Footballer's upheld injunction leaves journalists in strange situation

A sexual affair by a footballer, which escalated into a debate about the UK's privacy laws, and later into what many described as a full-blown constitutional crisis, left England's journalists in an unusual position last night.

Following an emergency court hearing late yesterday afternoon, the press were able to report that Mr Justice Tugendhat had upheld a battered privacy injunction protecting the identity of "CTB", the footballer who had an affair with model Imogen Thomas.

Journalists could also separately report that just a few hours before that, MP John Hemming named Ryan Giggs as the player at the centre of a privacy injunction debate on Twitter.

While some exercised caution in reporting Hemming's naming of Ryan Giggs in one context, and reporting that the footballer "CTB" had his privacy injunction upheld in another, others did not.

The injunction was upheld yesterday by Tugendhat after the Sun newspaper went before the high court for the second time that day – and third inside a week – in a bid to have the gagging order overturned.

A lifting of the injunction would have allowed unfettered reporting of the player's affair with Thomas, as that much has already been admitted by both parties in court.

Tugendhat's decision intensifies something of a battle between parliament and the judiciary over privacy injunctions that began last week when Lib Dem peer Lord Stoneham, speaking in the House of Lords, revealed an affair protected by an injunction held by former RBS chief Sir Fred Goodwin.

Working under the assumption that Stoneham was protected in making his comments by parliamentary privilege, and the press in reporting them by qualified privilege, news sites duly carried the story of Goodwin's affair.

The part of the injunction protecting Goodwin's anonymity in relation to the affair was lifted later that day by Mr Justice Eady.

But there has been some uncertainty over the past week over exactly what rights politicians and the press have under parliamentary and qualified privilege.

A report published last week by Lord Neuberger suggests that the press are not necessarily protected by qualified privilege, especially where they "intentionally had the intention of frustrating a court order".

The report goes on to suggest that qualified privilege arises when parliamentary events are reported "in good faith and without malice". But it adds that there "is no judicial decision as to whether a summary of material published in Hansard which intentionally had the effect of frustrating a court order would be in good faith and without malice".

It could be argued that Hemming's question in parliament yesterday "intentionally had the effect of frustrating a court order".

And so yesterday the newspapers nervously followed one another in the minutes after Hemming's statement, and there was debate among journalists over the course of the afternoon about exactly where they stood – as well as a certain amount of variation on how the story was reported.

The key to Tugendhat's decision in the high court, which appears strange on the face of it given that the player's anonymity was in tatters by that point, appears to be the issue of harassment rather than secrecy.

Tugendhat acknowledged in a written statement that the name of the player had not been a secret for some time, but said that upholding the injunction could still prevent the player being harassed by journalists.

"It is obvious that if the purpose of this injunction were to preserve a secret, it would have failed in its purpose.

"But in so far as its purpose is to prevent intrusion or harassment, it has not failed. The fact that tens of thousands of people have named the claimant on the internet confirms that the claimant and his family need protection from intrusion into their private and family life.

"The fact that a question has been asked in Parliament seems to me to increase, and not to diminish the strength of his case that he and his family need that protection.

"The order has not protected the claimant and his family from taunting on the internet. It is still effective to protect them from taunting and other intrusion and harassment in the print media."

Tugendhat's decision was the second time the injunction had been upheld in the high court that day, both following applications by News Group Newspapers, which publishes the Sun.

Just a few hours before Tugendhat's hearing, Eady ruled that the actions of Scottish national newspaper the Sunday Herald in naming Giggs, and the actions of many others on Twitter who did the same, had no bearing on the status of the gagging order.

It seems implausible, at this stage, that any newspaper publishers will face legal action over the past week's awkward negotiation of this story. It seems very likely that the enforceability of privacy injunctions in the age of Twitter will need to be rethought.

That difficult task will be undertaken by a cross-party committee recommended by David Cameron yesterday, which will examine the law surrounding privacy, injunctions and the internet.

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