LONDON (Reuters) - If you are rich and famous, how can you stop embarrassing stories about your private life from becoming public?
In England, the answer is to obtain an injunction — a court order banning media from publishing private information against your will.
But the days of the privacy injunction, better known to London newspapers as a gagging order, may be numbered after a celebrity’s attempt to use one to suppress details of an extra-marital threesome backfired spectacularly.
Britain’s Supreme Court will hold a hearing on Thursday at the end of which it will decide whether the ban should remain in place.
The case shows the problems for those seeking to use the law to stop revelations in a world where information travels across jurisdictions at the click of a mouse and attempts to stifle news can have the opposite effect of attracting attention.
The person obtained an injunction in January covering England and Wales and kept a lid on the news story for 11 weeks, but on April 6 a widely read U.S. magazine ran it and within minutes it was all over the Internet.
Online searches for the names of those involved rose, Twitter was abuzz and media in many countries, including Scotland — a separate legal jurisdiction from England and Wales — published the story.
This infuriated the London newspapers, which were still banned from naming the protagonists, even though it was now easy for anyone interested to find out the details online.
“Why the law is an ass!” was the popular Daily Mail’s front-page headline on April 7.
The Sun on Sunday tabloid, which obtained the story from two of the people involved in the threesome, went back to the Court of Appeal, which had granted the injunction in January, and persuaded the judges to lift it.
“It is in my view inappropriate (some may use a stronger term) for the court to ban people from saying that which is common knowledge,” Lord Justice Jackson wrote in a ruling handed down on Monday.
But he left the ban in place to allow the celebrity to appeal to the Supreme Court, and for now the protagonists still cannot be named in media that appear in England.
Some lawyers say the celebrity injunction is on its last legs.
“The judgment may be treated as the death of the celebrity privacy injunction,” Desmond Browne, the lawyer for one of the people involved, told the Court of Appeal after its ruling to lift the order.
That would be welcomed by critics of such injunctions who say they enable the rich and famous to suppress stories they do not like even if they are true, curbing press freedom and allowing them to create misleading public images of themselves.
In this case, one person involved in the threesome is married to another celebrity and the couple, who have two young children, have said they are committed to each other even though they say they have an open relationship under which extra-marital flings are acceptable.
The Sun on Sunday’s lawyers argued the story would show the couple’s image of marital commitment was incorrect.
While privacy laws in Britain are not as restrictive as in continental European countries, they were tightened in 2000, when British law absorbed the European Convention on Human Rights which guarantees the right to private life.
The Convention also protects freedom of expression, but judges have to balance that against privacy rights.
In the United States, free speech protections are more powerful than privacy rights and a court order like the threesome injunction would be almost unthinkable.
Mark Stephens, a British media lawyer, said celebrity injunctions were already in decline before this case, partly because some had ended in fiasco.
He cited the case of former Manchester United soccer player Ryan Giggs in which an injunction to stop stories about his extra-marital activities failed when he was named in parliament, allowing the press to name him without fear of sanction.
Stephens said the threesome case was a powerful demonstration of the “Streisand effect”, named after singer Barbra Streisand’s failed attempt to have an aerial photo of her Malibu villa taken off a website. The lawsuit resulted in more publicity for the image.
Editing by Timothy Heritage