CONFIDENTIALITY AND INTRUSION: BUILDING STORM DEFENCES RATHER THAN TRYING TO HOLD BACK THE TIDE

Abstract

THE image of King Canute trying to hold back the tide is a popular one used to critique attempts by national courts to restrain the publication of private information in the face of a global and online media. The truth, or at least the allegation, will out. The issue is certainly not a new one. The futility of an injunction in England and Wales, given extensive publication out of the jurisdiction, played a key role in the Spycatcher litigation in the late 1980s. Such futility is a feature of confidentiality or secrecy: the tide of information cannot be held back in an information age. In PJS v News Group Newspapers [2016] UKSC 26, the Supreme Court, endorsing an approach developed by the High Court in several earlier authorities, distinguished between protecting confidentiality and preventing intrusion as twin rationales for the tort of misuse of private information. The intrusion of a pending media storm in the jurisdiction, repeating allegations already widely available, was a further misuse of private information and could usefully be restrained in England and Wales. Even where confidentiality had already been lost, privacy injunctions could continue to play a useful role as a defence against the significant additional intrusion, at least where it could be practicably restrained, and the pending media storm that would accompany a lifting of the injunction represented one such case.