Super Injunctions Are Still Alive

According to recent reports in the Daily Telegraph and Daily Mail, Ryder Cup captain Colin Montgomerie is the latest high profile sportsman to resort to court action to protect his reputation. According to the articles ‘Monty’ won an injunction at the high court which prevented a national tabloid from printing a story about the golfer’s private life. The injunction, granted by Mr Justice Eady has raised concerns in some quarters that the courts are creating privacy laws. Speaking at a press conference this week Montgomerie said: “I’m here to talk about the Ryder Cup. So please, no further questions on anything regarding my private life. By definition, that is private”. Montgomerie hit the headlines back in June after admitting marital difficulties to his second wife, Gaynor Knowles. In 2008 The News of the World was found to have breached the privacy of former F1 boss Max Mosley with reports of sadomasochistic sex sessions with prostitutes. The judgement was seen as setting as precedent in the development of privacy law after Mr Justice Eady ruled there was no public interest or other justification in the paper revealing Mosley's extra-marital activities. Mosley is reportedly currently lobbying the European Court of Human Rights to effect a law change which would require publications inform their victim at least 2 days prior to print of their intention to expose their scandalous activities so that an injunction can be obtained. Such a law change would outrage free speech campaigners and Media organisations who will no doubt point to Article 10 of The Human Rights Act which states the right to freedom of expression shall include freedom to ‘receive and impart information and ideas without interference by public authority’. At the other end of the ring is those that are in the public eye. They will point to Article 8 which states: “everyone has the right to respect for his private and family life”. Footballer John Terry will no doubt have something to say on the matter after his attempt earlier this year to prevent reports of an extramarital affair hitting the headlines were rejected by Mr Justice Tugendhat. Before awarding an injunction the courts must consider how to balance rights created under article 8 and rights created under article 10. No one article can take precedents over another – the facts of individual cases must be examined before a decision can be made. The courts have developed a test which turns on proportionality: is the intrusion of privacy proportionate to the public interest being served? In the John Terry case Mr Justice Tugendhat declined to order an injunction citing (amongst other reasons) that their would be much public interest in the case and he did not see that the grant of an injunction would be proportionate when considering the gravity of the interference with John Terry’s private life. Montgomerie’s victory has swung the pendulum back towards those in the public eye … they may have won the battle but will they win the war?

Published August 16, 2010

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