Online Privacy: Is Trying to Injunct Defunct?

The recent blackmail saga involving a member of the Royal Family has raised once again the difficulty of protecting privacy in the internet age.

Solicitors representing the Royal Family were able to obtain an injunction against the domestic media from revealing the identity of the alleged victim.

However, UK courts do not ordinarily grant injunctions against media or other parties in other parts of the world.

There was an exception in the case of Maxine Carr three years ago, however, the injunction in that case was perceived to be necessary to protect life and limb, not her privacy.

Although the UK media complied with the latest injunction, its usefulness was significantly reduced when foreign media websites revealed the information; something which has happened before to the Royal family.

The information then spread to social networking sites which have become extremely effective for disseminating information globally.

This has led to suggestions of whether injunctions are worthless. Should, for example, foreign newspapers who reveal this information be prosecuted? This would be extremely difficult given that these newspapers were not served with any court papers prohibiting them from revealing the information.

Natural justice dictates that you must be told not to do something before you can be punished for doing it. There are also jurisdictional issues which are too numerous and complex to consider further here which would also make such a proposal remote.

As to the usefulness of injunctions, the fact that a remedy is not as effective as it used to be is surely not a sufficient reason to dispense with that remedy altogether.

The UK media complied with the injunction and, as a consequence, the information did not get disseminated to nearly the same extent as it would have had it been splashed across the front page of every Sunday paper in Britain.

An option may be to try and impose greater controls on ISPs (internet service providers) as they ‘control’ the networks on which information is passed. Broadly speaking, their current liability is limited unless they have actual knowledge the information is unlawful and do not act upon it.

Last year, the Gower Report did consider the possibility of extending current laws; however, it was decided that the government would monitor the situation before making any legislative change.

Although the report was principally concerned with preventing illegal distribution of music in copyright, the same issues of ISP control arise in the area of privacy. ISPs, for their part, would say they are already tightly regulated and argue that since the Royal Mail do not check all mail they distribute, why should they?

It will be interesting to see whether any changes are made to existing legislation and whether injunctions become less popular, because of the potential exposure on the internet.

Richard Findlay is a partner in the IT/IP and Media department of Tods Murray LLP

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