Judgment was handed down today in a case where a privacy injunction was made in 2008. That was only some two years ago, but two years is a long time in privacy law and particularly in the fast-moving area of injunctions, superinjunctions and anonymity.
The case is Goldsmith and Khan v BCD. The claimants – Zac and Sheherazade Goldsmith and Jemima Khan – obtained injunctions in 2008 to prevent the publication of emails hacked from their personal email accounts. The claimants were granted anonymity at the same time, and a ‘super injunction’ was also granted so nobody could say that the injunctions had been obtained at all. The Court explained today that it had done this because if the unknown defendants had come to know that an injunction had been obtained, before it was served on them, there would have been a real danger that they might publish the emails on the internet or destroy evidence that might lead to their identification.
Last week, the anonymity restrictions and the ‘super injunction’ element were lifted by consent, following interest from the media. The judgment flags two interesting procedural problems.
Firstly, the Court was troubled that the claimants had failed to comply with undertakings that they had given to the Court. When they obtained their interim injunctions, they had undertaken that they would issue a claim form and serve it on the defendants, once their identity became known. They failed to do so. Mr Justice Tugendhat said that this was a “serious breach, even if committed with good intentions”. The judge decided that on this occasion he would not take action to punish the breach – for example, striking out the claim – but made clear that the usual position should be that the court should “mark the seriousness of such breaches”.
Secondly, the court gave a rather sheepish explanation for not having included a return date in the interim injunction. In late 2008 it was rare for interim privacy injunctions to include a return date, which is the date on which the case comes back to Court for a full hearing on whether the injunction should continue. The judge said one of the reasons for this was to save cost, because return dates can be expensive. However, the Court acknowledged that the inclusion of a return date would have made the breach of undertaking less likely, and would have ensured that the anonymity restrictions had not stayed in place for as long as they did.
The Court pointed out that a return date does not always involve a hearing. Where all the concerned parties are in agreement, and affected parties such as the media do not ask for a hearing, the judge thought that in most cases it should be possible for the Court to review the matter on the papers.