Celebrity threesomes and the futility of A-lister injunctions in England

Every so often we have the spectacle of the English press trying to shake off an injunction, like a bucking horse seeking to unseat an unwanted rider. The English press does not like injunctions and, indeed, injunctions against newspapers were rare until fairly recently. The general rule in defamation cases, for example, is "publish and be damned" – if a newspaper wants to take a risk in paying damages and legal costs, then it can go ahead and publish – but here will not be the "prior restraint" of an injunction.

But ten or so years ago the English and Welsh courts "developed" a law of privacy. To say that this law was "developed" is a polite fiction: the law was essentially invented by the courts. Strictly speaking the law is called "misuse of private information" and it is the old law of confidentiality as super-charged by the right to privacy under Article 8 of the European Convention of the Human Rights, which has had effect in English law since 2000. It is a private law right, which means it is enforceable "horizontally" against other legal persons, such as news titles, and not just "vertically" against the government.

The crucial element about this new right of legal action is that the courts will readily grant an injunction, even before any trial. The consequences of breach are not just damages and legal costs. The thinking behind such injunctive relief is that a genie cannot be put back in a bottle. Once information loses its private quality, it cannot be made private again. An interim injunction thereby holds the ring until the court can determine the issue at trial (at which the court can grant a permanent injunction).

The English press generally regards these injunctions with stark horror. They are seen as a monstrous interference with the freedom of the press. And so when such an injunction is granted parts of the English press will seek to discredit the injunction and, in my view, seek to subtly encourage others to circumvent the court order, especially on Facebook or Twitter.

The interests of children involved is seen as some cynical pretext to the disgruntled mainstream media and their social media accomplices

The tactic appears to be to generate such social media interest in what is being injuncted that the court order becomes futile. And as injunctions should not usually be granted in vain, then the objective is that popular interest will force the court to discharge the injunction in the face of reality.

There are two kinds of injunction which particularly annoy the English press. The first is the so-called super-injunction, where the existence of the court order itself cannot be published. There was a spate of these about five years ago but now they are almost non-existent. The second type of injunction is where the existence of an injunction is public, but the court prohibits the identification of the parties: this is an "anonymised" injunction.

Currently in England we have the controversy and ridicule about an "anonymised" injunction sought by a celebrity couple about a personal matter. The judgment of the court granting the injunction can be read on the internet. News organs in the United States and Scotland (which has its own legal system) have named the couple. A simple internet search will reveal the couple. Anyone who cares can tell you who the couple are. But the English newspapers cannot name the claimants. It is close to a farce. But the injunction (for now) remains in place.

It is difficult to see what the actual public interest is on the facts of this case

What makes this a more complicated situation than first appears is that the injunction was not (directly) granted just to protect the celebrity couple but also their children. The court had regard to the interests of minors. But this does not matter to the disgruntled mainstream media and their social media accomplices: to the extent they are aware the interests of children are involved, it is seen as some cynical pretext. The view seems to be that the effect on the children is an excuse which the celebrity couple are using.

Few with a straight face will maintain that the underlying story is important. But the case is nonetheless significant. On one hand there is the ongoing internationalisation of media and its complex relationship with social media. On the other hand there is the mundane requirements of news titles to pay their way and to comply with court orders.

The current media storm will probably pass with the celebrity couple eventually being "exposed" by the tabloids following the discharge of the injunction, though it is difficult to see what the actual public interest is on the facts of this case.

The mainstream media, however, may not get the commercial benefit of the revelation. Stoking social media interest so as to frustrate an injunction can be financially if not legally counterproductive: the newspaper still has the lawyer costs but few will purchase a newspaper just to read a story already widely discussed on Twitter and Facebook. And as margins in the news industry become tighter, such exercises become less commercially attractive. Legal bills are certain, as front page splashes come and go.

David Allen Green writes the Jack of Kent blog and is a journalist and lawyer.