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The Denning Law Journal 2011 Vol 23 pp 92-130 
 
 

PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 “SELLING MY STORY WILL SORT MY LIFE OUT” 

 
 

Robert Pearce1 
 
 

1  INTRODUCTION 
 

1.1  The Adakini Ntuli Story 
 
In March 2010 Adakini Ntuli sent Howard Donald a text message in 

which she said: 
 
“Why shud I continue 2 suffer financially 4 the sake of loyalty when 
selling my story will sort my life out?” 

 
We do not know what her story was because Mr Donald, a member of the 

pop band Take That, obtained a superinjunction forbidding both publication of 
her story and disclosure of the existence of the injunction. The Court of 
Appeal later allowed the parties to be named, but not the details of their 
relationship.2  

The first known superinjunction, the Trafigura injunction, was not 
concerned with privacy, but prohibited disclosure of a legally privileged 
internal company report concerning alleged dumping of toxic waste.3  
Injunctions preventing disclosure of confidential information have been 
available for almost two centuries.4 Their use to protect privacy is a 
controversial twenty-first century phenomenon which severely constrains the 
                                                      
1 BCL, MA, Hon LLD, FRSA; Professor in Law, the University of Buckingham; 
Visiting Professor, the University of Gloucestershire; Emeritus Professor, University 
of Wales Trinity Saint David. 
The author is grateful to Professor John Mee of University College Cork for helpful 
comments on a draft of this article.  Responsibility for all faults remains with the 
author. 
2 Ntuli v Donald [2010] EWCA Civ 1276, [2011] 1 WLR 294. 
3 The case is discussed in the Neuberger Report (see n 7) paras 6.1 to 6.4. There is no 
publicly available judgment. 
4 Since Prince Albert v Strange (1849) 1 Mac & G 25.  A recent example is Imerman 
v Tchenguiz [2011] 1 All ER 555. 



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freedom of the press to publish “kiss and tell” and more serious stories. It has 
been speculated that the number of superinjunctions could exceed 200,5  
although the absence of reliable statistics makes this hard to verify, and this 
figure may be an exaggeration or the result of differences in categorisation.6   

The Neuberger Report (Report of the Committee on Super-Injunctions: 
Super-Injunctions, Anonymised Injunctions and Open Justice)7 divides 
injunctions concealing the identity of the claimant into two groups: 
anonymised injunctions, where only the identity of one or more of the parties 
is concealed, and superinjunctions which also order that the existence of the 
injunction itself be kept secret.8  Press comment often groups both kinds of 
injunction together. The Neuberger Report definitions suggest that all 
anonymised injunctions and superinjunctions are interim orders granted 
pending full trial although it acknowledges that it is possible for a permanent 
injunction to be granted securing indefinite secrecy or anonymity9 and to be 
enforceable contra mundum.10 Permanent anonymity orders are said in the 
Neuberger Report to be rare,11 but if the facts assumed at the interim stage are 
proved, and the balancing of competing rights requires it, there is no juridical 
reason why permanent protection should be refused.12  

 
 
 
 

                                                      
5 See Privacy and Freedom of Expression: A Delicate Balance, lecture by Lord 
Neuberger at Eton, April 28th 2010. 
6 The Neuberger Report (see n 7) para 4.4.  The Report recommended better data 
collection and a one year pilot scheme was introduced from August 1st 2011. The 
Guardian  has produced a list of known superinjunctions: Butterworth and Wolfe-
Robinson, Guardian online August 5th 2011.  Savage, The Daily Star online, May 15th 
2011 has a longer list. 
7 Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised 
Injunctions and Open Justice, May 2011 (the “Neuberger Report”). This is the report 
of a committee convened by Lord Neuberger, Master of the Rolls, to consider mainly 
procedural issues concerning the grant of superinjunctions and similar orders. 
8 There is also a category of injunction known as a “hyperinjunction” which 
additionally contains a prohibition on discussing issues with third parties: Neuberger 
Report paras 6.9-6.22.  
9 Neuberger Report para 2.37. 
10 OPQ v BJM [2011] EWHC 1059. 
11 Neuberger Report para 2.35. 
12 See for instance Venables & Thompson v News Group Newspapers Ltd [2001] 
EWHC QB 32; [2001] Fam 430 (See also Venables v News Group Papers Ltd [2010] 
EWHC B18); RST v UVW [2009] EWHC 2448, [2010] EMLR 13 (cited in the 
Neuberger Report para 2.35 as an instance where the absence of a return date, thus 
creating a potentially permanent injunction, was justified).   



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1.2  Open Justice 
 
It is a longstanding principle of English law13 that justice should be seen 

to be done, and that in consequence judicial hearings should take place in 
public.14 Open justice may have had its origins in trials being held in the 
Royal Courts, which were open places, but it is now justified by policy 
considerations, including “winning ... public confidence and respect,”15 
exposing judges to scrutiny,16 and safeguarding against miscarriages of 
justice, such as false claims.17 As Jeremy Bentham said, “Publicity is the very 
soul of justice. It is the keenest spirit to exertion and the surest of all guards 
against improbity. It keeps the judge, while trying, under trial.”18  

Some exceptions to open justice are the result of specific legislation, such 
as the general rule in the Court of Protection that proceedings are conducted 
in private and judgments are not made public.19 In addition the Courts have a 
general authority under the Civil Procedure Rules20 to grant anonymity where 
it is considered necessary.21 In late 2009, counsel remarked to the Supreme 
Court, “"Your first term docket reads like alphabet soup,"22 and Lord Rodger, 
acknowledged “how deeply ingrained has the habit of anonymisation 
become”.23 The growth of exceptions to open justice has fuelled media 

                                                      
13 Dating back to time immemorial: see Neuberger Open Justice Unbound, The 
Judicial Studies Board Annual Lecture, March 16th 2011. 
14 Spigelman, The Principle of Open Justice: A Comparative Perspective (Address by 
the Hon JJ Spigelman AC, Media Law Resource Centre Conference, September 20th 
2005). 
15 Scott v Scott [1913] AC 417 at 473 per Lord Shaw. 
16 Scott v Scott [1913] AC 417 (Lord Diplock). 
17 JXF v York Hospitals NHS Foundation Trust [2010] EWHC 2800. 
18 Bowling (ed) Works of Jeremy Bentham (1843) Vol 4 at 316-317, cited in 
Spigelman, n 14 above. 
19 In exceptional cases, the hearing may be held in public and/or the judgment may be 
made public. See A v Independent News & Media Ltd [2010] EWCA Civ 343; 
Hillingdon v Neary [2011] EWHC 413 (COP); W v M & Ors [2011] EWHC 1197 
(COP) 
20 Civil Procedure Rules 39.2. The Neuberger Report has recommended that these 
rules should be reviewed. 
21 The principles which govern the grant of anonymity in the reporting of a hearing 
(except where governed by specific statutory provisions) are the same or substantially 
the same as those which apply to the grant of superinjunctions and anonymised 
injunctions: W v M [2011] EWHC 1197 (C). 
22 Re Guardian News and Media Ltd [2010] UKSC 1 at [1]. See Brennan What’s in a 
name? [2010] Denning LJ 197-207. 
23 Ibid. 



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concerns.24 Anonymised injunctions offend against the principle of open 
justice, and need special justification. 

 
2  RESPECT FOR PRIVACY 

 
2.1  Protection of Privacy at Common Law 

 
One of the principal reasons for the upsurge in anonymity rulings is the 

incorporation into English law of the European Convention on Human Rights 
(the ECHR) by the Human Rights Act 1998 (the HRA). Before this there was 
no direct protection for privacy. The law of defamation offered protection 
only against falsehoods. When Gordon Kaye (the star of the BBC comedy 
series ’Allo ’Allo!) was recovering from brain surgery following a serious 
accident, a journalist and photographer gained access to his private hospital 
room, took photographs, and claimed to have interviewed him. The Court of 
Appeal stated simply: “in English law there is no right to privacy, and 
accordingly there is no right of action for breach of a person's privacy.”25 
Privacy could sometimes be protected indirectly through the action for breach 
of confidence, as when the Duke of Argyll was prevented from publishing 
information about his third wife’s private conduct in the celebrated case of 
Argyll v Argyll.26 Publishing the information, acquired by him during the 
course of the marriage, would have breached the confidential relationship 
between married couples.  

All this changed with the implementation of the HRA. Most provisions of 
the the ECHR impose obligations on the State which are not directly 
enforceable against private citizens. Article 8 of the Convention, which states 
that “Everyone has the right to respect for his private and family life, his 
home and his correspondence” is different. The European Court of Human 
Rights (the European Court) has held that it imposes a positive obligation on 
the State, through the legislature and the courts, to respect, and therefore to 
promote, the interests of private and family life. As Buxton LJ said in 
McKennitt v Ash, “That means that a citizen can complain against the state 

                                                      
24 See, for instance Telegraph online May 8th 2011: Chef wins gagging order to 
suppress tribunal details where it was reported that despite opposition from two 
newspaper groups, no reasons were given for ordering anonymity for a celebrity chef: 
J v K Ltd, Central London Employment Tribunal May 4th 2011 
25 Kaye v Robertson (1991) FSR 62 at 66. An interlocutory injunction to restrain 
publication of the interview was granted on the ground that it was arguably a 
malicious falsehood to represent that the plaintiff had consented to it. 
26 [1967] Ch 302. 



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about breaches of his private and family life committed by other 
individuals.”27 

The European Court has developed a substantial jurisprudence relating to 
privacy.  The Court has held that Article 8’s protection is broad.  It includes 
protection for individuals wishing to express their own sexual identity28, 
protection from surveillance and interception of communications29, the right 
to develop one’s own personality,30 and the right to create relationships with 
others31, even in a public context.32  

 
2.2  Protection of Privacy now 

 
As a consequence of the HRA, the jurisprudence of the European Court 

has been “mainlined” into English law, creating an almost immediate impact 
upon the protection of privacy in domestic law. Recent cases create what can 
most accurately be described as a general principle of privacy, although as 
recently as 2004, the House of Lords maintained that there was no such high 
level principle,33 and that respect for privacy was essentially an extension of 
the tort of breach of confidence,34 which had in consequence been renamed as 
the “misuse of private information.”35 

What the cases now very clearly establish is that where there is a 
“reasonable expectation of privacy”, Article 8 of the ECHR is engaged and 
there is a prima facie case for protection.36  The reasonable expectation of 
privacy may arise from the way in which the information has been obtained, 37 

                                                      
27 [2006] EWCA Civ 1714 at [9]. 
28 Dudgeon v UK [1981] ECHR 5. 
29 Klass and others v Germany [1978] ECHR 4; Kennedy v UK [2010] ECHR 682. 
30 Botta v Italy [1998] ECHR 12. 
31 Niemietz v Germany [1992] ECHR 80; Jehova’s Witnesses of Moscow v Russia 
[2010] ECHR 887. 
32 PG and JH v United Kingdom, [2001] ECHR 550; Peck v United Kingdom, [2003] 
ECHR 44. 
33 Wainwright v Home Office [2004] 2 AC 406 at [28]-[35]. The case involved the 
strip search of visitors to a prisoner suspected of dealing in drugs. 
34 Douglas v Hello! Ltd (No3) [2006] QB 125 at [53]. 
35 Lord Nicholls of Birkenhead in Campbell v Mirror Group Newspapers Ltd [2004] 
2 AC 457 at [14] and [21]. For a description of how the law concerning the protection 
of confidence has developed, see paras [43]-[48] (Lord Hoffman). 
36 Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457, at [21] per Lord 
Nicholls of Birkenhead, and Murray v Big Pictures (UK) Ltd  [2008] EWCA Civ 446, 
at [24]. 
37 Douglas v Hello! Ltd (No 3)  [2005] EWCA Civ 595; AMM v HXW [2010] EWHC 
2457. 



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for instance by illegal means38 such as intercepting e-mails or telephone 
communications,39 where a message has been received by mistake,40  or 
through a traditional breach of confidence.41  In some cases weight has been 
placed on the fact that photographs have been taken surreptitiously with a 
camera smuggled into a private event42 or with the use of a telephoto lens,43 or 
that a private conversation has been covertly recorded.44 Deliberately 
targeting someone by “staking out” their home, or a place they are known to 
visit, may also be a relevant factor.45 

Some information, regardless of the way it is obtained, will be considered 
inherently private, and therefore entitled to protection. The boundaries of this 
concept have yet to be well clarified. In Douglas v Hello! Ltd (No 3)  Lord 
Phillips, delivering the judgment of the Court of Appeal asked:  

 
“What is the nature of 'private information?' It seems to us that it must 
include information that is personal to the person who possesses it and 
that he does not intend shall be imparted to the general public.”46 
 
In Theakston v Mirror Group Newspapers Ltd47 Ouseley J declined to 

grant an injunction to prevent the Sunday People disclosing that a television 
presenter had visited a brothel and engaged in sexual activities with three 
prostitutes. He considered that there could be no blanket rule guaranteeing a 

                                                      
38 Hellewell v Chief Constable [1995] 1 WLR 804 at 807. 
39 Goldsmith & Khan v BCD [2011] EWHC 674; Inerman v Tchenguiz [2011] 1 All 
ER 555. 
40 YYZ v YVR [2011] EWHC 274. 
41 McKennitt v Ash [2006] EWCA Civ 1714 (information about a music star obtained 
by an aide). 
42 Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; Mosley v News Group 
Newspapers Ltd [2008] EWHC 1777. 
43 Holden v Express Newspapers Ltd, June 7th 2001, Eady J (referred to by Ouseley J 
in Theakston v Mirror Group Newspapers Ltd. [2002] EWHC 137 at [41]); Campbell 
v Mirror Group Newspapers Ltd [2004] 2 AC 457 at [123]; Murray v Big Pictures 
(UK) Ltd  [2008] EWCA Civ 446 at [50]; Von Hannover v Germany [2004] ECHR 
294. 
44 D v L [2003] EWCA Civ 1169 at [24] and [34]. 
45 Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 at [123]; Murray v Big 
Pictures (UK) Ltd [2008] EWCA Civ 446; [2009] Ch 481 at [50] and [57]. It is 
possible for different views to be held as to whether the element of harassment or 
stalking by paparazzi was an important ingredient in the decision in Von Hannover v 
Germany [2004] ECHR 294: see Murray at [43]ix; compare JIH v News Group 
Newspapers Ltd, [2010] EWHC 2818 at [59]. 
46 [2006] QB 125 at [83]. 
47 [2002] EWHC 137. 



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presumption of privacy or confidentiality for sexual conduct. Shortly 
afterwards, the Court of Appeal held that it was not appropriate to grant 
anonymity to a premier league footballer who, despite being married with two 
children, had engaged in casual sexual relationships with a lap dancer and 
another woman, but did not want his wife to discover this.48  

This robust view appears to have been displaced by a more protective 
attitude. In Mosley v News Group Newspapers Ltd49 the News of the World 
published a report that the President of the Fédération Internationale de 
l'Automobile (the governing body for Formula 1 motor racing) had engaged in 
what it claimed was a “sick Nazi orgy with 5 hookers”. The key issue was 
whether there was an expectation of privacy. Eady J’s view was clear. He said 
that generalisations were best avoided:  

 
“Nevertheless, one is usually on safe ground in concluding that 
anyone indulging in sexual activity is entitled to a degree of privacy – 
especially if it is on private property and between consenting adults 
(paid or unpaid).”50 
 
It is hard to generalise about what other information which will be 

considered private. The location of the activity is not conclusive. In Von 
Hannover v Germany51 the European Court held that German magazines were 
wrong to publish paparazzi photographs showing Princess Caroline of 
Monaco engaging in ordinary activities in public places. She was not carrying 
out public duties and no other justification for the publication of the 
photographs had been made. Similar decisions have been made by English 
courts.52 Much depends upon the impact that publication will have. Lord Hope 
in Campbell v Mirror Group Newspapers Ltd suggested that where it is not 
obvious that information is private, “the broad test is whether disclosure of the 
information about the individual ("A") would give substantial offence to A, 
assuming that A was placed in similar circumstances and was a person of 
ordinary sensibilities.”53 A relatively tough approach to this question was 
suggested in Ambrosiadou v Coward.54 Lord Neuberger MR remarked: 

 

                                                      
48 A v B & C [2002] 1 FLR 1021. 
49 [2008] EWHC 1777. 
50 [2008] EWHC 1777 at [98]. 
51 [2004] ECHR 294. 
52 Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 at [123]; Murray v Big 
Pictures (UK) Ltd [2008] EWCA Civ 446. 
53 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 at [92]. 
54 [2011] EWCA Civ 409. 



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“While respect for family and private life is of fundamental 
importance, it seems to me that the courts should, in the absence of 
special facts, generally expect people to adopt a reasonably robust and 
realistic approach to living in the 21st century.” 55 
 

2.3  Publicity destroys Privacy? 
 
Under the old law of confidence, when information enters the public 

domain, the courts will not protect it further by injunction.56  The same 
principle has been applied to privacy, 57 provided the information is generally 
available.58  In the Mosley case,59 Eady J declined to grant an injunction 
requiring the News of World to remove a covertly taken video from its website 
because: 

 
 “the material is so widely accessible that an order in the terms sought 
would make very little practical difference. One may express this 
conclusion either by saying that Mr Mosley no longer has any 
reasonable expectation of privacy in respect of this now widely 
familiar material or that, even if he has, it has entered the public 
domain to the extent that there is, in practical terms, no longer 
anything which the law can protect. The dam has effectively burst.”60 
 
Conversely, it has been said that “in the context of personal information 

(as opposed to commercial secrets) it does not necessarily follow, from the 
fact that something has been published, that further coverage cannot itself 
infringe a claimant's privacy.”61 This could be especially true of photographs, 

                                                      
55 [2011] EWCA Civ 409 at [30]. 
56 Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109 (the Spycatcher 
case). See also Attorney General v Blake [2000] UKHL 45, [2001] 1 AC 268 (secrecy 
no longer applied following revelations by the spy and traitor George Blake – State 
left to pursue remedies in damages or account of profits); British Broadcasting 
Corporation v HarperCollins Publishers Ltd [2010] EWHC 2424 (identity of “the 
Stig” no longer secret). 
57 X & Y v Persons Unknown [2006] EWHC 2783 at [38]. 
58 ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 at [11]; Browne v 
Associated Newspapers Ltd [2007] EWCA Civ 295 at [61]. 
59 [2008] EWHC 687 (hearing on damages [2008] EWHC 1777). 
60 [2008] EWHC 687 at [36]. See also to the same effect ETK v News Group 
Newspapers Ltd [2011] EWCA Civ 439 at [10]. 
61 X & Y v Persons Unknown [2006] EWHC 2783 at [64]; JIH v News Group 
Newspapers Ltd [2010] EWHC 2818 at [59]; TSE v News Group Newspapers Ltd 
[2011] EWHC 1308]. 



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for instance images of “a film star ... photographed, with the aid of a telephoto 
lens, lying naked by her private swimming pool”.62 

 
2.4  Whose Privacy? 

 
It is not only the claimant’s privacy that has to be considered. In Re 

Guardian News and Media Ltd, HM Treasury v Ahmed,63 the main case made 
in argument for affording anonymity to a number of individuals suspected of 
involvement in terrorism was the impact upon relatives. The impact on 
children may be particularly relevant.64 In ETK v News Group Newspapers 
Ltd,65 although an affair between two journalists was an open secret amongst 
colleagues, the Court of Appeal refused to allow it to be made more widely 
known partly because of the impact of publicity on the man’s children. 
Similarly, in CC v AB,66 the effect that disclosure would have on the 
claimant’s wife, who was in a fragile mental state and was attempting to 
rebuild her marriage, was a reason for granting an injunction to prevent a 
cuckolded husband, in revenge, publishing the fact that his wife had had an 
affair with the claimant. Even where the court has not been asked to take 
account of the rights of a party, it can act on its own initiative if that person’s 
Article 8 rights are engaged.  In CDE v Mirror Group Newspapers Ltd,67 
when granting an injunction to prevent revelations about a virtual sexual 
relationship involving a minor celebrity, Eady J was influenced by the impact 
that the contemplated coverage would have on the family of one of the others 
involved.  

 
3  THE NEW METHODOLOGY 

 
3.1  A Question of Balance 

 
Before the HRA the debate about anonymity was conducted largely on the 

basis of the balance between the principles of open justice and of 
confidentiality. The balance is now principally between the rights to respect 
for privacy and family life under Article 8, and to freedom of expression 
under Article 10. The principle of open justice remains relevant even where 

                                                      
62 Douglas v Hello! Ltd (No 3) [2006] QB 125 at [105]. 
63 [2010] UKSC 1. 
64 See Murray v Big Picture (UK) Ltds [2008] EWCA Civ 446 (publication of 
photographs of son of JK Rowling) and Ivereigh v Associated Newspapers Ltd [2008] 
EWHC 339 (anonymity agreed to protect family of witness in libel case). 
65 [2011] EWCA Civ 439. 
66 [2006] EWHC 3083. 
67 [2010] EWHC 3308. 



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no claim is made under Article 10. Neither the principles of confidentiality or 
of open justice nor rights under Articles 8 and 10 are absolute. There are, 
however, significant differences between the old and new approaches. 

Before the HRA the starting point was the principle of open justice, 
attenuated only where necessary in the interests of justice. The case for 
anonymity had to be compelling.68 The HRA has resulted in what has been 
described as a “new methodology.”69 The starting point is now to determine 
whether Article 8 is engaged, and if so, whether the presumption that privacy 
should be protected is displaced by other considerations including those set 
out in Article 10. In Re S (A Child) (Identification: Restrictions on 
Publication) Lord Steyn identified four propositions as emerging from 
Campbell v Mirror Group Newspapers Ltd70 where both articles 8 and 10 are 
engaged: 

 
 “First, neither article has as such precedence over the other. 
Secondly, where the values under the two articles are in conflict, an 
intense focus on the comparative importance of the specific rights 
being claimed in the individual case is necessary. Thirdly, the 
justifications for interfering with or restricting each right must be 
taken into account. Finally, the proportionality test must be applied to 
each. For convenience I will call this the ultimate balancing test.” 71 
 
In AMM v HXW Tugendhat J has said of this test that, “Having carried out 

the exercise prescribed by the Supreme Court in the two recent cases, the 
judge will either have a duty to make an anonymity order, or a duty not to 
make one... It is not a matter of the court's discretion.” 72 

 
3.2  Human Rights Act s12 

 
The government incorporated special provisions in to the HRA to address 

concerns about the potential impact on press freedom.73 Section 12 applies 
when a court is considering injunctions which may restrict freedom of 
expression.  The section states that no relief is to be granted in ex parte 
proceedings unless all practicable steps have been taken to notify the 
respondent, or there are compelling reasons why the respondent should not be 

                                                      
68 Scott v Scott [1913] AC 417. 
69 By Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) 
[2005] 1 AC 593 at [23]. 
70 [2004] AC 457. 
71 [2004] UKHL 47; [2005] 1 AC 593 at [17]. 
72 [2010] EWHC 2457 at [34]-[35]. 
73 See the Neuberger Report para 1.5. 



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notified.  It also requires the court to “have particular regard to the importance 
of the Convention right to freedom of expression” and in this context to the 
public interest, the extent to which information is in or is about to enter the 
public domain, and the provisions of any relevant privacy code. The section 
also provides that an injunction against publication before trial should not be 
granted “unless the court is satisfied that the applicant is likely to establish 
that publication should not be allowed.” 

In Cream Holdings Ltd v Banerjee74 the Court of Appeal had concluded 
“that the more obvious meaning of the words in s12(3) is ‘more likely than 
not to establish’ (rather than ‘has a real prospect of establishing’),”75 but 
nevertheless felt constrained to conclude that the test was the lower one given 
the impact that a higher test “would have on competing Convention rights.”76  
The House of Lords reversed the decision. Lord Nicholls, in an opinion with 
which the other Lords agreed, said: 

 
“the degree of likelihood of success at the trial needed to satisfy 
section 12(3) must depend on the circumstances. There can be no 
single, rigid standard governing all applications for interim restraint 
orders. Rather, on its proper construction the effect of section 12(3) is 
that the court is not to make an interim restraint order unless satisfied 
the applicant's prospects of success at the trial are sufficiently 
favourable to justify such an order being made in the particular 
circumstances of the case...  the general approach should be that courts 
will be exceedingly slow to make interim restraint orders where the 
applicant has not satisfied the court he will probably ('more likely than 
not') succeed at the trial.” 77 
 
Lord Nicholls felt that this compromise was “Convention-compliant”.78  

Whether it defends the principle of freedom of expression in the way 
Parliament anticipated is another matter. The Neuberger Report notes that 
“there is reasonable and legitimate argument whether the courts have 
interpreted HRA s12 as Parliament intended.”79 

 
 
 

                                                      
74 [2005] 1 AC 253. 
75 [2003] Ch 650 at [58]. 
76 [2003] Ch 650 at [59]. 
77 [2005] 1 AC 253 at [22]. 
78 [2005] 1 AC 253 at [23]. 
79 The Neuberger Report para 1.5. 



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3.3  Press Code of Practice 
 
Under the HRA s12(4), a court is required to have particular regard to 

“any relevant privacy code”, when considering injunctions relating to (inter 
alia) journalistic material which might affect the Convention right to freedom 
of expression.  The relevant code is the Press Complaints Commission Code 
of Practice.  The guidance the Code provides follows closely the terms of the 
ECHR and the developing English caselaw.  In part because of this close 
alignment, there have been very few cases in which the Code has added 
anything to the decision-making process.  For instance, in A v B & C80 Lord 
Woolf, setting out guidelines for considering privacy cases, said that the Code 
“is only one of a number of factors to be taken into account”.81  Likewise, in 
Campbell v Mirror Group Newspapers Ltd82 the Code was referred to by 
Baroness Hale as confirming the restoration by the House of Lords of the 
conclusion reached at first instance.  This does not mean that the Code is 
unimportant, for there may be cases where the Code of Practice contains 
requirements going beyond those required by law.  For instance the European 
Court considered in Mosley v UK83 that it would be inappropriate to condemn 
the English legal system for the absence of a requirement to notify the 
individual concerned prior to publication of potentially private information, 
but that a pre-notification requirement subject to a public interest exception 
could  sensibly be included in the Code of Practice.  Moreover, as Brooke LJ 
said in Douglas v Hello! Ltd “A newspaper which flouts clause 3 of the code 
is likely in those circumstances to have its claim to an entitlement to freedom 
of expression trumped by article 10(2) considerations of privacy.”84 

 
4  JUSTIFYING DISCLOSURE 

 
4.1  Competing Individual Rights 

 
Where Articles 8 and 10 most evidently come into conflict is where two 

individuals involved in the same actions differ about making them public. In 
Theakston v News Group Newspapers Ltd85 Ouseley J, considered that the 
right to freedom of expression of the prostitutes involved in a casual sexual 
encounter in a brothel outweighed the man’s claim to privacy.  A v B & C86 

                                                      
80 A v B & C [2003] QB 195. 
81 [2003] QB 195at [11](xiv). 
82 [2004] AC 457 at [159]. 
83 [2011] ECHR 774. 
84 [2001] QB 967 at [94]. 
85 [2002] EWHC 137. 
86 [2003] QB 195. 



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established that “the court will be less inclined to protect the rights of one 
party to a sexual relationship if the other party wishes to reveal what 
happened.”87 Privacy seems to have ranked higher in more recent cases.88 

 
4.2  Public Interest 

 
The justification that publication would be in the public interest is 

surprisingly rarely argued in opposing privacy orders.89 This may be because 
the argument has rarely been successful.90 There is a dichotomy between 
public interest arguments presented to Court and those made in newspaper 
comments. Sir Fred Goodwin, the erstwhile chief executive of the Royal Bank 
of Scotland, obtained an injunction banning a report that at a critical time 
leading to the bank’s collapse he had an affair with a female senior colleague. 
The order initially prevented even his occupation being mentioned because it 
might have led to his identification. A significant element in the campaign to 
lift the injunction was that the public had a right to know of the alleged affair 
in view of the public takeover of the bank and the possibility that the affair 
might in some way have contributed to the bank’s problems. The argument 
does not appear to have been put to the Court.91 

The sorts of situation which might give rise to a public interest 
justification are disclosure of activities which are in “breach of the country's 
security,92 or in breach of law, including statutory duty, fraud, or otherwise 
destructive of the country or its people, including matters medically 
dangerous to the public.”93 Disclosing a misuse of corporate power would be 
of legitimate public interest.94 In Campbell v Mirror Group Newspapers Ltd95  
the House of Lords apparently agreed with the concession made by Naomi 
Campbell that disclosure of her drug addiction was justified because it 

                                                      
87 The proposition was accepted in those terms by Eady J in CC v AB [2006] EWHC 
3083 at [32]. 
88 See the Imogen Thomas story below. 
89 See TSE v News Group Newspapers Ltd [2011] EWHC 1308; Butterworth and 
Wolfe-Robinson, Guardian online August 5th 2011. 
90 See the remark of Tugendhat J in TSE v News Group Newspapers Ltd [2011] 
EWHC 1308 at [11]. 
91 MNB v News Group Newspapers Ltd [2011] EWHC 528 at [6] and [18]; Goodwin v 
News Group Newspapers Ltd [2011] EWHC 1309 at [9]. 
92 The Profumo scandal might be an example: see CC v AB [2006] EWHC 3083 at 
[37]. 
93 Beloff v Pressdram [1973] RPC 765 at 783. 
94 See Browne v Associated Newspapers Ltd [2007] EWCA Civ 295; [2008] 1 QB 
103 at [52]; Goodwin v News Group Newspapers Ltd [2011] EWHC 1341 [14]. 
95 [2004] 2 AC 457 at [36]. 



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105 

corrected earlier, incorrect statements that she had made that she had no drug 
problem. Exposing hypocrisy on the part of a politician whose personal life is 
at odds with public claims would probably be treated similarly.96 

 A key distinction, repeatedly made in the cases, is that what is of interest 
to the public is not necessarily of public interest. Entertaining the public is not 
enough. As Lady Hale said in a libel case, Jameel v Wall Street Journal: 

 
“there must be a real public interest in communicating and receiving 
the information. This is, as we all know, very different from saying 
that it is information that interests the public – the most vapid tittle-
tattle about the activities of footballers' wives and girlfriends interests 
large sections of the public but no-one could claim any real public 
interest in our being told all about it.” 97 
 
In ETK v News Group Newspapers Ltd98 Ward LJ considered that the 

decisive factor in assessing public interest “is the contribution the published 
information will make to a debate of general interest.”99 It is hard to see how 
this advances an understanding of the public interest since debates of general 
interest frequently relate to “vapid tittle-tattle”. Refusing to permit proposed 
revelations about a journalist’s extra-marital affair which led to the sacking of 
a colleague, he set out other criteria: 

 
“Here there is no political edge to the publication. The organisation of 
the economic, social and political life of the country, so crucial to 
democracy, is not enhanced by publication. The intellectual, artistic or 
personal development of members of society is not stunted by 
ignorance of the sexual frolics of figures known to the public." 100 
 
 
 

                                                      
96 Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892, at p 989 per Sir 
John Donaldson MR; the argument would probably not succeed with a footballer or a 
musician who had not made direct claims to a squeaky clean personal life: see TSE v 
News Group Newspapers Ltd [2011] EWHC 1308 at [11]; Lee v News Group 
Newspapers Ltd [2010] NIQB 106 at [46]. 
97 [2006] 2 AC 465 at [147].  The case has been cited as accurately stating the law in 
privacy cases: see n 152 below. 
98 [2011] EWCA Civ 439. 
99 See also Re Guardian News and Media Ltd [2010] UKSC 1. This formulation of 
the test is derived from the judgment of the European Court in Von Hannover v 
Germany (2005) 40 EHRR 1. 
100 [2011] EWCA Civ 439 at 10. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

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4.3  Wider Public Interest 
 
As was explained above,101 the principle of open justice is itself based 

upon the public interest. It has also been recognised that there is a public 
interest in having active news media, not just at the national level, but also in 
local publications. If newspapers are unable to print what interests the public, 
they will sell fewer copies, and this can jeopardise their viability.102 Such 
general arguments about the public interest will not suffice in justifying 
disclosure of private information.  

Considerations of  wider public interest have, however, influenced the 
courts (albeit only in a limited way) in their policy of allowing anonymised 
information about injunctions to be made public, rather than naming the 
claimant without explaining the reasons for the injunction. Lord Neuberger in 
JIH v News Group Newspapers Ltd said that, when a restriction was required, 
the public interest was better served by the first of these two options.103 

 
4.4  Onus of Proving Public Interest 

 
The person claiming a public interest justification bears the onus of 

proof.104 In the Goodwin case Tugendhat J did not accept that disclosure was 
justified by a possible breach of corporate governance rules at the Royal Bank 
of Scotland since no evidence was provided of those rules other than a print 
out of the group “Code of Conduct on Integrity Matters”, and counsel 
admitted that direct enquiries had not been made of the parties involved or 
within the Bank.105  

 
5  PROPORTIONALITY 

 
5.1  Interference must be Proportional 

 
The concept of proportionality has become a legal theme as significant in 

late 20th and early 21st  century jurisprudence as the concept of reasonable 
forseeability was in the half century following Donoghue v Stevenson.106 It is 
a key component in the balancing exercise between Articles 8 and 10. As 
Lord Neuberger said in his lecture on Privacy and Freedom of Expression:  

                                                      
101 See §1.2 above. 
102 A v B & C [2003] QB 195 at [11] (xii). 
103 [2011] EWCA Civ 42 at [33].  See below §5.2. 
104 Hutcheson (Formerly Known As "KGM") v News Group Newspapers Ltd [2011] 
EWCA Civ 808 at [31]. 
105 Goodwin v News Group Newspapers Ltd [2011] EWHC 1309 at [17]-[19]. 
106 [1932] AC 562, 



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107 

 
“When considering the conflict between the two the court is required 
to do three things: first, it must intensely scrutinise the comparative 
importance of the specific rights claimed in the particular case; it must 
then consider the justifications set out for interfering with or 
restricting each right; and finally, the court must consider the 
proportionality of the proposed interference or restriction.” 107   
 
Since at least JIH v News Group Newsapapers Ltd108, in which guidelines 

were laid down by the Court of Appeal, the courts have enunciated the 
principle that “restrictions on reporting should always be kept to a 
minimum,”109 although press commentary disputes that this has happened in 
practice.  

 
5.2  Tailoring the Remedy 

 
In most cases where disclosure of a sexual relationship has been 

permitted, the disclosure allowed has been confined to the fact of the 
relationship, with the omission of the salacious details (like the famous but 
probably untrue account of David Mellor wearing his Chelsea United kit for a 
sexual encounter110) that often characterised pre HRA accounts.111  Tugendhat 
J pointed out in Gray v UVW that: 

 
“There is a range of measures open to the court to protect the Article 8 
rights of the parties. These include a variety of measures to prohibit or 
prevent disclosure of the information sought to be protected, and an 
order prohibiting disclosure of the identity of one or both parties. But 
each measure is cumulative. The fact that one such measure may be 
necessary is not a reason for concluding that they are all necessary. On 
the contrary, the measures as a whole must be no more than is 
necessary and proportionate, and if one measure is adopted, then that 
may mean that an additional measure is not necessary.”112 
 

                                                      
107 Privacy and Freedom of Expression: A Delicate Balance, lecture by Lord 
Neuberger at Eton, April 28th 2010. 
108 JIH v News Group Newspapers Ltd [2011] EWCA Civ 42. 
109 Ibid at [29]. 
110 A story which featured on the front page of the The Sun in July 1992. 
111 Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137 at [75]; John Terry 
(previously referred to as LNS) v Persons Unknown [2010] EWHC 119.  
112 [2010] EWHC 2367 at [56]. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

108 

Hirschfeld v McGrath113 offers an example of a tailored remedy. The 
defendant was proposing to write an autobiography that his ex-wife feared 
would contain private information about her health and other matters during 
their married life.  The original anonymised injunction was amended to name 
the parties following the hearing on the return date because it was 
acknowledged that since the husband gave undertakings not to make the 
disclosures, there was no longer a need for anonymity.  

 
5.3  The Extent of the Intrusion  

 
A crucial consideration is the extent of the intrusion into privacy. The 

publication of photographs is seen as considerably more intrusive114 and much 
less likely to be permitted than publication of an account in words. 115  In 
Callaghan v Independent News & Media Ltd116 a convicted sexual murderer 
objected to the publication of photographs, taken in a cafe and a shopping 
centre, that might help to identify him. The Northern Ireland High Court 
granted the injunction, although his name, his age, and details of his crime 
could still be published.117   

 
5.4  Truth or Falsity 

 
Unlike the law of defamation, which is concerned with the publication of 

falsehoods, the protection of private and family life applies whether or not 
allegations are true. This was resolved in McKennitt v Ash118. The Court of 
Appeal held that “the defendant cannot deprive the claimant of his Article 8 
protection simply by demonstrating that the matter is untrue”.119 Eady J 
explained in CTB v News Group Newspapers Ltd: 

 

                                                      
113 [2011] EWHC 249. 
114 Douglas & Ors v Hello! Ltd (No 3) [2006] QB 125 at [84]; Von Hannover v 
Germany 40 EHRR 1 at [59]. 
115 Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457; Theakston v Mirror 
Group Newspapers Ltd [2002] EWHC 137; Amanda Holden v Express Newspapers 
Ltd (June 7th 2001). 
116 [2009] NIQB 1. 
117 Callaghan v Independent News & Media Ltd [2009] NIQB 1. Compare Murray v 
Newsgroup Newspapers Ltds [2010] IEHC 248 in the Republic of Ireland, where 
Callaghan was distinguished, and a different decision reached. 
118 [2006] EWCA Civ 778. 
119 McKennitt v Ash [2006] EWCA Civ 1714. See also AMM v HXW [2010] EWHC 
2457 at [14].  Doubts about the availability of an injunction in similar circumstances 
had been expressed by Tugendhat J in RST v UVW [2009] EWHC 2448. 



THE DENNING LAW JOURNAL 
 
 

109 

“It is important always to remember that the modern law of privacy is 
not concerned solely with information or "secrets": it is also 
concerned importantly with intrusion.” 120 
 
The falsity of a statement may be relevant in weighing the balance 

between Articles 8 and 10. As was said in McKennitt v Ash121, the falsity of 
allegations will undermine a public interest justification. Untrue allegations 
may also increase the degree of intrusion into privacy since a failure to refute 
the allegations could be seen as acknowledging their truth.122 A false public 
interest claim, like the incorrect assertion in the Mosley case that there was a 
Nazi theme to a sado-masochistic sex party,123 may also “rub salt into the 
wound,” and be reflected in the award of damages.124 

Tugendhat J had little hesition in ZAM v CFW125 in granting an injunction 
to prevent the dissemination of libellous allegations of misappropriation of 
funds from family trusts, which, if unchecked, would have constituted 
harassment.  Although he accepted that it was unusual to grant injunction to to 
prevent the making of defamatory statements, the defendants had made no 
representations suggesting that any defence could be provided that would 
succeed at trial.126  

 
5.5  Blackmail 

 
In some “kiss and tell” cases, the person seeking publicity for their story 

has first contacted the celebrity involved seeking payment with the implicit or 
explicit threat or understanding that publication will follow if they do not 
comply.127 In Theakston v Mirror Group Newspapers Ltd, Ouseley J was only 
prepared to block publication of information obtained specifically for the 
purpose of blackmail, and not other information.128 Other cases have not made 
the same distinction.129 AMM v HXW130 the ex-wife of a television presenter 

                                                      
120 [2011] EWHC 1326 at [78]. 
121 [2008] QB 73 at [79]. 
122 XJA v News Group Newspapers Ltd [2010] EWHC 3174 at [8]. 
123 See Cathcart, Code Breakers, Index on Censorship, June 30th 2011. 
124  Mosley v News Group Newspapers Ltd [2008] EWHC 2341 at [29]; [2008] 
EWHC 1777 at [222]. 
125 [2011] EWHC 476. 
126 Citing Bonnard v Perryman [1891] 2 Ch 269 and Greene v Associated 
Newspapers Ltd [2005] QB 972. 
127 See Ntuli v Donald [2011] 1 WLR 294; Theakston v Mirror Group Newspapers 
Ltd. [2002] EWHC 137.  
128 [2002] EWHC 137 at [70] and [80]. 
129 For example DFT v TFD [2010] EWHC 2335.   



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

110 

was proposing to disclose information about their relationship including an 
alleged affair after their divorce.  It is very unlikely that any of the 
information was acquired for the purpose of blackmail.  Tugendhat J 
considered that “The fact that a person is making unwarranted demands with 
threats to disclose information does not of itself mean that that person has no 
right to freedom of expression.”131 There might even be cases where the 
blackmailer was under a duty to disclose the information.  However: 

 
 “if a person is making unwarranted demands with threats to publish, 
that is a factor in deciding whether that person has any Art 10 rights, 
and, if so, then the weight to be accorded to them in balancing them 
with the applicant's Art 8 rights. In my judgment, the need to have 
regard to the Art 8 rights of the Claimant, and to promote the public 
interest in preventing and punishing blackmail are both factors which 
weigh strongly in favour of the grant of an anonymity order.”132  
 
In the same way, the fact that information has been obtained by 

manipulation, subterfuge or pressure is likely to be a factor in any assessment 
of proportionality.133 

 
5.6  Courting Publicity 

 
Well before the HRA, Bridge LJ said in Woodward v Hutchin:  
 
“It seems to me that those who seek and welcome publicity of every 
kind bearing upon their private lives so long as it shows them in a 
favourable light are in no position to complain of the invasion of their 
privacy by publicity that shows them in an unfavourable light.” 134  
 
This view has been repeated since the HRA came into force. In A v B & C  

Lord Woolf said: “If you have courted public attention then you have less 
ground to object to the intrusion which follows.” 135 An identical view was 

                                                                                                                               
130 [2010] EWHC 2457.  Also applied in POI v The Person Known As Lina [2011] 
EWHC 25. 
131 [2010] EWHC 2457 at [38]. 
132 [2010] EWHC 2457 at [38]-[39]. Sharp J adopted the same logic in KJH v HGF 
[2010] EWHC 3064 at [11]. 
133 CDE v MGN Ltd [2010] EWHC 3308 at [40]. 
134 [1977] 1 WLR 760 at 765 (Lord Denning concurring). 
135 [2003] QB 195 at [11].  See also Hutcheson (Formerly Known As "KGM") v News 
Group Newspapers Ltd [2011] EWCA Civ 808. 



THE DENNING LAW JOURNAL 
 
 

111 

taken in Murray v Big Pictures (UK) Ltd136 where the issue concerned the 
right to privacy of the son of JK Rowling. The Court of Appeal accepted the 
view of the trial judge that: 

 
“it is difficult to see how ... a famous parent who chooses to exploit 
his children to gain personal publicity could avoid publication of 
photographs taken of his children in a public place simply by resorting 
to the device of making that child the Claimant.”137 
 
In Hickey v Sunday Newspapers Ltd138 the Irish High Court declined to 

grant damages for the publication of pictures of the plaintiff leaving the 
Registry Office with her child from a relationship with the husband of a well-
known performer called “Twink”139, partly because the “plaintiff had spoken 
to a journalist with the specific intention of publicity being accorded to the 
very matters in respect of which she now seeks to claim privacy.”140  

 
5.7  Public Figures 

 
The extent to which there is a reasonable expectation of privacy or a 

public interest in disclosure may be affected by a person’s public profile. In A 
v B & C141 Lord Woolf, in setting out guidelines for first instance judges to 
follow in privacy cases, referred to Council of Europe Resolution 116 5 of 
1998 which states:  

 
“Public figures must recognise that the special position they occupy in 
society – in many cases by choice – automatically entails increased 
pressure on their privacy.142 Public figures are persons holding public 
office and/or using public resources and, more broadly speaking, all 
those who play a role in public life, whether in politics, the economy, 
the arts, the social sphere, sport or in any other domain.”143 

 
In this context Lord Woolf observed that:  
 

                                                      
136 2008] EWCA Civ 446. 
137 [2008] EWCA Civ 446 at [15] and [38]. 
138 [2010] IEHC 349, [2011] 1 ILRM 333. 
139 Also known as Adele King. 
140 [2010] IEHC 349 (the judgment does not contain numbered paragraphs). 
141 [2003] QB 195. 
142 Council of Europe Resolution 116 5 of 1998 para 6. 
143 Council of Europe Resolution 116 5 of 1998 para 7. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

112 

“A public figure is entitled to a private life. The individual, however, 
should recognise that because of his public position he must expect 
and accept that his actions will be more closely scrutinised by the 
media. Even trivial facts relating to a public figure can be of great 
interest to readers and other observers of the media.”144  
 
This strongly suggests that the boundary between public and private life is 

drawn at a different place in respect of public figures. However, some 
subsequent cases have cast doubt on this. Lord Phillips MR in Campbell v 
Mirror Group Newspapers Ltd said that:  

 
“When Lord Woolf spoke of the public having 'an understandable and 
so a legitimate interest in being told' information, even including 
trivial facts, about a public figure, he was not speaking of private facts 
that a fair-minded person would consider it offensive to disclose.”145 
 
Lord Neuberger has gone further still (in the context of responding to 

newspapers suggesting that celebrities were benefiting from legal processes 
which would not be available to those with more limited means) in saying,  
“no special treatment should be accorded to public figures or celebrities: in 
principle, they are entitled to the same protection as others, no more and no 
less.”146 

 
5.8  Role Models 

 
Lord Woolf in A v B & C observed that it was relevant that “Footballers 

are role models for young people and undesirable behaviour on their part can 
set an unfortunate example.”147 Subsequent decisions appear to have distanced 
from this view. In McKennitt v Ash 148 Buxton LJ suggested that Lord Woolf’s 
remarks on this point were directed principally at disreputable conduct 
(presumably because disclosure of disreputable conduct could be justified as 
in the public interest). Baroness Hale in Campbell v Mirror Group 
Newspapers Ltd was even more emphatic, observing: “It might be questioned 
why, if a role model has adopted a stance which all would agree is beneficial 
rather than detrimental to society, it is so important to reveal that she has feet 

                                                      
144 A v B & C [2003] QB 195 at [11] (xii). 
145 [2003] QB 633 at [40]. 
146 JIH V News Group Newspapers Ltd [2011] EWCA Civ 42 at [21](6). 
147 [2003] QB 195 at [43] (vi). 
148 McKennitt v Ash [2006] EWCA Civ 1714 at [65]. 



THE DENNING LAW JOURNAL 
 
 

113 

of clay.”149 It does not appear even to have been argued in the more recent 
cases involving footballers that their position as role models justifies a more 
intense focus on their behaviour or a more restricted view of what could 
reasonably be considered to be private. 

 
6  THE IMOGEN THOMAS STORY 

 
6.1  The Background to the Story 

 
The Imogen Thomas story was at the centre of a crisis in the relationship 

between the courts, parliament, and the media, and it illustrates many of the 
issues concerning superinjunctions and anonymity orders. It involved a “kiss 
and tell” relationship between two “celebrities”, one an originally unidentified 
footballer with a wife and family, the other a former Big Brother contestant.  

On April 14th 2011 a story appeared in The Sun reporting that Imogen 
Thomas had a sexual relationship with a Premier League footballer over a 
period of six months. His name was not revealed because of an agreement 
with a Sun journalist on April 13th that his name would not be disclosed 
pending a court hearing the following day. In the afternoon of April 14th Eady 
J granted an order prohibiting disclosure of the footballer’s identity until a 
further hearing scheduled for the following week. Following that hearing, 
Eady J confirmed the anonymity order.150  

 
6.2  The Process applied 

 
Eady J applied the new methodology. The footballer and his family had a 

reasonable expectation of privacy. “In this case, as in so many others, there 
can be no doubt on that score. It is concerned with conduct of an intimate and 
sexual nature and, what is more, there has been no suggestion in this case that 
the relationship, for so long as it lasted, was conducted publicly.”151 Against 
this, no public interest argument had been made. It was argued that the 
information was already in the public domain, but  Eady J said “When the 
matter was before me, I was not persuaded that there was by that time nothing 
left to protect in respect of which the claimant still had a reasonable 
expectation of privacy.” 152 

                                                      
149 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 at [151] echoing the 
similar sentiment of Lord Phillips in the Court of Appeal [2003] QB 633 at [41]. 
150 His judgment giving his reasons was not published until May 16th 2011, and 
further argument took place on issues discussed below in CTB v News Group 
Newspapers Ltd [2011] EWHC 1232. 
151 CTB v News Group Newspapers Ltd [2011] EWHC 1232 at [23]. 
152 CTB v News Group Newspapers Ltd [2011] EWHC 1232 at [30]. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

114 

Eady J then took into the balance the rights of Imogen Thomas and of the 
journalists to exercise their freedom of expression rights by selling and 
publishing the story. He said: 

 
“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 the House of Lords as "tittle-tattle about 
the activities of footballers' wives and girlfriends": see eg Jameel v 
Wall Street Journal Europe SPRL.153 It has recently been re-
emphasised by the Court in Strasbourg that the reporting of ‘tawdry 
allegations about an individual's private life’ does not attract the 
robust protection under Article 10 afforded to more serious 
journalism. In such cases, ‘freedom of expression requires a more 
narrow interpretation’: Mosley v UK.154”155 
 
The case for an injunction was strengthened by evidence which, although 

denied by Imogen Thomas (who had engaged the publicist Max Clifford to 
help her exploit her story), suggested a crude attempt at both blackmail and at 
a “set-up” hotel meeting to enable photographs to be taken. Counsel for the 
claimant told the judge that Ms Thomas had asked for £50,000, a sum which 
she later increased to £100,000, in return for keeping quiet. Eady J’s view, on 
the evidence available to him, was that the applicant would be likely to obtain 
a perpetual injunction at a full trial, and it was therefore appropriate to 
continue the interim injunction. He made an order to that effect, with his 
judgment being handed down three weeks later. 

 
6.3  Footballer identified online 

 
Media interest in superinjunctions and anonymity orders became intense, 

with almost daily coverage in the print and broadcast media. A Twitter site 
(on a server located outside the UK) was created for subscribers to speculate 
as to which celebrities had obtained privacy orders. This case was one of the 
most popular, with a large majority correctly identifying the footballer. The 
footballer’s response was reportedly twofold. First, on May 18th 2011 he 
commenced an action against Twitter seeking disclosure of the names of 
individuals who had posted his name on the site.156 Secondly, because lawyers 
                                                      
153 [2007] 1 AC 359 at [147]. 
154 [2011] ECHR 774, at [114]. 
155 CTB v News Group Newspapers Ltd [2011] EWHC 1232 at [34]. 
156 Josh Halliday, Guardian online, May 20th 2011. Twitter complied with a 
disclosure order brought in the US by a UK litigant complaining of libel (Sunday 
Telegraph May 29th 2011). 



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115 

for the footballer suspected a leak from News Group Newspapers (NGN), 
publishers of The Sun, an application was made to Eady J for disclosure of e-
mail traffic and SMS messages by employees of the company, and by Kelvin 
MacKenzie, a journalist who wrote for The Sun, containing any reference to 
the claimant. Kelvin MacKenzie appears to have been named because he 
disclosed in a broadcast on BBC Radio on the morning of April 30th that he 
regularly passed on the identities of claimants who had been granted 
injunctions, and that he sought to undermine anonymity orders by dropping 
“hints in his articles to give any interested readers a steer as to who might be 
covered by an order.”157 Argument on this issue was heard on the same day as 
Eady J handed down his judgment on the continuation of the anonymity order. 
Eady J also heard argument from NGN that the growing information on the 
internet and in foreign publications meant that the identity of the footballer 
had so entered the public domain that to maintain the injunction would leave 
the court looking like King Canute seeking to hold back the tides.158  

 
6.4  Further developments 

 
Events then started to move more rapidly. At the end of the week in which 

Eady J heard argument, Lord Neuberger MR published his long-awaited 
report on superinjunctions. This did nothing to suppress media disquiet about 
the growing use of “gagging orders”, and indeed may have increased concern 
since the press conference in which the report was made public appeared to be 
setting the judges and parliament on a potential collision course. Over the 
same weekend on 22nd May, the Sunday Herald, a newspaper which circulates 
only in Scotland, published a full front page picture of the footballer with only 
his eyes obscured and an editorial saying that it was "unsustainable" for 
newspapers not to be able to print information widely available on the 
internet, adding "The issue is one of freedom of information and of a growing 
argument in favour of more restrictive privacy laws." The newspaper had 
received legal advice that the English Courts’ injunction did not apply in 
Scotland. 

The following day the Prime Minister confessed on ITV’s daybreak 
programme, that “like everybody else” he knew the identity of the footballer, 
and added, echoing the concerns expressed by the Sunday Herald:  

 

                                                      
157 See CTB v News Group Newspapers Ltd [2011] EWHC 1326 (May 23rd 2011); 
[2011] EWHC 1232 (hearing on May 16th) at [8]. 
158 See also CTB v News Group Newspapers Ltd [2011] EWHC 1326 at [18] and [24]. 
One version of this myth has it that Canute was in fact seeking to demonstrate to his 
subjects his powerlessness over nature rather than seeking to assert his omnipotence. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

116 

"It is rather unsustainable, this situation, where newspapers can't print 
something that clearly everybody else is talking about, but there's a 
difficulty here because the law is the law and the judges must interpret 
what the law is. What I've said in the past is, the danger is that 
judgments are effectively writing a new law which is what Parliament 
is meant to do. So I think the Government, Parliament has got to take 
some time out, have a proper look at this, have a think about what we 
can do, but I'm not sure there is going to be a simple answer." 
 
Later that morning, Eady J delivered his judgment on the arguments he 

had heard the previous week. He rejected the claim for disclosure of email and 
SMS traffic from Kelvin MacKenzie and NGN employees on the basis that 
the purpose of this disclosure was to demonstrate a contempt of court, and it 
was for the Law Officers of the Crown to take the initiative on this, with the 
court being slow to order the release of information which might result in self-
incrimination. He also rejected the argument that the ban on naming the 
footballer should be lifted because his name was so freely available on the 
internet. In his view the purpose of an injunction protecting private life was 
not just to preserve confidentiality or secrecy, but to prevent intrusion, and 
each new publication constituted a further intrusion: 

  
“In these circumstances, it seems to me that the right question for me 
to ask, in the light of JIH v News Group Newspapers Ltd159 and Re 
Guardian News and Media Ltd,160 is whether there is a solid reason 
why the Claimant's identity should be generally revealed in the 
national media, such as to outweigh the legitimate interests of himself 
and his family in maintaining anonymity. The answer is as yet in the 
negative. They would be engulfed in a cruel and destructive media 
frenzy. Sadly, that may become unavoidable in the society in which 
we now live but, for the moment, in so far as I am being asked to 
sanction it, I decline to do so.”161 
 

6.5  Footballer named in Parliament 
 
Eady J’s prophecy was very rapidly fulfilled. The same day, on Monday 

May 23rd 2011, in a House of Commons debate, John Hemming MP named 
Ryan Giggs as the footballer concerned, before being called to order by the 
Speaker who insisted that Parliamentary Questions should be used as an 
opportunity for raising issues of principle rather than for flouting court orders. 
                                                      
159 [2011] 2 All ER 324. 
160 [2010] UKSC 1. 
161 CTB v News Group Newspapers Ltd [2011] EWHC 1326 at [26]. 



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117 

By this stage, of course, the cat was out of the bag, and the identity of Ryan 
Giggs was broadcast prominently on all the main television channels. 

Finally that evening, NGN applied to have the anonymity order lifted 
because there remained no secrecy to protect. This was also rejected. 
Tugendhat J said: 

 
“It is obvious that if the purpose of this injunction were to preserve a 
secret, it would have failed in its purpose. But in so far as its purpose 
is to prevent intrusion or harassment, it has not failed. The fact that 
tens of thousands of people have named the claimant on the internet 
confirms that the claimant and his family need protection from 
intrusion into their private and family life. The fact that a question has 
been asked in Parliament seems to me to increase, and not to diminish 
the strength of his case that he and his family need that protection. The 
order has not protected the claimant and his family from taunting on 
the internet. It is still effective to protect them from taunting and other 
intrusion and harassment in the print media.”162  
 

6.6  Later revelations 
 
The futility of protecting Ryan Giggs by means of an injunction became 

more apparent as time passed.  Newspaper stories revealed that as well as the 
affair with Imogen Thomas, Ryan Giggs had also conducted an affair with the 
fiancée of his younger brother Rhodri and with a third woman.  The affair 
with the unnamed “third woman” lasted for two years, ending on his 
marriage; the affair with his brother’s fiancée ended only on her wedding 
day.163 Reports said that only weeks previously, she was paid £500 by Ryan 
Giggs to abort his child.164 

 
7  COMMENTARY ON THE CURRENT POSITION 

 
7.1  The press and the Courts 

 
Newspapers, both broadsheet and tabloid, have found privacy orders 

irksome, and have campaigned against them, principally through the pages of 
their newspapers rather than through the courts.  For instance, in MJN v News 

                                                      
162 CTB v News Group Newspapers Ltd [2011] EWHC 1334. He is also reported as 
saying “If a court can stop one person or five people.... – not 50,000 – is there not 
something to be achieved?": Josh Halliday and Ben Quinn, Guardian online, May 
23rd 2011. 
163 Daily Telegraph June 8th 2011; Daily Mail June 8th 2011. 
164 Greenhill and Narain, Mail online, June 13th 2011. 



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Group Newspapers Ltd165 Kimberley West, a lingerie model, sold to The Sun 
the story of her relationship with a married premier league footballer. The 
newspaper conceded that an injunction should be granted, but then ran 
headlines complaining that the story had been “gagged”. As has been seen, 
many other injunctions have been unopposed,166 and the public interest 
argument in publication is rarely put forward.167 This may be because the 
press does not consider it worthwhile168 or because it is using spurious claims 
about public interest to grandstand for the sake of good headlines.  

There has been judicial comment on inaccurate reporting,169 but the 
relationship between the press and the judiciary may not have been helped by 
some of the fine distinctions made by judges. For instance, in Goodwin v 
News Group Newspapers Ltd170 Tugendhat J claimed that the case had not 
involved a superinjunction because the existence of the order could be 
disclosed, even though disclosure was confined to saying “the Claimant was 
wealthy and married; and that he was a senior business executive.”171  The 
court order prohibited disclosure of Sir Fred Goodwin’s name or occupation, 
the name of the woman with whom he allegedly had an affair, or the fact that 
there had been a sexual relationship. The difference between this and a 
superinjunction as now defined in the Neuberger Report172 is surely so narrow 
that it is a question of semantics more than substance.  

 
 
 
 

                                                      
165 [2011] EWHC 1192. 
166 See, for example, MNB (later identified as Goodwin) v News Group Newspapers 
Ltd [2011] EWHC 528; MJN v News Group Newspapers Ltd [2011] EWHC 1192. 
167 See Butterworth and Wolfe-Robinson, Guardian online, August 5th 2011. 
168 Especially since the failure of the claim in Mosley v News Group Newspapers 
[2008] EWHC 1777 that an unproved Nazi theme justified disclosure of the events at 
a sado-masochistic sex party.  
169 See Goodwin v News Group Newspapers Ltd [2011] EWHC 1309; Goodwin v 
News Group Newspapers Ltd [2011] EWHC 1341 at [17]. See also Rozenberg, Mr 
Justice Eady on Balancing Acts, Index on Censorship, June 12th 2011. 
170 [2011] EWHC 1309. 
171 MNB v News Group Newspapers Ltd [2011] EWHC 528 at [17]. An order 
providing even less information than this was made in DFT v TFD [2010] EWHC 
2335, but is described by Tugendhat J in AMM v HXW [2010] EWHC 2457 at [40] 
and in the Neuberger Report para 2.27 as being an anonymised injunction rather than 
a superinjunction. 
172 See above, § 1.1. 



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7.2  Judicial and Public Responses 
 
One of the first reactions of the judiciary to publicly expressed disquiet 

about superinjunctions was to put limits upon their use. In Ntuli v Donald173 
Maurice Kay LJ, delivering a judgment with which the other members of the 
court of appeal agreed, observed that “Superinjunctions attract understandable 
controversy.”174 He pointed out that a superinjunction was not necessary 
because Howard Donald could have been protected by a simple anonymity 
order or by a prohibition restraining the disclosure of details of the 
relationship.175 The same approach was adopted in JIH v News Group 
Newspapers Ltd176 where, after laying out guidelines governing the use of 
superinjunctions or anonymity orders, Lord Neuberger accepted as a general 
proposition that anonymising the order or banning indentification of the 
confidential information were alternatives.177 Most injunctions since then, as 
the Neuberger Report indicates, have been anonymity orders rather than 
superinjunctions. Whilst this policy gives greater recognition to the values of 
open justice than would the use of superinjunctions, it may have had an 
unintended (although not unforeseen178) effect of fuelling speculation about 
the identity of the anonymised person involved. Whilst in years gone by that 
speculation might have taken place principally in parlours and public houses, 
it can now “go viral” over the internet. The speculation is not always accurate. 
On May 6th 2011 the Daily Mail reported that: 

 
“mother-of-two Mrs Logan became a victim of the privacy row after a 
judge granted an unprecedented worldwide gagging order to a married 
television star, permanently banning publication of pictures of him 
with a woman. Internet and Twitter gossips seized on the entirely false 
idea that the BBC sports presenter has had an affair with pundit and 
former England football captain Mr Shearer”. 
 
Jemima Khan similarly felt obliged several days later179 to deny rumours 

on the Twitter website that she had obtained a superinjunction to prohibit 

                                                      
173 [2010] EWCA Civ 1276. 
174 Ibid at [47].  
175 Ibid at [46]. 
176[2011] EWCA Civ 42.  
177 [2010] EWHC 2818 at [8] and [9]. 
178 JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 at [38]: “An anonymity 
order runs the risk of unintentionally encouraging suspicion and gossip in relation to 
innocent third parties.” 
179 Swinford, Telegraph online May 8th 2011. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

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publication of intimate pictures of herself and Jeremy Clarkson, the Top Gear 
presenter. 

Speculation about the names of stars who have obtained superinjunctions 
has become almost a sport in itself. Within two minutes of a Twitter account 
being set up to name the celebrities who had secured superinjunctions, “more 
than 2,000 people had signed up to follow updates and new postings.” Within 
days “the account had more than 26,000 followers.”180  

 
7.3  Disdain in Parliament 

 
Concerns have been expressed in Parliament about the use of anonymity 

orders, and advantage has been taken of Parliamentary privilege to name two 
claimants, Sir Fred Goodwin and Ryan Giggs. John Hemming MP, who 
named Ryan Giggs, said that he did so because he wanted to protect his 
constituents and others from legal process for having named him on the 
internet: 

 
“Basically when he... showed that he was going to go after relatively 
normal people and try and prosecute them, for gossiping about him on 
a matter of trivia, I think he has to be held to account for that.” 181 
 
The use of Parliamentary privilege in this way invoked the intervention of 

Mr Speaker, and adverse comment by senior judges. On the day that Ryan 
Giggs was named in Parliament, Lord Judge LCJ and Lord Neuberger were 
holding a press conference launching the Neuberger Report on 
Superinjunctions.182 Lord Judge said that the media: 

 
“need to think whether it's a very good idea for our lawmakers to be in 
effect flouting a court order because they disagree with the order or, 
for that matter, because they disagree with the law of privacy which 
parliament has created”.183 
 
This remark was widely viewed as putting the courts and parliament on 

course for a constitutional crisis.184 Fortunately that prospect has not 
materialised, and the Neuberger Report itself takes a more measured view: 

 
                                                      
180 Swinford, Telegraph online  May 9th 2011. 
181 BBC online  May 23rd 2011. 
182 See above §1.1. 
183 Bowcott and Watt, Guardian online, May 21st 2011. 
184 Sedley, The Goodwin and Giggs Show, (2011) 33 London Review of Books No. 
12 p 3. 



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“Article 9 of the Bill of Rights 1689 recognises and enshrines a 
longstanding privilege of Parliament: freedom of speech and debate. It 
is an absolute privilege and is of the highest constitutional importance. 
Any attempt by the courts to go beyond that constitutional boundary 
would be unconstitutional. No super-injunction, or any other court 
order, could conceivably restrict or prohibit Parliamentary debate or 
proceedings.” 
 
That view has been accepted in Parliament by the Attorney-General as the 

considered and official response of the judiciary.185  
 

7.4  Enforcing Injunctions 
 
Anonymity orders are enforced in exactly the same way as other 

injunctions, namely, by the machinery of contempt of court. As orders 
granting injunctions make clear, disregarding the injunction can lead to a fine 
or imprisonment. The courts have, however, been reluctant to take the 
initiative. In responding to complaints that an anonymity order has been 
disregarded, judges have said that invoking the contempt of court process is a 
matter for the Attorney-General. In Goodwin v News Group Newspapers Ltd 
Tugendhat J declined to refer to the Attorney-General a complaint by the 
woman alleged to have had an affair with Sir Fred that press coverage had 
breached the injunction by tending to identify her: 

 
“The reason that I decline to make the reference is that in my 
judgment it would not assist the Attorney-General. The lady is free to 
refer the matter to the Attorney-General herself, and the Attorney-
General is free to act of his own motion. This case has received 
extensive coverage in very many newspapers and other news media, 
and has been the subject of public judgments.” 186 
 
The Attorney-General said in Law in Action on BBC Radio 4 on June 7th 

that “I will take action if I think that my intervention is necessary, in the 
public interest, to maintain the rule of law, proportionate, and would achieve 
an end of upholding the rule of law,” and “the fact you are doing it on Twitter 
does not give some blanket exemption.” He added that there was nothing to 
prevent litigants acting of their own initiative. 

The rule of law depends not just upon the machinery of justice, however, 
but upon general compliance with the law. Where the law departs from what 
most individuals and the press perceive as being fair and appropriate, there is 
                                                      
185 Commons Hansard May 23rd 2011 col 636. 
186 [2011] EWHC 1341 at [20]. 



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a problem. If that problem persists, it can be dealt with only by a change in 
practice or by a change in the law. 

 
7.5  Speed and extent of development of privacy laws 

 
Britain’s privacy laws underwent a metamorphosis with the enactment of 

the HRA 1998. There is no doubt that a fundamental and rapid change was 
required if Britain was to be compliant with the ECHR and the jurisprudence 
of the European Court.  What is less clear is whether the extent of the change 
was necessary. Max Mosley’s claim that his rights had been infringed because 
there was no requirement of pre-notification failed in the European Court.187 
The Court considered that States had a wide “margin of appreciation” in 
meeting Convention obligations, especially under Article 8, since there was a 
lack of clarity about the notion of “respect” for private life;188 there were 
variations in practice across the Member States;189 the degree of protection for 
privacy needed to be commensurate with the seriousness of the invasion;190 
and a fair balance had to be struck between the competing rights and interests 
arising under Articles 8 and 10.191 On the specific issue of Max Mosley’s 
application, the view of the European Court was that the UK’s practice in not 
requiring pre-notification was within the margin of appreciation. This was 
emphasised by the diversity of practice amongst member States about how to 
balance Articles 8 and 10,192and by the “not unjustified” concerns about the 
effectiveness of the duty given the need for a public interest exception, and 
the lack of means of enforcement which did not unduly “chill” freedom of 
expression.193 More generally, the case suggests that a slower pace of 
development of privacy law, and a less aggressive approach to enforcement 
by means of prior restraint with greater reliance upon an effective system for 
payment of compensation for unjustified invasions of privacy might have 
been considered by the European Court to have been compliant with the 
Convention.   

 
 
 
 

                                                      
187 Mosley v UK  [2011] ECHR 774. See above, text to n 83. 
188 [2011] ECHR 774 at [108]. 
189 [2011] ECHR 774 at [110]. 
190 [2011] ECHR 774 at [109]. 
191 [2011] ECHR 774 at [111]. 
192 [2011] ECHR 774 at [124]. 
193 [2011] ECHR 774 at [126]. 



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123 

7.6  Prior restraints require “most careful scrutiny” 
 
The European Court in Mosley appeared to have a particular concern 

about the use of prior restraint for dealing with invasions of privacy. The 
Court observed that: 

 
“while Article 10 does not prohibit the imposition of prior restraints 
on publication, the dangers inherent in prior restraints are such that 
they call for the most careful scrutiny on the part of the Court. This is 
especially so as far as the press is concerned, for news is a perishable 
commodity and to delay its publication, even for a short period, may 
well deprive it of all its value and interest.” 194 
 
Whilst not a condemnation of the practice of granting injunctions to 

protect privacy, this is hardly a ringing endorsement of the current practice in 
England.  

There are other considerations which suggest that the courts could have 
been less ready than they have to use anonymity orders so willingly in cases 
where the intrusion on private life does not have serious consequences. 
According to Lord Nicholls in Cream Holdings Limited v Banerjee HRA 
section 12(3) was intended to inhibit the too ready grant of interlocutory 
injunctions by requiring a higher threshold for the grant of interlocutory 
injunctions against the media than the normal test.195 The provision has not 
had the impact which Parliament seems to have intended.196 In addition, the 
award of an interlocutory injunction is discretionary. The courts could have 
been less willing to find that respect for privacy automatically requires the 
grant of an injunction. More account could have been taken of the seriousness 
of the damage that a revelation would cause, and the real origin of that 
damage. If a footballer has been having an affair with his brother’s fiancée 
would any damage to his marriage be the result of the footballer’s infidelity 
(which his wife may have discovered anyway), of the lack of honesty in the 
relationship, or only of the publicity resulting from press coverage? The 
courts have traditionally been more cautious in granting injunctions in libel 
cases, as reflected in the rule in Bonnard v Perryman197 (an interlocutory 
injunction will not be granted where the defendant intends to prove the truth 
of the defamatory statement), and it is odd that a person should be more 
protected against the disclosure of the truth than against the telling of lies. 
Neither does the recent approach recognise the importance historically 
                                                      
194 [2011] ECHR 774 at [117]. 
195 2005] 1 AC 253 at [15]. 
196 See above §3.2. 
197 [1891] 2 Ch 269. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

124 

accorded to freedom of expression. For instance, before the HRA, Hoffman 
LJ said of freedom of expression under the ECHR: 

 
“It cannot be too strongly emphasised that outside the established 
exceptions, or any new ones which Parliament may enact in 
accordance with its obligations under the Convention, there is no 
question of balancing freedom of speech against other interests. It is a 
trump card which always wins." 198  

 
Similarly, in R v Shayler199 Lord Hope said that when looking at any 
restriction on freedom of expression, “A close and penetrating examination of 
the factual justification for the restriction is needed.”  Whilst these remarks 
were not made in the context of the balancing of Articles 8 and 10, they are 
illustrative of the importance of freedom of expression. The approach in 
Ireland, while applying principles very similar to those in England, appears to 
have a stronger bias against prior restraint.  In Murray v Newsgroup 
Newspapers Ltd200 a convicted violent sex offender objected to the disclosure 
of information which might have helped in his identification. Irvine J pointed 
out that particular care had to be taken where the relief being sought was a 
prior restraint order,201 and that, “any such restriction [on freedom of 
expression] calls for the most careful scrutiny,”202 with the onus being on the 
plaintiff to demonstrate that it was required on the balance of convenience.203 
The plaintiff’s claim for an injunction failed because he had “failed to 
demonstrate sufficient significant inconvenience such as would justify a 
curtailment on the freedom of expression of the defendant newspapers.”204  
 
7.7  Are the Restraints discriminatory? 

 
Tugendhat J has refuted suggestions that the operation of anonymised 

injunctions has been discriminatory.  He said “there is no stereotype which 
can be used to categorise claimants in privacy actions, and many of them are 
                                                      
198 R v Central Independent Television plc  [1994] Fam. 192. 
199 [2002] UKHL 11, [2003] 1 AC 247 at [61]. 
200 [2010] IEHC 248. 
201 [2010] IEHC 248 at [58]. 
202 [2010] IEHC 248 at [109]. This proposition was derived from The Observer and 
the Guardian v U K (1992) 14 EHRR 153 where the European Court held that 
“Article 10 of the Convention does not in terms prohibit the imposition of prior 
restraints on publication, as such. … On the other hand, the dangers inherent in prior 
restraints are such that they call for the most careful scrutiny by the Court.” 
203 [2010] IEHC 248 at [85]. 
204 [2010] IEHC 248 at [85]. 



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125 

women”.205 After giving a list of examples drawn from his book on privacy, 
he continued “All of the claimants in that passage were women or children, 
some rich, and some not rich.”206  While this may be true, privacy orders are 
not cheap, with the cost certainly running to several thousand pounds, putting 
them beyond the reach of most people with ordinary means.  In relation to 
gender, whilst there is no evidence of an inherent bias in the law, some of the 
most prominent reports have disclosed only the woman’s side of a “kiss and 
tell” story, on occasions with details affecting her family. 207  

 
7.8  Protecting Commercial Interests 

 
The European Court indicated in Von Hannover v Germany that  “the 

guarantee afforded by Article 8 of the ECHR is primarily intended to ensure 
the development, without outside interference, of the personality of each 
individual in his relations with other human beings.” 208 English law protects 
privacy even where the primary motive is commercial,209 and this has been a 
cause of some public disquiet. It is now probably too late for English law to 
distinguish between genuinely private space and space to which access is 
controlled for commercial reasons.  However, the distinction is surely relevant 
when considering whether an injunction should be granted.  Damages are far 
more likely to be an adequate remedy where privacy laws are being used to 
secure the opportunity for commercial exploitation than where privacy is 
being sought “to ensure the development of the personality”. 

 
7.9  Ownership of the law 

 
England’s new privacy law has been created by a combination of the 

legislative incorporation of the ECHR into English law; judicial development 
by English judges; and judicial development by the European Court. This 
interaction has not always been acknowledged.  Some comments depict the 
law as having been imposed by Europe210 or as being developed in a way 
which was not anticipated or authorised by Parliament. The Prime Minister, 

                                                      
205 TSE v News Group Newspapers Ltd [2011] EWHC 1308 at [36].  
206 TSE v News Group Newspapers Ltd [2011] EWHC 1308 at [38].  
207 For example NEJ v Wood [2011] EWHC 1972 concerned the relationship between 
“a married actor” and Helen Wood, a woman reportedly previously involved in sex 
for payment with Wayne Rooney. Media reports contained information in relation to 
which Helen Wood’s family might have had a reasonable expectation of privacy: 
Greenhill and Narain, Mail online, April 14th 2011. 
208 Von Hannover v Germany [2004] ECHR 294. 
209 Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595. 
210 See Sir William Cash, Commons Hansard  May 23rd 2011 Column 638. 



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126 

David Cameron, has said that “The judges are creating a sort of privacy law,” 
211about which he felt uneasy since Parliament, not judges, should decide on 
the balance between press freedom and privacy. Paul Dacre, writing in The 
Guardian, has gone even further. He said: 

 
“The British press is having a privacy law imposed on it, which - apart 
from allowing the corrupt and the crooked to sleep easily in their beds 
- is undermining the ability of mass-circulation newspapers to sell 
newspapers in an ever more difficult market. This law is not coming 
from Parliament - no, that would smack of democracy - but from the 
arrogant and amoral judgments - words I use very deliberately - of one 
man. Justice David Eady has, again and again, under the privacy 
clause of the Human Rights Act, found against newspapers and their 
age-old freedom to expose the moral shortcomings of those in high 
places.”212 
 
Conversely, other remarks suggest that the development of the law should 

have been no surprise to Parliament. The Neuberger Report states that “the 
courts (as Parliament anticipated) have developed the common law in light of 
the Convention and its jurisprudence,”213 and the Attorney-General, in a 
Commons debate, remarked: “In constructing the Human Rights Act, I do not 
think Parliament can be described as anything other than open-eyed as to what 
it intended to do about privacy law.” 214 In CTB v News Group Newspapers 
Ltd Eady J said: 

 
“it has for several years been repeatedly claimed in media reports that 
courts are ‘introducing a law of privacy by the back door’. Yet the 
principles have long been open to scrutiny. They are readily apparent 
from the terms of the Human Rights Act , and indeed from the content 
of the European Convention itself... the law has been loyally applied 
by the courts in a wide variety of circumstances and exhaustively 
explained in numerous appellate judgments.” 215 
 
Eady J also felt obliged to defend the development of the law in one of the 

hearings in the Mosley litigation: 
                                                      
211 Cameron 'uneasy' about use of injunctions, BBC online 21 April 21st 2011. 
212 The Guardian, November 10th 2008. 
213 Neuberger Report, para 1.4, citing Lord Irvine of Lairg LC, House of Lords 
Hansard, HL Debates, November 24th 1997, cols 771, 783 and 785 and the Human 
Rights Act 1998 s2. 
214 Commons Hansard  May 23rd 2011 col 642.  
215 [2011] EWHC 1232 at [20] – [21]. 



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127 

 
 “It is not simply a matter of "unaccountable" judges running amok. 
Parliament enacted the 1998 statute which requires these values to be 
acknowledged and enforced by the courts. In any event, the courts had 
been increasingly taking them into account because of the need to 
interpret domestic law consistently with the United Kingdom's 
international obligations. It will be recalled that the United Kingdom 
government signed up to the Convention more than 50 years ago.” 216 
 
Attempts to cast responsibility entirely on the judges or entirely on 

Parliament are unfortunate. The reality is that the law has developed as a 
result of both inputs. 

 
8  WHERE FROM HERE? 

 
8.1  Legislative change 

 
Legislation could more clearly delimit the limits to privacy and its 

enforcement.  Given the “margin of appreciation” allowed to member States 
within the ECHR to implement Treaty obligations in their own way and in 
their own legal contexts,217 the balance could be drawn differently from that 
which currently applies. A more extreme response would be to repeal the 
HRA, so that judges were no longer required to follow the precepts of the 
ECHR. However, if Britain remained a signatory to the Convention, it would 
continue to exert an influence, and more detailed laws (such as a “Bill of 
Rights”) would still be needed to introduce principles which differ from the 
rules set out in current caselaw.  

 
8.2  Judicial change 

 
Eady J said in CTB v News Group Newspapers Ltd: 
 
“Parliament may at some stage wish to change the law... but in the 
meantime the courts are obliged to apply the law as it currently 
stands.... It is not easy to see... how any significant changes could be 
achieved other than by legislation.” 218 

                                                      
216 [2008] EWHC 1777 at [7]. 
217 See for instance MGN Ltd v U K [2011] ECHR 66, [2011] ECHR 919. The margin 
of appreciation applies both to legislative action ([2011] ECHR 919 at [200]) and to 
decisions of the courts ([2011] ECHR 919 at [150]). 
218 [2011] EWHC 1326 at [15] – [17]. See also TSE v News Group Newspapers Ltd 
[2011] EWHC 1308 at [16]. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

128 

There is more scope for judicial change than this suggests. First, the 
boundary of private life could be delimited differently, reversing some of the 
distance which has been travelled since the Theakston decision, without 
transgressing ECHR obligations.219  Secondly, there could be a greater 
reluctance to use injunctions, reserving them for instances where it is 
demonstrated that damages would not be a sufficient remedy.220  Thirdly, the 
current approach appears to assume that once a reasonable expectation of 
privacy has been established, it is worthy of protection by injunction unless 
good countervailing reasons are demonstrated.  That approach could be 
reversed, as it is in Ireland.221 In the landmark decision in Herrity v Associated 
Newspapers (Ireland) Ltd222 Dunne J held that damages could be awarded in 
Irish law for an invasion of privacy.223  In considering the balance between the 
rights in the Irish Constitution guaranteeing freedom of expression and 
privacy224, Dunne J observed that “as a general proposition, I think that cases 
in which the right to privacy will prevail over the right to freedom of 
expression may well be far and few between”.  The actions in that case had 
taken place before the ECHR became part of Irish domestic law, but this 
general approach was endorsed by Kearns P in Hickey v Sunday Newspapers 
Ltd225 where the events took place after the Convention was incorporated into 
law. 

The Neuberger Report shows how practice has developed between 2010 
and the Report’s publication in May 2011 to ensure that superinjunctions are 
likely to be used only in the most exceptional circumstances, and only for the 
shortest possible period. Other changes proposed in the Neuberger Report226 
are likely to have an impact. Increased emphasis on the principle that orders 
should not be granted without notice to the parties affected, including the 
media, will help to ensure that the courts take full account of all relevant 
considerations, provided that the media pursues public interest arguments 
more vigorously, and where a good case is not accepted at trial, appeals.  As a 
matter of principle, a court accepting that reporting should be anonymous 

                                                      
219 See above §2.2 and 7.5. 
220 See above §7.5 and 7.6. 
221 See above §4.4  and 7.6. 
222 [2009] 1 IR 316. 
223 In this case the disclosure of an affair by a married woman with her Roman 
Catholic parish priest discovered through illegal phone tapping 
224 An unenumerated human right established by McGee v AG [1974] IR 284 and 
subsequent cases. 
225 [2010] IEHC 349. 
226 Practice Guidance for Interim Non-Disclosure Orders envisaged in the Neuberger 
Report was launched on August 1st 2011. 



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129 

should always provide its reasons for reaching this conclusion,227 and those 
reasons should be made publicly available.228 

 
8.3  The Leveson Enquiry and Media Self-regulation 

 
The ability of the media to regulate itself has been called into question 

recently by scandals involving the interception of telephone messages by 
reporters acting for The News of the World (and potentially for other 
newspapers) which have led to the closure of the newspaper and the 
establishment of a public enquiry in July 2011 led by Leveson LJ.  The 
enquiry is expected to take at least a year before reporting.  The enquiry may 
well make recommendations for more effective protection of personal 
privacy, and is likely to review the Press Complaints Commission Code of 
Conduct.  As the European Court recognised in the Mosley229 case there is a 
role for press self-regulation.  It is possible that exemplary damages can be 
awarded to redress serious invasions of privacy 230 and if the Code of Conduct 
has been breached, this may be a factor in deciding whether such an award is 
appropriate. 

 
8.4  Catch 22 

 
Ryan Giggs could hardly have obtained greater publicity than he achieved 

through an anonymised injunction. Seeking an injunction may thus defeat its 
very purpose. This was recognised by the Irish High Court in Foley v Sunday 
Newspapers Ltd. A notorious criminal known as “the Viper” objected to 
references to him made in certain publications about underworld gangsters. 
Kelly J remarked: “the information in question is in the public domain and the 
bringing of this action with its attendant publicity has given it a much wider 
circulation.”231 The experiences of Ryan Giggs and Sir Fred Goodwin in 
seeing their attempts at anonymity backfire may well be a powerful 
disincentive for others.  

 
 
 

                                                      
227 This proposition is tacitly accepted by the Neuberger Report – see paras 1.28 and 
3.53. 
228 As was recommended in JIH v News Group Newspapers Ltd [2011] EWCA Civ 
42 at [21(9)] & [35]. See Neuberger Report para 4.8. 
229 [2011] ECHR 774.  See above § 3.3. 
230 Mosley v News Group Newspapers Ltd [2008] EWHC 2341. 
231 [2005] 1 IR 88 at [60]. 



PRIVACY, SUPERINJUNCTIONS AND ANONYMITY 
 
 

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8.5  Do Nothing? 
 
Doing nothing is nearly always an option, but it is not necessarily the best 

choice.  However, the storm about superinjunctions has blown over almost as 
rapidly as it started, being displaced by the News of the World telephone 
hacking scandal.232 Any legislative change will be slow in coming but, 
although controversial, probably eclipsed by other issues in any Bill of Rights, 
the most likely vehicle for change. In the meantime, most of the arguments 
have already been deployed; the judiciary is well aware of the controversy 
about superinjunctions and is now more circumspect;233 the implementation of 
the Neuberger report will equally have an impact; the “Catch 22” dilemma 
may reduce the number of anonymity orders being sought; and as media 
interest subsides, internet gossip is likely to wane. 

 

                                                      
232 See Greenslade, Guardian online, July 26th 2011. 
233 See for instance Hutcheson (Formerly Known As "KGM") v News Group 
Newspapers Ltd [2011] EWCA Civ 808.