Press restrained in alleged blackmail sex case

5 October 2010 by Rosalind English

DFT v TFD [2010] EWHC 2335 (QB) (27 September 2010) – Read the judgment

Updated | In a recent restraint of publication case, the High Court has assessed the conflicting requirements of open justice and freedom of speech versus the privacy interests of the applicant.

The High Court was asked to consider continuing restraint of publication of what was said to be private and confidential information. The applicant alleged that the respondent had been blackmailing or attempting to blackmail him, and had threatened to make public private and confidential information concerning a sexual relationship between them unless she was paid very substantial sums. The applicant not only sought continuation of the injunction restraining publication but a prohibition on publishing the fact of the order as well, to avoid “jigsaw” identification of the applicant by the media.

The judge emphasised the well-known and uncontroversial point that private hearings and reporting restrictions should be ordered only where strictly necessary. She did find that such necessity had been established in this case as there were

strong grounds for believing that the respondent is a blackmailer, seeking to extort money by threatening to disclose private information about the applicant.

However she did not consider it any longer necessary for there to be an order prohibiting the fact that the order has been made. It was a question of determining whether the effective protection of the applicant’s Article 8 rights required the substantial derogation of the Article 10 rights and Article 6 rights that making such an order involves.

Keen appetite

The keen appetite of the media (and its consumers) for tales of sexual peccadilloes has honed the sleuthing skills of reporters to such a degree that simple anonymizing of proceedings is quite often no longer sufficient to keep certain stories out of the newspapers and the internet. Courts have to square the circle of giving an effective remedy for threatened misuse of private information whilst at the same time complying with the principles of open justice.

Section 12 of the Human Rights Act, which adds an extra layer of freedom of expression protection in restraint of publication cases, does not make this “obvious difficulty” any less insurmountable; it simply re-states the need to balance the conflicting principles of free speech and privacy, principles which claim to be neutral, but of course never are. Mrs Justice Sharp alludes to just this when she accepts counsel for the applicant’s submission that the expression rights of blackmailers are extremely weak (if they are engaged at all).

In a society where free speech is arguably held to be paramount, this is a bold statement to make. Article 10 rights – First Amendment rights in the US – tend to be defined independently of the variables of who is exercising them. In the US in particular, all forms of speech, like all colours or genders or races, are to be tolerated indifferently, no matter what their content (see further discussion on this in our earlier post on the subject). This is illustrated by the outcome of the US Supreme Court case United States v Stevens which overturned a ban on animal snuff videos as being an unconstitutional restriction on content.

English free speech principles do not go so far although it would be interesting to move the debate from the well-trodden arena of pornographers to that of blackmailers. Both of these however remind us that the right to free speech cannot be weighed in the balance in the absence of the rights bearer. Or to put it another way, it is practically and logically impossible to devise a procedural mechanism (the protection of free speech) which is in no way hostage to judgements of substance.

Open justice is of course a subset of free speech and expressed as such it sounds like an essential, must-have component of an open society, diminished at our peril; but when it is compared with the grievous nature of the harm caused to real people by certain publications which draw the very material for their scurrilous hints and allegation from published court proceedings, it fades in significance. If one allows the privacy v freedom of speech to linger too long in the realm of the abstract, it is not the real-world consequences of a decision in favour of the one or the other that matter, but the extent to which one right (usually free speech) is hierarchically superior to the other. The existence of this hierarchy is strenuously denied of course but if it were not there, behind the scenes, what is the point of privileging Article 10 over everything else by the inclusion of Section 12 in the Human Rights Act?

Update, 7 October: The High Court has ruled that the injunction will continue after its initial 4 October expiration date, in light of an article in the Daily Mail providing further details of the case which may lead to “jigsaw” identification (that is, identification of the person concerned through the piecing together of various pieces of information).

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