Anonymity ain’t here anymore for Take That’s Howard Donald
18 November 2010
Adakini Ntuli v Howard Donald  EWCA Civ 1276 – Read judgment
Take That’s Howard Donald has failed to maintain an injunction against the press reporting details of his relationship with a former girlfriend. He had originally sought the injunction after receiving a text from the woman saying: “Why shud I continue 2 suffer financially 4 the sake of loyalty when selling my story will sort my life out?”
‘Superinjunctions’ have received a great deal of press coverage recently, not least because they are usually granted in cases involving celebrities’ private lives. They are injunctions, usually in privacy or breach of confidence cases, which prevent not only the publication of certain matters, but even the publication of the existence of legal proceedings. These cases are of particular interest because of the competing ECHR rights in play: Article 8, the right to respect for private and family life, and Article 10, the right to freedom of expression.
The Court of Appeal has discharged a superinjunction granted by Eady J to prevent the publication of the existence of proceedings brought by the Applicant, a former girlfriend of the Respondent, a member of the pop group Take That. The parties also no longer needed to be anonymised. However, the injunction prohibiting the publication of “any intimate, personal or sexually explicit details about the relationship” remains in force.
The Applicant appealed the decision of Eady J on the basis that there should have been no injunction at all and alternatively that the injunction was too vague in its scope as it prevented the publication of ‘intimate’ details of the relationship. The Respondent sought to have the existing position maintained, but also to have the injunction extended to cover publication of the existence of the relationship.
The scope of the injunction
Both the appeal and cross-appeal were dismissed so far as they touched upon the scope of the injunction. The respective rights of the parties to freedom of expression and privacy had been balanced appropriately. The terms of the order did not lack sufficient clarity. Further, “Disclosure of the mere fact of this past relationship which, on any view, was not entirely secret, does not carry with it particularly grave adverse consequences” (Maurice Kay LJ, paragraph 38) so the cross-appeal was dismissed.
The superinjunction element
The appropriate restriction on privacy was an order restricting publicity to the matters contained in the judgment of the Court of Appeal and any ancillary orders. Earlier authorities demonstrated that a test of necessity was to be satisfied for the imposition of a superinjunction. The Respondent suggested that after the coming into force of the Human Rights Act 1998, a more nuanced test should be applied. Maurice Kay LJ noted that,
…it is significant that Article 6 of the ECHR itself prescribes a test of strict necessity in the context of publicity being permitted to be restricted in the interests of justice. However, as part of its consideration of all the circumstances of a case, a court will have regard to the respective and sometimes competing Convention rights of the parties (paragraph 52).
The subject matter of these proceedings is necessarily case-sensitive: slightly different facts may lead to a different outcome. Necessity was not made out in this case:
I am simply unpersuaded that greater restriction is necessary at this stage. There is nothing in this judgment that is significantly invasive of Mr Donald’s private or family life (Maurice Kay LJ, paragraph 54).
The same considerations as applied to the question of whether there should be a superinjunction also applied to the anonymity question, so again, anonymity was not required: the material in respect of which the Respondent did have a reasonable expectation of privacy is not in the judgment.
Consequently, the Applicant was successful in overturning the superinjunction and anonymity elements of the order of the court below, but neither party persuaded the Court of Appeal to change the scope or content of the injunction preventing publication of the matters which the Respondent was entitled to expect to remain private.
It appears that the Courts are still grappling with their obligation to provide effective remedies to threatened invasions of privacy and the requirements of Open Justice. “Anonymisation” is one, very effective, way of protecting privacy. This was done in the two recent “blackmail” cases of DFT and AMM. The other solution is to name the claimant but to avoid any discussion of the material which is the subject of restraint, as in Gray v UVW or JIH v News Group. This Court of Appeal judgment illustrates the problem with not anonymising. The claimant in JIH is seeking permission to appeal on the issue of anonymity so it may be that the Court of Appeal will have revisit these issues in the near future.
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