Giggs case is unlikely to happen here

THE INJUNCTION that the Manchester United footballer Ryan Giggs took out to stop newspapers and broadcasters from reporting his affair with the former Big Brothercontestant Imogen Thomas, which was rendered meaningless this week by his being named in the House of Commons, is the latest in a series of English court rulings aimed at protecting individuals from media revelations about their private lives.

The whole affair, which has also highlighted the difficulty of maintaining such injunctions in the era of Twitter and other social media, has raised questions about people’s right to privacy and the press’s right to publish, and the role of the courts in finding a balance between the two.

What does this mean for Ireland? The media here observed the Giggs injunction, as any publication sold or programme broadcast in England, Wales or Northern Ireland could face the sanctions of the courts there. (Scotland has a separate system.) But could a celebrity, or anyone for that matter, obtain an injunction preventing the publication or broadcasting of an item about his or her private life here? And could they prevent anyone knowing they had even sought it, by applying not just for an injunction but for a so-called superinjunction?

It is not very likely as the law stands. The Constitution states that there is a right to freedom of the press, subject to “public order and morality”, and that justice shall be administered in public, except where provided for in law – all family-law proceedings and those involving children in care or people with mental disabilities take place in private, along with certain cases involving commercial secrets. An application could be made for proceedings to be heard in private, but this would have to be justified.

The right to privacy exists both as a result of a number of constitutional cases and arising from the European Convention on Human Rights, which has been relied on by celebrities in the English courts. Britain has no written constitution, and the balance between the rights of the media and those of individuals are being decided by the courts, using previous case law and the European convention.

However, our courts have been very reluctant to grant injunctions preventing the media from publishing material about aggrieved parties. It has only happened once in recent times, and even then the judge, Mr Justice Peter Kelly, made it clear that this was exceptional and that the normal remedy for the publication of damaging material was defamation proceedings – which, if successful, can be very costly for the media organisation.

In 1999 he granted an injunction to the nightclub owner John Reynolds preventing the publication of an article about him in a short-lived magazine owned and edited by the former Irish Presssolicitor Elio Malocco, who was later sentenced to five years in jail for forgery.

Granting the injunction, he said he considered the material to be published to be so damaging as to be likely to give rise to a successful defamation action. He may have been influenced in his decision by the unlikelihood of Reynolds obtaining meaningful redress in a libel action, as it emerged during the hearing that two of the other people named as authors of the article did not exist, and very little information was available about the magazine’s publisher, whose address was given as “London”.

In 2005 the owners of the Leas Cross nursing home sought an injunction preventing RTÉ from broadcasting a Prime Timeprogramme about care standards. In a lengthy judgment, Mr Justice Clarke said it was necessary to balance the public interest in the welfare of people in nursing homes with the privacy of the residents. He found that the public interest justified the broadcast, but made it clear that there could be cases where there was no such public interest and an injunction would be granted.

This case clearly involved the privacy of vulnerable people, not celebrities, and it is likely that our courts would be much more protective of vulnerable people than those who thrive on publicity and seek to control it.

This was certainly the view of Mr Justice Kearns when asked to award damages to Ruth Hickey for invasion of her privacy by a Sunday Worldphotographer who took pictures of her, her partner David Agnew and their son when they registered the newborn's birth.

Hickey failed in her bid for compensation for two main reasons: she was carrying out a public function in a public place, and she had already sought publicity from the media for her relationship and the birth of her child. However, the judge added that the behaviour of the journalists represented “the lowest standards of journalism imaginable” and when it came to costs the newspaper backed down and came to an agreement with Hickey.

Another litigant, Michelle Herrity, did successfully sue for breach of privacy. She was awarded damages against Associated Newspapers when the Irish Daily Mailpublished her telephone conversations with a priest with whom she was having a relationship; they had been covertly recorded by her estranged husband. The fact that the recording was unlawful featured large in the judgment.

The conclusion to be drawn from all this is that no one can be sure about what the Irish courts might do if a Giggs-type case were to come before them, though it is unlikely he would succeed. There is a strong presumption in favour of press freedom and the administration of justice in public, and interfering with either has to be justified by particular circumstances, which will be balanced against the public interest.

Protection of the vulnerable is one such circumstance, but it is hardly arguable that a celebrity footballer, much of whose private life is lived in the public eye, is vulnerable. On the other hand, it can hardly be argued that writing about that private life is in the public interest.

If, however, children or family members suffering from a disability were involved, the issue might be viewed differently. The issue of a superinjunction, preventing any reporting – even of the application itself – could then arise. At a legal conference on privacy three years ago, Mr Justice Clarke was reluctant to consider that the whole of such proceedings should be in private, but he conceded that it might be necessary to take steps to hide the identity of an applicant.