In recent weeks a former reality television contestant, Imogen Thomas, has done the rounds of television studios and newspapers bemoaning the fact that she had been gagged by the courts from selling her story.
One of her tear-filled television appearances can be viewed here.
Now, the fact that she has been able to talk about being subject to an injunction makes clear that she is not subject to a so-called super-injunction (a process whereby the existence of the injunction cannot be discussed – perhaps surprisingly the clearest media explanation of this has appeared in the Daily Star Sunday (it’s below the box for “Video Vixens” and Imogen Thomas in a bikini)). Instead the injunction has an anonymous claimant. Many people think they know who this person is. His name has appeared on social media sites; and various newspapers and one satirical magazine have made innuendo laden comments about him. One MP (who really ought to know better) attempted to name the footballer when she appeared on Have I Got News for You. Some of those who have deliberately breached the injunction may think they are serving some greater purpose in the cause of freedom of speech, or merely support the power to allow newspaper to spread salacious and titilating gossip. Some believe it is genuinely in the public interest to name the individuals. Some make an argument that this is about rich powerful people (usually men) using the law to gag others (usually women).
Among comments made by Ms Thomas’s supporters are claims that the law is unfair in allowing her to be named while the footballer remains anonymous.
Thus far, the footballer at the centre of the story remains silent. This means that the stories from Ms Thomas that they had had a six month affair, that she was expecting him to propose, and the like have done the rounds – while she believes herself gagged from revealing any information. She alleges that she never intended to sell her story.
“I had no intention of speaking about the man. I just wish that my name was protected. ”
But of course every story has 2 sides. Today, through the medium of a judgment from Eady, J we discovered the footballer’s story. It is rather different from that of Ms Thomas.
We learn that he alleges that after arranging a meeting at a hotel Ms Thomas asked him for £50, 000 or she would sell her story. We find out that he alleges that when he refused to pay this the figure went up to £100,000 at a second meeting. We learn that he alleges that photographers were primed to attend the venues of the meetings with Ms Thomas to take photos of the footballer attending the (different) venues meetings to give the impression that they had been having a protracted affair. And while the claimant does not use the word the judge does not hesitate to refer to Ms Thomas’s behaviour as blackmail and draws the inference that Ms Thomas was quite happy to sell her story to the press. The full section in relation to the sting is a fascinating narrative of the behaviour of our tabloid press in these stories and for its narrative of the behaviour of Ms Thomas, as alleged by the claimant (at paras 4 – 17):
“On 14 April, News Group Newspapers Ltd was represented by leading counsel, Mr Richard Spearman QC, who did not oppose the grant of an injunction over the short interval before the return date. Ms Thomas was not represented, and indeed had not been notified of the hearing, since on the evidence I was satisfied that there would otherwise have been a risk of further disclosure of private or confidential information prior to her being served with the order.
The Claimant’s witness statement was to the effect that Ms Thomas had made contact with him by various text messages in March, which led him to conclude that she was at that stage thinking of selling her story, such as it was. She told him by this means that she wanted, or “needed”, a payment from him of £50,000. It was against this background that he agreed (he says with some reluctance) to meet her in a hotel where he was staying in early April of this year in order to discuss her demands. Although he had no wish to meet, he eventually agreed because he was concerned that she would go to the newspapers if he refused. On that occasion, which was according to his evidence only the fourth time they had met, they were together for no more than 30 minutes. She had asked him to provide her with a signed football shirt, which he did, but he told her that he was not prepared to pay her the sum of £50,000.
The next development was that she asked to see him again, in a different hotel, a few days later (where he was also staying). He agreed with reluctance and on this occasion, as she had requested, provided her with some football tickets.
It now seems that the Claimant may well have been “set up” so that photographs could be taken of Ms Thomas going to one or other, or both, of the hotels. Although the position is not yet by any means clear, the evidence before me on 14 April appeared to suggest that Ms Thomas had arranged the hotel rendezvous in collaboration with photographers and/or journalists. He first began to “smell a rat” when she told him at the first April meeting, perhaps feigning innocence, that she had been followed and recognised when she visited the first hotel.
On 12 April, the Claimant sent Ms Thomas a message to say that he did not want any further contact with her. Then, in something of a quandary, he thought better of it and sent her a further message the following day. This was to convey to her that he might be willing to pay her some money after all. By this time, however, she made it clear that she was looking for £100,000. She later texted him to say that there was a journalist outside her house.
The evidence before the court at that point, therefore, appeared strongly to suggest that the Claimant was being blackmailed (although that is not how he put it himself). I hasten to add, as is obvious, that I cannot come to any final conclusion about it at this stage. I have to make an assessment of the situation on the limited (and untested) evidence as it now stands. (That is what is required by s.12(3) of the Human Rights Act, to which I shall return shortly.)
Ms Thomas made contact with the Claimant again on 13 April and asked him to call her. When he spoke to her, he formed the impression that she had someone with her – probably a journalist. At all events, she told him that The Sun was thinking of publishing a story to the effect that they had had an affair for some six months and that this account would be supported by photographs of her at or near the hotels where the April visits had taken place. She did not give any indication that she herself was in any way responsible for this. It is hardly likely that she would have done so, of course, if she was still hoping to extract money from the Claimant. It seems, nevertheless, that The Sun was ready to take advantage of these prearranged meetings in order to be able to put forward the claim that it was The Sun which had found him “romping with a busty Big Brother babe”. This was no doubt to give the impression, which Ms Thomas herself may have fostered, that a sexual liaison between them was still continuing at the time of the two hotel rendezvous in April.
Shortly afterwards, still apparently seeking to absolve herself from any responsibility for the newspaper coverage, Ms Thomas sent a message to the Claimant to the effect that one of his friends must have tipped off the newspaper. According to his account, the Claimant knew this to be untrue, since he had never mentioned her to anyone.
The evidence before the court at that stage, therefore, appeared to indicate, rightly or wrongly, that Ms Thomas had arranged for photographs to be taken, having already agreed a payment or payments from the newspaper. Despite that, she was still requesting £100,000 from the Claimant. This was the background against which I had decided that there was ample reason not to trust Ms Thomas. It seemed reasonable, in those circumstances, that the Claimant and his advisers should be excused the need to serve her in advance of the 14 April hearing.
At all events, it seems probable that she had agreed at some point to contribute to the story in The Sun that was published in its issue for 14 April (i.e. prior to the hearing of the injunction application). It is thus ironic that Ms Thomas has subsequently complained of the court’s supposed unfairness in according anonymity to the Claimant but not to her. She was already identified, apparently of her own volition, before any application was made to the court. It seemed to me that the Claimant was fully entitled to the protection of anonymity at the time he came before the court on the first occasion – not least for the reasons acknowledged and explained by the Court of Appeal in JIH v News Group Newspapers Ltd 2 All ER 324at .
On the return date, being the last day of term, the application was renewed by Mr Tomlinson. Mr Spearman again appeared on behalf of News Group Newspapers Ltd and, on this occasion, Ms Thomas was represented by Mr David Price QC, who had only recently been instructed on her behalf and took a largely “watching” role.
It seems that Ms Thomas had instructed other solicitors for a short time, with whom the Claimant’s advisers had made contact on 15 April. On that date she had signed a very brief witness statement accepting that she wished to publish her account of her relationship with the Claimant and that she was in discussion with the Mail on Sunday about that. This was in support of a proposed application by Associated Newspapers Ltd to vary the terms of my order of 14 April because she had been advised that it “arguably” prevented her from doing so. In the event, that application did not materialise. Then there was a hiatus during which she had no legal representation before Mr Price was finally instructed. In the meantime, however,
there were further publications over the weekend in other tabloids. She appears to have collaborated at least in a Sunday Mirror article.
On 20 April I was prepared to continue the injunction and, following detailed negotiations between counsel, I approved an agreed order on 21 April. I now set out more fully the reasons for granting the injunction on 14 April and for continuing it with effect from the return date.
I now wish to make it clear that, shortly before this judgment was handed down, Mr Price stated on his client’s behalf that she denies either causing the publication in The Sun on 14 April or asking the Claimant for money.”
There is something mildly disturbing about the allegations – although they are challenged and would be subject to proof at a hearing before determination as to whether or not there should be a final injunction. However, it does not seem unreasonable – given the background circumstances – for an anonymous injunction to be granted to the claimant.
The background law on privacy is set out at paras 19 – 25 of the judgment.
The position in relation to blackmail cases is set out at para 22
“The majority of cases over the last few years, in which the courts have had to apply those principles, would appear to be of the so called “kiss and tell” variety and they not infrequently involve blackmailing threats. Blackmail is, of course, a crime and in that context the courts have long afforded anonymity to those targeted as a matter of public policy. That has not hitherto been questioned. In the modern context, against the background of the Human Rights Act, it is equally clear that the courts have an obligation to afford remedies to such individuals, to discourage blackmailers and to give some protection in respect of personal or private information where there is a threat of revelation.”
And Eady, J sets out the 2 stage test to determine whether or not there should be publication with the first stage at para 23
“First, the court has to decide whether the subject matter of the threatened publication would be such as to give rise to a “reasonable expectation of privacy” on the part of the applicant. 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.”
and para 24 where this first stage is then balanced with a second stage
“Once that hurdle has been overcome, the next stage is for the court to weigh against the claimant’s Article 8 rights, and any duty owed to him under the traditional law of confidence, whether it would be appropriate for those rights to be overridden by any countervailing considerations. In the present case, of course, it is necessary to weigh up the Article 10 rights of Ms Thomas, together with those of any journalists she has approached. Also, it is necessary to have regard to the public interest and to the right of citizens generally to receive information.”
Now some take the view that the second test should always prevail. John Kampfner seems to take that position in The Guardian today and those who do ordinarily argue that there can be compensatory redress for those whose reputation is damaged. But a process to seek compensation is slower and more cumbersome and more expensive than a system of prior restraint. If the freedom of expression argument is adopted then the law of privacy and reputation management will very definitely only be for the very wealthy. It is only the very wealthy that can pursue proceedings for a sustained period of time. However, prior restraint and the process of obtaining an interdict in scotland or an injunction – while not cheap – is quicker and cheaper (a point well made by David Allen Green in his New Statesman piece on the Mosley judgment last week).
And Eady, J clarifies the current legal position at para 33
“It follows that one can rarely arrive at the answer in any given case merely by reference to generalities. It must all depend upon the particular facts of the case. It follows too that there can be no automatic priority accorded to freedom of speech. The relative importance of the competing values must be weighed by reference to the individual set of circumstances confronting the court. Of course the court will pay particular regard to freedom of expression, but that does not entail giving it automatic priority. All will depend on the value to be attached to the exercise or proposed exercise of that freedom in the particular case. 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 e.g. Jameel v Wall Street Journal Europe SPRL  1 AC 359at . 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 (App. No. 48009/08), 10 May 2011, BAILII:  ECHR 774, at . “
SO we currently have a public interest test and freedom of expression is no absolute trump card – and nor should it be. (Those that argue for absolute freedom of expression often struggle when confronted with its consequences. What about the power to threaten, to coerce, to blackmail, to lie maliciously? Absolute freedom of expression would have no problem with these – but the debate about the fallacious argument of the libertarians who advocate absolute freedom of expression is one for another day). And Eady, J has confirmed that this is not about titilating gossip.
At para 25 he notes
“I have to consider whether there would be a legitimate public interest in the revelation of this particular information, in so far as it is not already in the public domain, and whether publication would contribute to “a debate of general interest”, in the sense conveyed by the European Court of Human Rights in such cases as Von Hannover v Germany (2005) 40 EHRR 1. Would it help to achieve some legitimate social purpose, such as the prevention or detection of crime? Or again, echoing the terminology of the Press Complaints Commission Code, would publication in some way prevent the public from being seriously misled?”
So applying the 2 stage test to the case involving Ms Thomas what was the public interest to justify publication?
Well, there – of course – wasn’t any. As Eady, J notes at para 26,
“Indeed, it was not even argued that publication would serve the public interest.”
And if there is no public interest why are newspapers wanting to go to the wall over this? It’s about gossip not news. And those sanctimoniously complaining about the superinjunctions and the anonymous injunctions need to have something better to justify than alleged blackmail and stings by photographers.