Hold The Front Page: Privacy As Powerless As King Canute Against Tide Of Publicity
The sensational ‘who’s-the-Daddy?’ media storm that engulfed 13-year-old Alfie Patten and two other teenagers clearly touched upon private issues of sex and paternity.
Yet despite the efforts of East Sussex County Council to obtain a comprehensive gagging order, the widely published story can still be told, together with the fact that Tyler Barker, 15 – and not Alfie, as previously believed – is the real father of 15-year-old Chantelle Stedman’s baby, Maisie.
Given the highly personal nature of the story, this might appear surprising – especially since a privacy injunction was sought.
The failed application for a full secrecy order highlighted important arguments in favour of the media’s right to publish, such as Alfie’s right to ‘go public’ in order to control his private information, and consent.
More significantly, the case revealed the limits of the court’s power to gag the publication of intrinsically private information that is already in the public domain.
Section 12(4) of the Human Rights Act says courts must have “particular regard to” the extent to which journalistic material has, or is about to, become available to the public before agreeing to grant any gagging injunction.
Mrs Justice King, the judge who finally struck the balance between the privacy and freedom of expression rights under Articles 8 and 10 of the European Convention on Human Rights after a series of hearings by other judges, took particular note of the worldwide extent of the Stedman coverage, which included thousands of photographs of the children.
She decided the court should heed the example of King Canute, who humbly demonstrated the limit of his powers by showing his fawning subjects that he was actually powerless to halt the rising tide on a Sussex beach.
Mrs Justice King declined to grant the wide-reaching injunction sought, in the face of the risen tide of publicity.
The Sun had initially broken the story with consent from Alfie’s father and Chantelle’s mother. The county council then obtained a temporary gagging order but it contained a ‘public domain exception’ clause which left the media free to publish information already in the public domain.
The Daily Mirror then published news that a DNA test had shown Tyler Barker, not Alfie, was the father of Maisie, which spurred the county council to apply for a comprehensive ban on further reporting of the DNA test and any further developments. The council also wanted a ban on publishing the information and photographs already in the public domain.
But Mrs Justice King “unhesitatingly if reluctantly” rejected the council’s wide-ranging application.
She stressed the court’s powers were limited: “It is accepted that all these articles, photographs and images are in the public domain and may well be unaffected by the proposed Reporting Restrictions Order. Even if the court makes the order sought, it is simply unrealistic to imagine that all the website proprietors all over the world will get notice of the injunction and will act upon it.”
Quoting from the ruling of Mr Justice Eady in the privacy case brought by F1 boss Max Mosley last year, she warned that the court “should guard against slipping into playing the role of King Canute”.
She said: “In my judgment the dam, as Eady J. described it, has indeed burst and in practical terms there is no longer anything which the law can protect; the granting of the injunction at the present juncture would merely be a futile gesture.”
She added: “Even taking into account the harm to Chantelle, Alfie and Maisie which may well follow, allowing the Local Authority application to amend the Reporting Restriction Order by preventing publication of the DNA test and/or of photographs and images already in the public domain would represent a disproportionate interference in the Article 10 rights of the press and of Alfie’s Article 8 and 10 rights to rectify the erroneous information about him.”
A more narrowly drafted injunction remains in force, but it does not prohibit publication of information already in the public domain, including the DNA test and photographs of the children.
The case shows the media are in the driving seat in injunction applications once private information has been widely published. However, it is always a question of fact and degree as to whether information has sufficiently entered the public domain to take it beyond the reach of an injunction.
According to case law, information that is only “in theory” accessible to members of the public, rather than “realistically” accessible, may not be sufficiently in the public domain to have lost all protection of privacy law.
Earlier this year, for example, Barclays Bank was granted an injunction prohibiting The Guardian from continuing to publish confidential information that the newspaper had already published for more than four hours on its website.
Published 16/06/2009. The author of this article is Nigel Hanson
