On 23 June, 1986, the Guardian reported that the UK government was seeking an injunction in Australia to prevent a retired MI5 officer called Peter Wright from publishing his memoirs. Just over a year later, the UK’s highest court decided by a majority of three to two that a temporary injunction should remain in force, even though Wright’s book – now called Spycatcher – had just been published in the US.
Frequent flyers started bringing copies back from America – perfectly lawfully – and leaving them ostentatiously on coffee tables. It was not until the autumn of 1988 that the Guardian persuaded the law lords to lift the injunction.
Lord Ackner, of the three judges who gave the majority judgment in 1987, said English justice would “have come to a pretty pass if our inability to control what happens beyond our shores is to result in total incapacity to control what happens within our very own jurisdiction”.
But Lord Bridge, one of the two dissenting judges, said there was no longer any issue of national security left to protect. “Freedom of speech is always the first casualty under a totalitarian regime,” he continued. “The present attempt to insulate the public in this country from information which is freely available elsewhere is a significant step down that very dangerous road.”
Nobody would say that an account of the “three-way sexual encounter” protected by the court of appeal in a judgment nearly three months ago was as important as Wright’s allegations against a security service that was not then established by legislation. But both cases raise the same question: at what point should the courts stop trying to preserve the confidentiality of information that is known to many but not to all?
The claimant who was granted an injunction in January is “in the entertainment business and is married to … a well-known individual in the same business”. The couple “have young children”. Their names have not merely been published in the US. Now, as the Guardian carefully reports, a Scottish newspaper has published their identities.
This sort of thing has always been regarded as risky, not because the injunction applies outside England and Wales but because Scottish newspapers may circulate in England. Incidentally, I prefer to call it an injunction rather than a superinjunction, because the latter term was coined to refer to injunctions whose very existence could not be reported.
What’s interesting is that the mainstream media in England and Wales has not, so far, breached the court order, despite a lot of huffing and puffing and sailing close to the wind. One might have expected newspapers to have asked the courts to lift the injunction by now, given how widely the couple’s names have been circulating. But why pay lawyers for a story that would no longer be exclusive?
What’s changed since Spycatcher is not so much that newspapers and magazines publish some of their content on the internet. The real gamechanger is social media, which turns everyone with a smartphone into a publisher. Those based in England and Wales are bound by the injunction once they know about it and a pseudonym is likely to be little protection. The first few people to have broken the injunction must be particularly at risk; but they might think there is strength in numbers.
The broader question is whether celebrities should seek injunctions at all these days. If they hold, we don’t hear about them: this one apparently held for a couple of months. Even in the days of social media, not everything is online.
But injunctions sometimes rebound on the people who take them out. This is sometimes known as the Streisand effect, after Barbra Streisand’s attempt to suppress an aerial photograph of her cliff top home in Malibu in 2003 simply drew attention to it. It may be better to just keep your head down.
My own view is that all public figures are entitled to some degree of privacy, although they may forfeit this through hypocrisy. Until last week, I might have argued that the right to privacy includes the right to keep one’s tax returns private – although that right should be limited in the case of politicians and others in authority over us. That said, it will become even harder to persuade the best people to take jobs in public life if they are required to publish every detail of their financial affairs. We are entitled to know how much a judge is paid, but we cannot expect judges to tell us how they spend their money.
What’s beyond doubt is that advising a celebrity whether to take out an injunction is far from easy. The claimant in the “three-way sexual encounter” case was initially refused an injunction by Mr Justice Cranston. He said: “To my mind, the claimant does have a reasonable expectation that his sexual activities will remain private. However, it seems to me that the expectation of privacy is somewhat lower than might otherwise be the case because of the claimant’s own behaviour.”
The judge continued: “The claimant and his partner have portrayed an image of commitment. I accept… that does not necessarily mean they do not engage in sexual relations with other people. Commitment may not entail monogamy. But it seems to me that having promoted that particular public image there is a public interest in correcting it when the claimant has engaged in the sort of casual sexual relationships as demonstrated in the evidence to which I referred.”
But the court of appeal disagreed. I suspect that the claimant may live to regret having taken on the media if – or, as I suspect, when – the names of those concerned become known to us all.