The right to privacy and injunctions

What the press refers to as 'the right to privacy' is contained in Article 8 of the European Convention of Human Rights - but in fact it is merely a right 'to respect for private and family life, home and correspondence'. It is a qualified right. It can be interfered with so long as the interference can be justified and the interference is in accordance with legal principle. In addition it is a competing right, in that it competes with the rights of others to do and say things.

Before the Human Rights Act, Parliament had been resisting the creation of a 'privacy law'. There had been many calls for an introduction of such a law; and when the HRA was introduced, it was said that a privacy law was now being introduced, but there was no guidance, or detail provided as to how the courts should interpret the new law.

When considering an application for an interim injunction (which the so-called 'super injunction' is one species of), the courts will consider first whether there is a cause of action, second whether the damage can be adequately compensated for in monetary compensation and third where 'the balance of convenience' lies.

If someone does something that is of its very nature 'confidential', there is prime facie a cause of action for breach of confidence if they decide, unilaterally, to expose the confidential material to others. Can that breach of confidence be compensated for in damages? Often, the answer to this is simply, 'No'; as assessing the damage will be very difficult and monetary compensation cannot provide an adequate remedy for the exposure of many confidential things. Where is the balance of convenience? Does it favour the person who seeks to expose, or the person who seeks to maintain the confidence? The answer is pretty obvious ...

Now add the Article 8 right to the mix; the right to protection of the privacy will for the temporary injunction trump the right to publish.

So for a temporary order, pending trial of an action for breach of confidence, the judges will almost always go for the status quo and order the confidence to be protected. But it is temporary ...

Having written that, often what happens is that having obtained the temporary order, the claimant has no incentive to proceed with his litigation and the defendant loses interest in the story that he or she wishes to expose ... and so we end up in the rather bizarre position of a temporary court order having the effect of ending the dispute.