswoman who has photos on her phone (named on twitter on 18/06/11 as Manchester player and hockey player)
• % super-injunction - female, reputed to be international pop star preventing employee leak (reputed to involve lesbian affair while married)

Independent 24/05/11

• lawyer's porn stash
• child abuser
• % paedophile, reputed to be an MP co-defendant
• gamblers
• actress' laptop stolen
• sportsman's child
• alcoholic denial
• TV star death threats
• celebrity's disabled son

The Telegraph reported on 13/05/11 that there are 12 super-injunctions. They say they were served with 77 privacy injunctions between 2005 and 2011. The Independent revealed on 24/05/11 that there have been 333 privacy injunctions between 2006 and 2001. 264 were family cases but 69 were celebrity cover-ups, including 28 affairs and 9 convictions.

Notorious sources allege a prostitute-visiting football manager, a married Tottenham Hotspurs player seeing three women plus his wife, a second footballer seeing Kim West, and a boxer run off with an X factor contestant.

Refused or settled

• A v B (Copyright Diary Pages) - 31/07/00 - one spouse entitled to use other's diary against them in divorce via solicitor
• A v B - 16/06/05 - confidence - defendants not obliged to reveal what they planned to say
  • divorcing wife allowed to tell magazine about husband's drug rehab & behaviour because he had courted publicity about him, his child and drug use
  • court should not cover up Class A drug use
• A & B v Channel Four - 06/07/05 - 15 years olds from Leeds school wanted to be deleted from secret footage by undercover supply teacher
  • confidential relationship but overridden by public interest in school discipline
• A local authority v PD - 10/08/05 - council tried to conceal trial of father who chopped up wife and kept her in fridge
• Beckham v First News - 26/01/06 - aerial photos of 'Beckingham Palace'
• BKM Ltd v BBC - 02/12/09 - care home tried to block undercover documentary
  • refused as conflict of interest, asking judge to become censor and no standing; in public interest reveal scandal in care & regulation
• Coe - 29/05/04 - Sebastian Coe tried to cover up one his mistress' pregnancy in 1996
• D v L - 31/07/03 - musician's ex secretly recorded him during break-up - no threat & in public domain as referred to in open court
• Doncaster v BBC - 22/01/10 - social services tried to gag BBC over review into crime wave committed by two eleven year olds in their care, but forgot to serve BBC
• Ferdinand v Channel Four - Aug 2040 - Rio Ferdinand tried to block transmission of roasting tape
• LNS v Person unknown (John Terry) - 29/01/10 - super-injunction refused to cover up affair with Vanessa Perroncel
• Law v Frost & Blake Publishing - 06/07/10 - Consent Order for Jude Law to remove passages from autobiography
• Miller v Associated Newspapers - 18/03/11 - Tomlin order after Daily Mail published address & photos of Lily Allen's house on 14/09/10
• Morgan v A local authority - 11/05/11 - Dr Kanabar paediatrics expert witness named
• Re Baby RB - 16/02/11 - father tried to stop mother from giving BBC interview after turned off life support machine in 2009
• Stone v South East Coast SHA - 12/07/06 - serial killer Michael Stone tried to gag report into his mental health care
  • - normally heavy weight given to medical records overridden by public interest in preventing murders
• Theakston v MGN - 26/01/02 - confidence - blackmail - photos in brothel - photos blocked but story allowed
  • TOTP presenter traded on sex life and sold himself as role model for youngsters
  • thought visit to prostitute was private but prostitute did not
• Tillery Valley Foods v Channel Four - 10/05/04 - tried to get right of reply to circumvent libel law defence of justification before Dispatches broadcast after secret filming in Sodhexo NHS frozen meals factory

Research

Key online sources of speculation include tweeters at @legal_AIDS(Sue Mae), @ianian1984 (Ian Sanderson) and @omegainjunction (Billy Jones), bloggers at #superinjunction, caughtoffside.com and order-order.com (Guido Fawkes), mazfarquar.com, and Google autocomplete.

An Injunction Spreadsheet'online suggests there are loads more, such as cover-ups involving a midfielder and author, actor's wife, sex prosecution, film star and European president, David Kelly, affair between a Star wars actor and showbiz star in Paris, prostitute-using aristocrat's leisure preferences and oligarch. The spreadsheet is a free for all guessing game, with de-synchronised rows and columns mixing up names and subjects, witness summonses, DN notices and possibly assuming Schillings clients are automatically media as opposed to sport clients.

Leaks are often blamed on the media, but a privacy injunction passes through many hands: the applicant's press office perhaps, his solicitor and staff, his barrister and staff, RCJ security guard, clerk to Duty Judge, Duty Judge, court issue staff, List Judge, hearing judge, ushers, QBD Associates, Copy Direct, media lawyers, editors and senior journalists (who might give live interviews). At least ten people know before a single newspaper is served. Plus, of course, the respondent / girlfriend / blackmailer knows, and may realise they are not going to get paid by their victim or for their story, so will have to leak it to become famous and get paid for that instead.

Contempt

Introduction

Contempt is defiance of the court. It is like a crime but with no right to a jury, no warrant for arrest, no summons or indictment (CPS charge) and no prosecution (although it will be referred to as such). Cases can be heard by any superior court, and the standard of proof is beyond reasonable doubt.

Contrary to press and online reports in the 2011 superinjunction frenzy, non-parties cannot be guilty of disobedience (civil contempt), but might be guilty of interference (criminal contempt).

Civil and criminal contempt defies categorisation. One distinction is that in civil contempt it is up to the parties to complain like a private prosecution, whereas in criminal contempt it is for the Attorney General, so it much harder to enforce against strangers unless a party can bring them into civil contempt jurisdiction by proving they are an agent of a party. Civil contempt is remedied mainly by coercion although sometimes, subject to the rule that breach of an order can only be civil contempt, punishment is needed for the afront to justice and penalties can be purely penal, whereas criminal contempt is remedied by punishment. Civil contempt is defying the court, whereas criminal contempt is undermining it. Aiding and abetting civil contempt is a criminal contempt. A civil contempt can usually be waived by the claimant unless public disobedience, but once charged the court decides what penalty. Either way, the defendant has the right not to self incriminate. Hearsay is admissible in civil contempt. Discovery is probably the criminal approach for both. In civil contempt the civil election on submitting no case to answer applies at the court's discretion. The Crown can only pardon criminal contempts. A bailiff can only break in to arrest a criminal defendant. Sequestration is only available for civil contempt. Discharge conditional on costs is only possible for criminal contempt.

A factor in any case is that courts have prioritised fair trial over freedom of expression.

The former distinction between civil or procedural contempt and criminal contempt has arguable been replaced by one offence of contempt. This is capable of being committed in two ways, either

• breaching or assisting breach of an order, eg a newspaper "publishes and be damned" or leaks to a celebrity Tweeter to do the dirty work, or
• anyone
  • interferring with justice, or
  • creating substantial risk of serious prejudice, which is where the public could be caught in circulating leaks until they are sufficiently known.

The traditional civil contempt wrongs the party and may also be a criminal contempt wronging the court. Although governed by common law, there is also the Contempt of Court Act 1981, introduced in the wake of a leak about the Thalidomide scandal when the courts punished the press for commenting on it until the ECtHR slapped them down. The Act regulates common law contempt, limiting the court's power to fine, imprison, discover sources and imposes strict liability on interference with particular proceedings.

In summary, in terms of privacy injunction leaks:

• parties can easily commit contempt because they are subject to civil contempt as well as criminal contempt
• persons served with an order, eg media, are only subject to criminal contempt but can at least easily be shown to know about the order
• persons not served with an order, eg members of the public, are only subject to criminal contempt and can rarely be prosecuted as it needs:
  • Attorney General's consent, which he refused to give even when a celebrity was alleged to have helped push an anonymised party's name into the public domain, may feel under pressure not to give where more voters are Sun readers than footballers or think his government has failed to legislate the boundary between privacy and freedom of expression, and appears to see as reserved for cases of national security and people leaking from or on behalf of newspapers, and
  • proof beyond reasonable doubt that:
    • the disclosure was not already public knowledge, and
    • loads of people read it

Criminal

Appeal is possible under Administration of Justice Act 1960 s13. A key difference from civil contempt is that there is no defence of privilege.

Inside court

The contemnor must intend to and actually interfere with justice. For more recent guidance see AG v Punch.

A useful weapon for claimants is an order for disclosure of sources of information published (or pending publication). This is available if probably necessary (more important than the publisher's statutory right to withhold sources) for administration of justice, eg if a website knows who contributed. Because a website might not be a publisher if its contributors are the publishers, it might not have statutory privilege against disclosure of sources, making it easier to extract names. The public should be aware that it is easy to persuade UK websites to name users.

Outside court

Also known as constructive contempt.

Types

Constructive contempt includes, inter alia, publication:

• under statutory strict liability creating substantial risk of seriously prejudicing justice,
• contrary to common law intending to interfere with justice, or
• in breach of reporting restrictions

Strict liability

Only the Attorney General or court can decide to prosecute. It is possible to apply for an injunction to stop a future contempt and an applicant can so apply without the AG's permission. Strict liability is aimed at sabotage of jury trials, so a lesser remedy should be argued for in privacy cases. It removes the prosecutor's need to show intent where conduct tends to interfere with justice.

Definition

Strict liability means the contemnor is liable regardless of intent if the applicant proves beyond reasonable doubt he published something tending to interfere with justice in civil or criminal proceedings.

This means creating a substantial (more than minimal and not remote) practical risk (considering circulation) of serious (real)impedence (obstruction) or prejudice (detriment) during active proceedings by intentionally publishing virtually anything to at least a section of the public.

A web article is published when it is uploaded and therefore creates a 'risk', but not a 'substantial risk' until there are enough hits. Although each of several publications can create its own prejudice, members of the public are likely to argue that even if the information was not in the public domain, their worthless speculation in tweets, blogs, wikis and conversations down the pub, etc could not have created 'substantial' prejudice and in any event they are not famous enough for their publication to have been to a 'section of the public'. There is a big difference between web pages that would be stumbled across and those that need searching, which can be enough to remove 'substantial risk', and it can be relevant whether the page comes up in search engine results. . One might argue that if a surfer is searching for an anonymised name they will find it elsewhere, so no low profile webpage could create a substantial risk. Borrie & Lowe suggest Facebook friends are not a 'section of the public' whereas unselected members of a site would be, and it has been held that a 2,000 mailing list was enough. If there is reasonable doubt what is a section of the public then the judge must acquit. Publication includes photos. Hyperlinkers could try the argument that as there is no mental element or human input on their part in clicking, they are not publishing what they link to.

An arguable defence for online postings is that a website is not a publication as it must be in the s2(1) list yet is not, although contempt authors Borrie & Lowe doubt it and Arlidge, Eady & Smith disagree.

Civil proceedings are active from when the hearing takes place or is agreed if earlier until disposal, and appeals are active from application until disposal. Liability can catch bloggers, editors (even if genuinely believed true, never saw the whole article and warned the sub-editor, or did everything to try to stop it and was not reckless), cinemas, proprietors and publishers, broadcasters (unless a live feed from another broadcaster), and printers and distributors(especially if they are the only party in the jurisdiction as the publisher is overseas) or even reporters. Printers may struggle with an innocent publication defence that they did not know proceedings were active, given that printing is submitted electronically and done within half an hour. Directors can potentially be liable (at least where they wage a personal battle). However, where editors have been blameless they have not been penalised, rather the newspaper has been fined. Sometimes editors are prosecuted alongside the newspaper (where they wrote the article), sometimes they are ignored. Editors are advised to take legal advice and record the basis of reasonable reliance on sources such as journalists to help avoid prosecution or mitigate or avoid penalty. It has been possible for a newspaper to mitigate down to a nominal fine where it had procedures to prevent contempts. The state of mind of managers, eg editors, can be imputed to the company and the company who provides the resources to publish is deeemed to have intended to publish. Companies may need to prove they took reasonable care in choosing and keeping editors to plead s3(1). A reporter does not publish widely enough by submission, but may cause publisation by the publisher, although rarely, such as when he intends publication as is rather than editing out. Producers are likely to be left alone as broadcasters are bound by Ofcom to check what goes out. Interviewees on live TV can expect to be singled out for liability, although broadcasters could also be liable if they chose the topic and could have known whast might be blurted out.

Procedure

The Attorney General typically writes to the alleged contemnor inviting voluntary representations as to why he should not be prosecuted.

Defences

• Reasonable care

Publishers have a defence if they prove on the balance of probabilities that they took all reasonable care yet did not know and had no reason to suspect relevant active proceedings, eg they were secret and they thought they were speculating on someone else without an injunction or the same person on an uninjuncted matter. The same defence is open to unwitting distributors in s3(2) if they did not know and had no reason to suspect it was likely to contain such matter. The s3 defence is not for intentional interference with justice or those who close their eyes to the obvious. Alleged contemnors might argue that Re F-style enquiries of the court would have been useless if the file was sealed. Extra protection comes from ECHR Art 10 para 2 which requires any prohibition on free speech to be 'prescribed by law', in other words certain, requiring awareness of the exact terms - as opposed to a rumour that there might be an injunction banning something a bit like what is what is disclosed about somebody who might be who is named.

• Public affairs

Not strictly a defence, as it is for the prosecutor to show it does not apply. It is not contempt to publish in good faith to discuss (airing of views, debating of principles, real life examples and implied accusations; not discussing the case without addressing wider issues) public affairs if the risk of prejudice is merely incidental (incidental consequences of expounding main theme, or good faith accusations), eg debate on privacy injunctions, and the prosecution would have disprove it.

• Public domain

Obviously another way of avoiding liability is, although strictly not a defence, to deny what was disclosed was within the injunction in the first place. This would be by showing confidence had been lost by moving into the public domain, preventing further publication from causing substantial or any prejudice. Information ceases to be confidential when it is known by a substantial number of people, public knowledge, made generally available to the general public (unless perhaps only disclosed to limited part) or in the public domain (generally accessible). For example, this ought to work for public Tweeters, and maybe celebrity Tweeters, but the first few to leak or recycle (often celebrities) are on stickier ground as the cat might not have been out the bag until their intervention.

Court reporting

Publishing proceedings in a private hearing is contempt once published under defamation test, ie to one person. A party, court or ideally the Attorney General can institute contempt proceedings. If the AG refuses the party can still ask the court. Editors, proprietors, publishers & printers, and distributors or even reporters can be liable.

Contemporary reports of proceedings

The court can by precise written order stating what must not be reported for how long and why delay reporting of proceedings where necessary (if no other solution and possibly depending how press behaving) to avoid substantial risk of prejudice to justice, eg naming an anonymised applicant or revealing his secret.

The court may hear press representations. The press should idealy be told the terms at the start. The order can deal with different media differently. The delay cannot be indefinite.

Publications interferring with justice

There needs to be proof beyond reasonable doubt of a real risk of prejudice to justice in pending or imminent (or even before that) proceedings and intent (forseeability as virtually certain, not recklessness) to interfere with justice, considering circumstances at time of publication (eg subsequent leaks by others are no defence), eg publishing material covered by an injunction. Appreciation of pre-empting the decision at trial on confidentiality can easily be seen as common law contempt, but the accused will say he was merely reckless and the prosecutor has to prove beyond reasonable doubt that he can upgrade that to intent.

Pending means from issue of application to end of appeal or time for it.

A webhost is a publisher if he knows of or assumes responsibility for the content. An ISP can probably take the 'mere conduit' defence in the Ecommerce Regulations 2002 reg 17.

Civil

General

Disobedience to process

It is civil contempt to disobey a certain order, or undertaking (not the order approving the undertaking) especially if (which it not compulsory) served with the resulting order, in knowledge of all material terms, eg a newspaper breaches an injunction or promise it made to avoid one. Every diligence should be exercised to obey the interim order to the letter.

The main relevance of civil contempt is to newspapers served with injunctions, and the world in respect of a Venables-style contra mundum injunction. However, in "Baby P" in 2009 online vigilantes were allowed to name a baby rapist during a restricted reporting order with impunity. The Attorney General did not defy pubic opinion to hunt down those who exposed the appalling truth.

It is a crime and can be enforced by committal (prison) or sequestration (confiscating assets). Companies can be fined and directors are liable if served personally and they wilfully fail to help comply. Normally penalties are coercive but if the intention is to defy the court the penaties may also be punative.

Sequestration can be suspended as an incentive.

First offence is no defence.

Parties are expected to apply for directions before resorting to committal.

Elements of offence

The prosecutor must prove clarity, notice, breach, mens rea (guilty mind) and responsibility (mainly relevant to companies), and all beyond reasonable doubt. The main elements are service and breach.

• Clarity

The order must be unambiguous, for example it must say who must not do what, for example what must they not say. The proceedings transcipt can be used to prove the order is too wide but not that it is narrow enough. A draft order that is too wide or vague will be refused.

• Notice

It is no contempt to breach an order with no notice. The order must be personally served unless in an exceptional case waived justly or substituted (eg advert or letter)in advance, or because the party had notice by presence or phone ideally from the applicant's solicitor (to prevent the automatic defence of denial of receipt), etc , or announced at a meeting and confirmed in a newspaper, or a newspaper had notice via the Press Association. The order must include a penal notice substantially in the prescribed form unless waived where unprejudicial. If the individual rejects it the server must state the contents and leave it as close to his control and possession as possible. Weak evidence of notice allows a defence of bona fide reasonable belief the injunction was not granted.

• Breach

Proper cogent proof is needed. If the defendant is unrepresented the court should ask why and if necessary adjourn.

• Mens rea

Intent is irrelevant (except that companies are not liable for unintentional acts of staff), as is reasonable endeavours or reasonable care and legal advice, but relevant to penalty when costs and damages may be appropriate but not prison or sequestration. The court should check whether the defendant was trying to comply or deliberately flouting.

Aiding & abetting

Only parties are bound (even, according to the Court of Appeal, if the order purports to be against the world, contrary to the High Court's Venables). But non-parties on notice can be in contempt if they knowingly aid and abett defiance of the court order or undertaking - even if without the respondent's knowledge if for their benefit) - by active assistance or acqiescence knowing it is inconsistent with the terms, or if they intentionally frustrate the purpose.

Defences

Unintentional disobedience

Prison and confiscation are not allowed without fault or misconduct. Costs may be ordered however. Culpability is relevant to sentencing. Legal advice is no defence but can affect sentence. It is no defence for directors to plead ignorance or management guidelines. Misconduct changes the complainant from the other party to the state. Misconduct and fault may be hard to prove if the alleged contemnor was not server and was merely joining the fun and not making money. Motive is not a defence.

Orders improperly obtained

It is not a defence that the order should not have been made - the solution is to still comply but apply for relief even if the order is void. However, by analogy from disclosure of sources, there may be a defence is an order was unnecessary. Improperly made s11 anonymity orders and s12(2) judgment secrecy orders are not binding.

Government

Although government is subject to contempt jurisidiction, were the government to accidentally or on purpose breach an injunction it can be ordered to pay costs, but cannot be imprisoned or fined, and can pardon itself via the Official Solicitor, so is almost as free as MPs in parliament to name and shame.

Punishment

Sequestration and committal are only available if the order was clear, there was proper notice of its terms and breach is proven beyond reasonable doubt. The court can appoint a sequestrator to confiscate assets pending discharge of the writ of sequestration, when assets are returned minus his expenses.

Judgments & Orders

The alleged contemnor must have been swiftly personally served (or proven beyond reasonable doubt to have been notified with court consent) with an order containing a penal notice, warning of sequestration and committal. The order should be specific, and narrowly intepreted and convincingly necessary.

Discovery & production of documents

An alleged contemnor cannot be guilty of contempt for failing to disclose documents unless he was on notice of the order and it is proven beyond reasonable doubt he had them and could have handed them over.

Undertakings

An applicant ought first to ask the alleged contemnor to state whether he has complied.

Procedure

There is a Practice Direction supplemental to RSC Odr 52. The order alleged to be breached must have had a penal notice unless waived.

Powers

General

Punishment of criminal contempt

Trial is without jury. Penalties can be up to 2 years prison, unlimited fine, security for good behaviour or injunction against repetition. It is a defence that the alleged contemnor did not interfere with justice, in which case the other party will be left to his civil remedies. It is probably not possible to punish attempted contempt.

Punishment of civil contempt

Penalties can be prison, unlimited fine, sequestration or injunction.

Procedure

Committal

In civil privacy proceedings only the High Court Queen’s Bench Division or Civil Court of Appeal can commit, and can act through a single judge.

The committal order must specify the facts and breach. It is invalid if includes findings not made. It can only exceptionally be rectified.

Contempt in the face of the court

If contempt in the face of the court, such as refusal to disclose sources, the alleged contemnor must be given an opportunity to explain himself.

Civil

There must be proof beyond reasonable doubt of service or notice (eg fax or presence at hearing) of the order alleged to be breached. Where third parties are suspected of assisting a breach this requirement (and of proving assistance) may encourage instead a charge of common law criminal contempt by intentionally interfering with justice.

Application to High Court

Theoretically the court can charge of its own motion regardless of urgency and impose summary trial but in practice courts do not charge publication, prefer a formal approach and would anyway have to notify the charge to the accused and let him speak. The court should only charge of its own motion if the case is already proven beyond reasonable doubt and the threatened trial is in hand.

Unless the Attorney General consents to or takes over the case, or the case is before a single High Court judge or the Court of Appeal, the Divisional Court’s permission is needed to apply. The application must be without notice and include an affidavit and statement describing the applicant, contemnor and grounds. At least a day earlier the applicant must copy in the Crown Office. If the applicant is refused by a judge in chambers he can ask the Divisional Court within eight days to reconsider.

Once consent is granted, a hearing is requested of the Divisional Court at least 14 days after the claim form is served. The contemnor must be personally served (by leaving it with him) with the application, statement and affidavit unless the judge allows a lesser form of service, eg the contemnor is in hiding. The court can allow service outside the UK. Even if the order breached was made by the Court of Appeal the party would go back to the High Court for a committal order. Non prejudicial technical defects can be waived.

Normally in civil contempt the applicant is expected to report to the Attorney General and let him decide whether to take it over, although there is nothing to stop the applicant ploughing on personally.

In criminal strict liability contempt (not injunctions and perhaps not where the accused intended to interfere with justice) the charge must come from the court on its own motion (perhaps after a complaint by counsel) or by or with consent, or on the own motion, of the Attorney General after a letter from the applicant. In practice the court will not act alone and will refer to the Attorney general, and even if the AG consents, he takes it over and does not give consent even to meritorious cases which are not pressing enough to justify him taking them over. There is no appeal, or judicial review, against the AG's refusal.

An application for consent to apply for sequestration must confirm that the original order was served. Courts take the view that parliament intended s7 to channel media contempts via the Attorney General. An idea of the AG's yardstick might come from the fact that his team has limited funds and did not prosecute newspapers who ran stories on the Yorkshire Ripper's arrest, although did prosecute over Fagan coverage (Queen's bedroom intruder). In short, the AG is interested in spies and murderers but is unlikely to have the funds and inclination to come to the aid of adulterous footballers complaining of a leaky internet.

A single judge may make an order of commital in the High Court. The Queens Bench Divisional Court has jurisdiction over its cases, the Employment Tribunal and perhaps those of the Court of Appeal. The Court of Appeal has jurisdiction over its cases. The Supreme Court has inherent jurisdiction over its cases. The High Court and Court of Appeal can charge of its own motion.

No leave is required to apply in other courts. Such court can waive service if just or order substituted serviceif a good reason such as evasion but not that the respondent is due in court. Service dispensations must be recorded in the committal order. A litigant in person can apply to such courts.

Hearing

The defendant is not an accused person so although is entitled to procedural fairness is not entitled to a fair trial.

Traditionally there was no right to legal advice although it was expected to be given unless there was extreme urgency. Now contempt prosecutions are seen as criminal trials for the purposes of ECHR Art 6 right to fair trial, so the accused is entitled to time, facilities, legal advice, legal aid and cross-examination. The respondent is entitled to a full and fair chance to meet the charge.

The hearing should be in open court unless the interests of justice require otherwise, eg when the Manchester Evening News revealed a clue to the whereabouts of Thompson and Venables. Even if the application is heard in private the name, type of breach and length of sentence must be read in open court, otherwise the Court of Appeal can set aside if the High Court has not since so read it. Cases are normally heard by three judges of the Queens Bench Divisional Court including the the Lord Chief Justice.

The contemnor is allowed, but not obliged, to give oral evidence but not to cross-examine the applicant's witnesses unless at the court's discretion, as the prosecutor's evidence is by affadavit. The accused can be cross-examined once he testifies. If one party can cross-examine so can the other. The parties can be required to swap witness statements. Hearsay is allowed in civil contempt but not criminal contempt. The prosecutor must prove beyond reasonable doubt. The contemnor might be able to plead self-incrimination even in civil contempt. The contemnor may submit no case to answer once he hears a weak case from the prosecution. The contemnor can tell the judge not to read his defence until the prosecution has stated its case.

Unless the court allows, only the grounds in the application can be used unless amendment allowed, so, for example, the judge cannot prove himself what was not notified and non-service of new grounds needs remedying by adjournment.

Although the contemnor does not have to be invited to do so he is probably entitled to give a plea in mitigation.

As contempt is a sui generis offence and not a crime,the court should not allow every possible criminal evidential safeguard.

A retrial was ordered where a respondent had no time to instruct his barrister properly.

A respondent is entitled to a choice of lawyer and legal aid if too poor, does not have to accept funding from the applicant in lieu of legal aid, ought to be heard on the need for funding and convictions without legal representation can be set aside.

Legal aid is governed by Access to Justice Act 1999 Sch 3 para 5 which applies a test factoring in liberty, livelihood, reputation, understanding, tracing, interviewing and interests of others. It can be granted without application and emergency application for funding can be expedited. The better funding uner s12 may be available for common law contempt (intentionally interfering with justice) or aiding and abetting breach of an order.

The applicant is probably entitled to submit no case to answer without calling evidence as the Court of Appeal appear happy with it but the High Court has seen it as discretionary.

Punishment

In addition to the penalties below, security for good behaviour is an option.

Criminal

The main cases on criminal contempt have been newspapers writing about criminal trials, which a contemnor might argue are more serious than embarrassing an unethical celebrity, justifying civil damages for misuse of private information instead.

• Committal

The court considers culpability (eg intention / recklessness / knowledge / negligence) and risk of interference with justice. If justice is interfered with then prison is the usual sentence unless exceptional circumstances, although the court should take time to reflect. The order for committal must specify the contempt. The maximum sentence is two years and the court can release earlier. Typical cases are where witnesses refuse to testify. It is relevant what would have been imposed for a first criminal offence, eg previous convictions, position of trust, guilty plea, character, age, health, voluntary compensation, remorse, family, risk of re-offending. Nobody under age 21 can be imprisoned. Probation is not possible as an alternative, nor is community service as there is no 'conviction', but the sentence can be suspended, and even a subsequent breach does not guarantee prison. Media contempt is in practice only imprisonable for most outrageous intentional or reckless criminal trial sabotage. Sensationalist circulation boosting stories which sabotage trials are particularly disliked, as in the last case of media contempt imprisonment in 1949. Innocent printers are unlikely to be penalised.

• Fines

Fines must reflect ability to pay as well as interference and culpability. They have ranged from £1,000-£5,000 for individual producers and editors, £10,000-£25,000 for newspapers (£50,000 for a TV broadcaster), with a going rate of some £15,000 for companies. Where, unusually, individual reporters were found guilty they were fined £500. The biggest fine ever was against the Mirror in 1949 for £10,000 (£364,535 at 2011 prices). Next up was £80,000 (£125,000 at 2011 prices) against the Sun and £20,000 against editor Kelvin McKenzie in 1994 for sabotaging a murder trial, and £75,000 (£144,000 at 2011 prices) against the Sun in 1989 for prejudicing their own private prosecution. There has been roughly an 80% discount for small circulation compared to national media. With reckless editors of national newspapers being fined £5,000, and considering fines of £1,000 on an editor who leaked a medical file, a solicitors firm who did the same and Nigel Dempster for leaking family proceedings from a private hearing, a blogger would be looking at more like £1,000. If his speculation turned out to be true he could argue similarity to AG v Newsgroup (1982) where the fine was £500 for an first offence accident. On the other hand, a Today editor was fined £25,000 even at 1995 prices for running an extract of a royal diary he knew was injuncted in the false belief publication overseas allowed it.

• Injunctions

Injunctions can be granted against third parties, eg members of the public, to prevent repitition or even to restrain a future contempt. The Attorney General can apply (as he has done against newspapers and the BBC)and often writes warnings to publishers who push their luck (eg Soham, Ripper and CHRIS cases). He has been known to give prior approval of publications. Prior restraint needs a manifest case. Injunctions are preferable to summary trial once the damage is done.

• Cooling off

Although only required for contempt in the face of the court, before or instead of charge for constructive contempt the court can invite an apology.

• Bind over

The court can take security for good behaviour, although judging by the precedent for this, at 2011 prices it might be a five figure sum, and it is designed to allow a party to continue litigating despite a contempt.

• Warnings

Although not penalties, instead of a contempt charge, a judge can invite an accused in for an informal warning in chambers or give a formal warning to the press in open court.

• Costs

The contemnor can expect to pick up at least half the AG's costs, which will usually exceed the fine. However, the court can waive costs or even penalise the prosecutor for wasting its time.

Civil

The only main case on interference with a civil order was Spycatcher, which one might think does not compare with revealing the innocuous and predictable fact that a premiership footballer chose to have an affair with a famous self-publicist who planned to sell her story. Options open to the High Court include sequestration and committal and both can be ordered. Other penalties are fines, injunctions, costs and attachment (ignored but not abolished).

• Committal

As above, except that judges are told to be wary of locking people up for civil contempt, especially for minor or technical infringements. Contemnors cannot be held on remand pending sentencing. The contemnor is entitled to present his case as if a criminal trial. Breach of an order should not usually, let alone automatically, mean committal. A long sentence can be imposed pending another judge reviewing it on better evidence later. Regard should be had to character and seriousness. Even if a suspended committal order is breached the court can impose a fine or no sentence. A party who leaked family proceedings online was given two weeks suspended for six months.

• Sequestration

Sequestration probably cannot be used against third parties as they would be guilty of criminal, not civil, contempt, so is mainly a threat to newspaper respondents. It is a last resort, typically used to force compliance with disclosure rather than to fund a fine. It is coercive not punative, so is no use against a newspaper that has already published other than perhaps to fund damages.

The application procedure is similar to that for committal, eg in terms of service and privacy, and is governed by CPR Pt 36 and RSC Ord 46 on permission to issue a writ for sequestration from the Lord High Chancellor to the sequestrators in Form 62 (ordering taking of possession of profits and estate). The application applies for leave by motion. The applicant will have to prove contempt but not assets. The court can substitute a fine, injunction or costs, depending on circumstances such as public interest. The applicant files a PF87 praecipe for sealing and issue, before the court (usually the Central Office of the Supreme Court) seals it, valid for a year after which a new writ would be needed unless exceptionally the court extends for a year at a time. If the sequestrator gets any assets it then needs an order for sale. Once funds arrive in court the court can pay the judgment creditor. Injunctions may be needed to stop the judgment creditor siphoning off funds before execution. Typically the sequestrator will go after a bank account, when the bank will be ordered to confirm the balance and pay it into court. The sequestrator is liable for costs if it gets it wrong.

Once the contemnor has purged his contempt he can apply for discharge and the sequestrators will be ordered to hand over what's left after deducting their costs.

• Fine

As above, although regard should be had to damage to public interest. Judging by the Prime Minister, MPs, celebrities and half the public, the public think it is in their interests for the rich and famous to have less privacy than judges are giving them, especially for affairs funded by overpriced sportswear or bank subsidies.

• Other remedies

An injunction is available in lieu of committal or a fine. The court can award damages for breach of undertaking. Indemnity costs can be awarded in lieu of other penalties. If the court is doubtful whether there is a contempt it can require the contemnor to say if he has complied. An accused could offer an undertaking in return for the charge being dropped, or could suggest that an injunction requiring, for example, removal from a website and prohibiting repeat offences is more appropriate. The accused may find that the applicant started in the wrong court, so that even a transfer to the correct court is void.

• Costs

It may be unfair that if the defendant wins he cannot get indemnity costs from the prosecutor, whereas if the defendant loses he will end up paying indemnity costs to the prosecutor.

• Lockout

The contemnor is technically locked out of the case until he purges his contempt or wins an appeal, but courts can choose to hear them.

Appeals

The contemnor (or Official Solicitor on his behalf without his consent, eg to prevent a martyr) can, within four clear days, appeal conviction and sentence, as can the prosecutor if he applied for committal.

The Court of Appeal Civil Division hears appeals from single High Court judges on committal orders and permission to apply for them. Leave to appeal sentence is rare and must be requested within 28 days from the convicting court or within 28 days of refusal to the appeal court. Notice and affidavit must be served on the parties and High Court. To appeal again to the Supreme Court needs the Court of Appeal to certify a point of law of public importance, unless on an injunction restraining anticipated contempt, but not if it is the first appeal, eg from Divisional Court to Supreme Court. The Court of Appeal can order a retrial.

However, an appeal from the Divisional Court (where most contempts are tried) or Court of Appeal is straight to the Supreme Court, when the leave requirement is relaxed, or disapplied for committal orders but not other penalties such as costs, etc, and governed by CPR PD 52 para 21.4, allowing a relatively fast, cheap and televised trip to the highest court in the land for a disgruntled comtemnor, where a precedent could be set which effectively wipes out contempt jurisdiction against, say, bloggers, which might weigh on the AG's mind when deciding whether to spend money prosecuting. An applicant (prosecutor) probably need leave to appeal. The procedure is explained in Tanfern v Cameron-MacDonald. Leave must be requested of the convicting court within 14 days or to the Supreme Court within 14 days of refusal (although the Supreme Court can extend for defendants ).

An appeal court can grant bail with security for re-appearance if the contemnor loses; the contemnor must file and serve an application 24 hours before the hearing. The hearing will normally be within 48 hours and the appeal court will drop everything to hear it.

The appeal is normally a review but can be a re-hearing and the appeal court can order a re-hearing. An appeal court will only reconsider a refusal to commit if manifestly erroneous, so defendants found not guilty should be safe. The courts should balance the interests of the defendant, parties and rule of law. The more relaxed criminal (Irtelli v Squatriti), not civil (Ladd v Marshall), rules on new evidence apply to civil contempt appeals, ie where justice requires, and convictions can be set aside if unsafe. Appeal courts prefer not to remedy defective committal orders if the contemnor has been imprisoned. A defective committal notice is probably incurable. An appeal court cannot order costs of a successful appellant out of central funds. The appeal court cannot suspend or discharge a sentence.

The appellant must file a notice saying what is wrong and whether fact or law, file it with the original court and serve it on all respondents as soon as possible and within seven days of filing.

The Crown can pardon criminal contempt via the Home Secretary.

Execution of committal order

Prison

The contemnor will be arrested and taken to prison by the tipstaff, usher or police bearing a PF103 general warrant of committal (to "apprehend and convey") from a judge in the court where committed, and he is required to smash his way in if necessary. The court can similarly also issue a PF102 bench warrant to bring him in for sentencing at the High Court. If the contemnor is hard to find the police will be asked to find him and hold in a cell for collection. He will be taken to prison, where special rules apply as he is not a convict. He is entitled to wear his own clothes, invite doctors and dentists, not associate with convicts and normally have unlimited letters and visits. He will stay there under a PF106 prisoners warrant of committal (to "detain in safe custody") until his sentence expires or is discharged. His is eligible for the usual early release or remission, so will normally only serve half his sentence and the Home Secretary can release him on exceptional compasisonate grounds or the court can order early discharge as can the Home Secretary. As media contempt will usually be heard in London the prison will be Pentonville for men or Holloway for women.

In rare instances he can be privileged from arrest for civil contempt, which would need legal advice.

Release

Applications must be to the same court division, be served on the other party and can come from the contemnor, his agent or the Official Solicitor, which saves the contemnor costs (eg if the government wants to stop an ‘injunction martyr’). The court can ask the Official Solicitor to help him. One way of doing that is to pardon him for civil contempt. The court cannot ban you from re-applying.

He can try apologising to purge your contempt.

If released by mistake he cannot be taken back for civil contempt, nor probably for criminal contempt.

In any event, he will probably have to pay costs, but not before release unless for criminal contempt, in which case he may find him paying the other party’s costs and a fine.

External links

• example.com