Never one to miss a good opportunity to pass comment and to leap onto a bandwagon, I have been musing on the game of chicken being played out between the Courts, Parliament and the media. Can the media identify alleged adulterers who have the benefit of an injunction and get away with it? And how relevant is this to the world of IP and commercial confidentiality?
Several things have occurred to me:
- Footballers who do things that the public might be interested in should think twice about rushing to their lawyers. Even in the digital world, today’s news is tomorrow’s fish and chip paper. Thus, in 2002 Garry Flitcroft went from being a solid midfielder for Man City and Blackburn to being an entry in many legal text books. A v B PLC reached the Court of Appeal, the injunction was denied and the Court discussed the balance between freedom of expression and the right to privacy. Lord Woolf handed down a set of guidelines for the Courts to apply when considering whether to grant injunctions.
- In 2011, the Courts still try to balance the competing interests of privacy and of freedom of expression. The European Convention on Human Rights enshrines (at Article 10) the right to freedom of expression but this right does not automatically trump other interests. In May of this year, Max Mosley’s request that pre-publication notification should be mandatory was denied by the European Court of Human Rights in Strasbourg in what was widely reported as a victory for press freedom. But the Strasbourg Court commented that an editor’s discretion in what to publish is not unbounded. For example, the valuable protection afforded by Article 10 is not intended to extend to cover “tawdry allegations about an individual’s private life”.
- In the UK, the Human Rights Act of 1998 incorporated the European Convention on Human Rights into English law. Neither the Act nor the Convention accords priority to either Article 8 (the right to respect for family and private life) or Article 10 (the right to freedom of expression). Parliament left the Courts to balance the two rights based on the facts of the case at hand – which you might describe as something of a hospital pass.
The Courts know that it is pointless to try to protect confidential information once it has lost all semblance of confidentiality. Mr Justice Eady, in a judgment given in April 2008 during the Max Mosley saga, said that “the Court should guard against slipping into playing the role of King Canute” and should avoid “vain gestures”. It is trite law that the Courts will only protect information that retains some element of confidentiality.
So, how can a footballer defend his anonymity (more or less) and have the benefit of an injunction (despite the efforts of the Sun, the Sunday Herald and tens of thousands of Twitter users)?
My suspicion is that the Court’s position reflects the principle that the accused is innocent until proven guilty. Beneath the howls of rage at the chilling effect of injunctions, there is (apparently) an allegation of blackmail. It is clear from the April judgment in CTB v News Group that Mr Justice Eady (again) was persuaded that blackmail might be an issue and took the view that the Court should protect the victim. I haven’t seen the more recent orders so I dont know if this is still the case.
We will have to wait and see whether the injunction is lifted now that CTB’s identity has been leaked (assuming that the leak is correct of course). It probably will be lifted as the Courts have long refused to protect information that is not confidential. Maybe then it will become clear whether this is an attempted blackmail case or a kiss and tell case. In time, no doubt, there will be some calmer consideration of how legitimate privacy interests can be protected in the Twitter age. For my money, the answer lies in the law of confidentiality and in deterring those who breach confidentiality without good reason (chequebook journalism is not a good reason). This is difficult, given the cross border nature of Twitter and the web, but not impossible if the initial source of the disclosure can be traced. There would not need to be any change to the system to achieve this. On one reading then, this saga adds nothing to the existing basis of the law of confidentiality.
What this saga is not is a threat to the public interest defence. There is no comparison between the interest the public has in the antics of footballers and the public interest in (for example) newspapers disclosing confidential information because it reveals that breathalysers are inaccurate.
Historical note from MSA: King Canute (an Anglicisation, if not bowdlerisation, of his real name, Cnut) is alleged (by some unreliable media outlet known as Henry of Huntingdon) to have placed his throne on the sea shore and commanded the tide to halt. This member of the IP Draughts team was taught at school that the reason King Cnut did this was to demonstrate to his courtiers the futility of commanding the waves not to advance. According to Wikipedia (third-hand hearsay evidence), Henry of Huntingdon records that King Cnut said:
Let all men know how empty and worthless is the power of kings, for there is none worthy of the name, but He whom heaven, earth, and sea obey by eternal laws.
The English courts, by overturning injunctions once the information has been disclosed in Parliament, may be said to be following the fine tradition of King Cnut.