Sunday, 31 January 2010

The end of superinjunctions?

LNS v Persons Unknown [2010] EWHC 119 (QB) (29 January 2010) has become a celebrated case because of the identity of LNS, although it has a bigger claim to fame as the case in which the tide seems to have turned for privacy claims. At least the threat of superinjunctions (the name coined for court orders that don't merely forbid the disclosure of certain information, but go on to forbid the disclosure of the fact that they even exist - an example of which a client of mine once had, which is about as much as I can tell you about that although I think I can observe that the claimant's solicitors were the same firm that represented LNS) has receded, even gone away entirely. The judgment also heralds a change in the attitude of the courts to prior restraints in such cases - though it is noteworthy that it ws not Eady J, widely credited with (or blamed for) the development of a law of privacy in this country, who refused the injunction.

Rather, it was Tugendhat J, co-author of Law of Privacy and the Media, who heard the case, taking a more balanced view than I think has sometimes been the case. He seems to have attached more importance to the freedom of the press than has been the case in the past, and stressed its important role in facilitating public debate. Without a free press the public would be unable to discuss important matters - such as which professional footballer is engaged in a relationship with which other professional footballer's girlfriend. As the foundation of an important point of principle, that strikes me as lacking something - it is not, to my mind, the sort of thing that the Human Rights Act should really be concerned about, but unfortunately it is the sort of thing that the press exercises its freedom to report and in which the public takes a prurient interest: putting up with rubbish like this is, perhaps, the price we pay for the important things that the media can - when they can be bothered - achieve.

I have no interest in reading the gory details of footballers' private lives in the press or providing links to them, but I did find an excellent Press Association piece about the case itself on the Sporting Life website, co-written by an old friend and Warwick Boar colleague.

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