Summary

Recent English court proceedings involving a football star obtaining an injunction in the United Kingdom against Imogen Thomas, a reality television show contestant and former Miss Wales, and a local newspaper has gained widespread public attention both locally and internationally. The football star’s legal actions eventually led to the disclosure of his identity by overseas newspapers, internet users and a Member of Parliament. The controversy has ignited serious debates about the privacy laws in the UK and may trigger significant legislative reforms.

Interim injunction against The Sun

On 14 April 2011, The Sun (a newspaper in the UK) published an article about an alleged sexual relationship between Imogen Thomas and a married footballer. The footballer promptly commenced legal proceedings and obtained a temporary injunction preventing The Sun and Imogen Thomas from publishing or disclosing details of the alleged affair, as well as the identity of the footballer. Court documents referred to him as “CTB”.

According to Re S (A Child) [2005] 1 AC 593, in deciding whether an injunction restricting the disclosure of certain information should be granted, a two stage process should be adopted. The court has to first decide whether the subject matter of the threatened publication would be such as to give rise to a “reasonable expectation of privacy” on the part of the applicant. The next stage is for the court to balance the competing rights in articles 8 and 10 of the European Convention on Human Rights (ECHR). Whilst article 8 provides that everyone has the right to respect his private and family life, article 10 states that everyone has the right to freedom of expression.

Justice Eady, the judge who heard CTB’s application for an interim injunction and whom many media lawyers consider to be the driving force behind the strengthening of the rule of privacy in the UK High Court, had no difficulty in holding that the injunction should be granted. In weighing CTB’s rights under article 8 and the rights of Ms Thomas and News Group Newspaper Ltd (NGN) (the publisher of The Sun) under article 10, Justice Eady stated that “it will rarely be the case that the privacy rights of an individual or of his family will have to yield in priority to another’s right to publish what has been described in other cases as “tittle-tattle about the activities of footballers’ wives and girlfriends” (Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359 cited). It has been emphasised that reports and publications about an individual’s private life does not attract the robust protection under article 10 of the ECHR, afforded to more serious journalism. There was no suggestion, which would not stand if made, that there was any legitimate public interest in publishing the material. An injunction was granted because, on the evidence presented (albeit incomplete and untested), the learned judge took the view that it was “likely” that CTB would obtain a permanent injunction at trial. Breach of the injunction amounts to contempt of court and offenders may face a fine and/or prison sentence.  

Application to vary the injunction

Subsequently on 16 May 2011, NGN applied to the court for a variation of the terms of the injunction for the reason that since the injunction was granted in April 2011, there had been widespread coverage over the Internet regarding CTB’s identity such that it was pointless for the court to preserve CTB’s anonymity. It was argued that in the modern world where the internet is easily accessible, such injunctions cease to serve any meaningful purpose. An interested person could easily find out who CTB is by making searches on the Internet.

Whilst the arguments advanced may be true, Justice Eady rejected NGN’s application and explained that the courts are obliged to apply the law as it currently stands. The Parliament may amend relevant laws to cater for technological developments but before that, it would not be appropriate for judges “to ignore their responsibilities and to refuse relief in circumstances where it is properly sought”.

Justice Eady further explained that “intrusion” is also an important element to be considered under the law of privacy. Publication by newspapers is much more intrusive and distressing for relevant individuals than the situation where the information is available on the Internet or in foreign journals to those, however many, who take the trouble to look it up. The learned judge opined that so long as the court is in a position to prevent some of that intrusion and distress, it may be appropriate to maintain that degree of protection. The freedom of expression here does not outweigh the legitimate interests in protecting CTB and his family. In the words of Justice Eady, lifting the injunction or otherwise permitting newspapers to reveal CTB’s identity would result in CTB and his family being “engulfed in a cruel and destructive media frenzy”.

Disclosure on Twitter

Despite the imposition of the injunction by Justice Eady, a user of Twitter, the website which provides social networking and microblogging services, sent messages on Twitter revealing the true identity of CTB as well as other well-known individuals who have obtained similar injunctions in the past. As a result, CTB launched legal action against Twitter, Inc. and “persons unknown responsible for the publication of information on the Twitter accounts” on 18 May 2011 at the High Court in London to compel Twitter, Inc. to disclose certain information regarding the Twitter users (e.g. name, IP and email address) who may have breached the injunction. CTB’s attempt to require Twitter, Inc. to divulge such information may not bear fruit as Twitter, Inc. is an entity based in California and is subject to different laws.

The commencement of such proceedings provoked further discussion regarding CTB’s alleged affair over the Internet. On 22 May 2011, Scottish newspaper The Sunday Herald printed a barely concealed photograph of CTB on its front page and labelled him as the footballer who obtained an injunction against Imogen Thomas and NGN, after being advised that the injunction does not apply in Scotland. The identity of CTB was made official when John Hemming, a Member of Parliament, named Ryan Giggs as the married footballer who is alleged to have had an affair with Imogen Thomas during a debate on privacy laws in the House of Commons. John Hemming is protected by parliamentary privilege under the Bill of Rights 1689, which provides that Members of Parliament shall not be prosecuted for statements made in the House of Commons or House of Lords.

British Prime Minister David Cameron spoke about this controversy during a television interview and commented that the situation where newspapers are prohibited from printing something everyone else is talking about is unsustainable.

An anonymity injunction as opposed to a super-injunction

It is worth noting that the injunction imposed by Justice Eady in the present case is not a “super-injunction” as described in some newspaper articles in the UK and Hong Kong. The order granted was: “Publication of any report as to the subject-matter of these proceedings or the identity of the Claimant [CTB] is limited to what is contained in [this] judgment and in the order of the court dated 21 April 2011.” A report was published by the Master of the Rolls titled “Super-Injunctions, Anonymised Injunctions and Open Justice” on 20 May 2011, in response to growing public misconceptions and concerns about the frequency, use and application of super-injunctions. It was stated in the report that only anonymity was granted and applied for in the CTB case.

A super-injunction was defined in the report as “an interim injunction which restrains a person from (i) publishing information which concerns the applicant and is said to be confidential or private; and (ii) publicising or informing others of the existence of the order and the proceedings”, with the latter element being described as the “super” part of the injunction. The injunction obtained by CTB did not restrict disclosure of the existence of the order (the judgment of Justice Eady is readily available on website of the UK judiciary) and hence does not qualify as a super-injunction.

Legal reform

The CTB case has sparked intense debates regarding the privacy laws and use of injunctions against the freedom of expression in the UK. Having criticised the situation created by the CTB case as unsustainable and that the law is not in line with how “people consume media today”, David Cameron announced, on 23 May 2011, that a joint parliamentary committee is appointed to examine the issues of privacy and privacy injunctions (Committee). The Committee is set to report back in autumn this year and serious legislative reforms are expected to ensue.

Implications for Hong Kong

The European Convention on Human Rights does not apply in Hong Kong. In Hong Kong, a person’s privacy is protected under article 14(1) of the Hong Kong Bill of Rights, which provides that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation”. The freedom of expression is, on the other hand, guaranteed under article 27 of the Basic Law, which states that “Hong Kong residents shall have freedom of speech, of the press and of publication.”

There is yet no case law in Hong Kong which extends breach of confidentiality to protect privacy in civil cases as the UK courts have done since the coming into force of the Human Rights Act 1998 in October 2000. It remains to be seen whether Hong Kong courts would adopt a similar approach to the UK in protecting privacy, particularly when a confidentiality situation is absent.

In a recent criminal court case in Hong Kong which involved former Olympic rower Gloria Chan Hok-yan blackmailing a 73-year-old man with a sex videotape, the judge granted anonymity to the blackmailed man. When the former rower was prosecuted in the District Court, the blackmailed man, referred to as “X” in court and “rich tycoon X” by the press, testified in court behind a screen. Unlike the CTB case, his identity has so far been successfully protected.

In the modern world where the Internet is easily accessible and online discussions are increasingly popular, the issue of disclosure of private information and the contravention of an anonymised injunction over the Internet is another interesting issue which the Hong Kong courts may have to deal with in the future.