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Privacy and persons unknown

The decision to discharge an injunction on reporting details of John Terry’s private life has been greeted by some as a victory for free speech. The decision, however, does not mark a sea-change in the approach of the courts to privacy laws.

Terry’s lawyers sought to impose the injunction on ‘persons unknown’ – as he argued he did not know who was going to publish the story, but wanted to stop any newspaper from doing so. The problem is that this meant that no other party was in court to oppose the injunction, and that it rested on what Terry’s lawyers told the court. The judge, Mr Justice Tugendhat was critical of the fact that the relevant media organisations had not been notified (and therefore not present in court) – and found that Terry’s lawyers should have known who was likely to publish the article.

The judge was also critical of the quality of the evidence before the court. Given that there was no opposing party in court, it was particularly important that Terry’s lawyers give full and frank evidence, highlighting any weaknesses in the arguments for an injunction. Tugendhat did not think the evidence presented,which had been collected by non-lawyers, fulfilled this standard. On the evidence given, he did not think Terry was likely to prove that there was a real threat of sensitive details being published. In any event, he could not rule out the success of a public interest defence (again, he had not heard evidence from an opposing side, so it was harder to form a conclusion on this issue).

Finally, he thought that the claim was really about protecting reputation (particularly a commercial reputation) rather than the right to privacy. As a result, the rule in Bonnard v Perryman applied (which makes it harder to get an interim injunction in defamation cases).

It is certainly welcome to see the courts closely scrutinising claims for an injunction against persons unknown. But it does not mark a change in the substance of the law of privacy, and many of these factors will not arise where there is an opposing party to challenge an injunction in court.

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